to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Kirksey v. State, 112
Nev. 980, 988, 923 P.2d 1102, 1107 (1996). Both components of the
inquiry must be shown. Strickland v. Washington, 466 U.S. 668, 697
(1984).
First, appellant claimed counsel was ineffective for failing to
file a motion to have the victim undergo a psychological evaluation.
Appellant failed to demonstrate deficiency or prejudice. Appellant's initial
counsel filed such a motion and was in the midst of litigating it when he
withdrew and Jackson was appointed to replace him. Because the motion
was still pending, Jackson was not unreasonable in not filing a new
motion. We therefore conclude that the district court did not err in
denying this claim.
Second, appellant claimed counsel was ineffective for failing to
impeach the victim with her criminal record and prior false accusations of
sexual assault. Appellant failed to demonstrate deficiency or prejudice.
Because no evidentiary hearings were held between his appointment and
appellant's guilty plea, counsel had no opportunity or need to impeach the
victim. We therefore conclude that the district court did not err in denying
this claim.
Third, appellant claimed counsel was ineffective for failing to
reinstate appellant's bond. Appellant failed to demonstrate deficiency or
prejudice. An attorney has no authority to reinstate a bond. Further,
counsel successfully moved to have bail reset after appellant was taken
back into custody. We therefore conclude that the district court did not err
in denying this claim.
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Fourth, appellant claimed counsel was ineffective because he
had a conflict of interest and because he made appellant accept the State's
plea offer. Appellant failed to demonstrate deficiency or prejudice because
he failed to support these claims with specific facts that, if true, would
have entitled him to relief. See Hargrove v. State, 100 Nev. 498, 502-03,
686 P.2d 222, 225 (1984) (holding that "bare" or "naked" claims are
insufficient to grant relief). To the extent appellant claimed that counsel's
failure to reinstate his bond forced appellant to accept the plea offer, his
claim failed for the reasons stated above. We therefore conclude that the
district court did not err in denying these claims.
Next, appellant raised two claims of ineffective assistance of
appellate counsel. To prove ineffective assistance of appellate counsel, a
petitioner must demonstrate (a) that counsel's performance was deficient
in that it fell below an objective standard of reasonableness and (b)
resulting prejudice such that the omitted issue would have a reasonable
probability of success on appeal. Kirksey, 112 Nev. at 998, 923 P.2d at
1114. Appellate counsel is not required to—and will be most effective
when he does not—raise every non-frivolous issue on appeal. Jones v.
Barnes, 463 U.S. 745, 751 (1983), as limited by Smith v. Robbins, 528 U.S.
259, 288 (2000); Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953
(1989). Both components of the inquiry must be shown. Strickland, 466
U.S. at 697.
First, appellant claimed counsel was ineffective for failing to
raise the bail-revocation issue. Appellant failed to demonstrate deficiency
or prejudice. Because counsel successfully moved to have bail reset and
appellant did not allege that he was denied presentence credit for the time
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he was in custody after his bail was revoked, he failed to demonstrate a
reasonable probability of a different outcome on appeal. See generally
Application of Knast, 96 Nev. 597, 614 P.2d 2 (1980) (recognizing a right to
have bail set); Anglin v. State, 90 Nev. 287, 292, 525 P.2d 34, 37 (1974)
(holding that a defendant unable to post bail has a right to credit for time
spent in county jail awaiting adjudication). We therefore conclude that
the district court did not err in denying this claim.
Second, appellant claimed counsel was ineffective for failing to
argue that the district court violated the Confrontation Clause when it did
not state its reasons for imposing the sentence it did. Appellant failed to
demonstrate deficiency or prejudice. The Confrontation Clause does not
apply to sentencing hearings. Summers v. State, 122 Nev. 1326, 1332-33,
148 P.3d 778, 782-83 (2006). Further, even if it did, it would not convey
any right to hear a court's rationale for a sentence imposed. See U.S.
Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy
the right. . . to be confronted with the witnesses against him." (emphasis
added)). Finally, appellant's claim was belied by the record because the
district court did announce its reasons at a subsequent hearing on
appellant's motion to reconsider the sentence. See Hargrove, 100 Nev. at
502-03, 686 P.2d at 225. We therefore conclude that the district court did
not err in denying this claim.
Appellant also claimed that his guilty plea was invalid.
Specifically, he claimed that the district court "might have suborned"
actions of counsel and the State in revoking his bail to force the plea
negotiations. A guilty plea is presumptively valid, and appellant carried
the burden of establishing that the plea was not entered knowingly and
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intelligently. Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986);
see also Hubbard v. State, 110 Nev. 671, 675, 877 P.2d 519, 521 (1994). In
determining the validity of a guilty plea, this court looks to the totality of
the circumstances. State v. Freese, 116 Nev. 1097, 1105, 13 P.3d 442, 448
(2000); Bryant, 102 Nev. at 271, 721 P.2d at 367.
Appellant failed to demonstrate that his guilty plea was
invalid. First, appellant did not state how simply being in custody could
force his agreement to a plea offer. Second, appellant acknowledged in his
guilty plea agreement and during his plea colloquy that he was entering
his plea freely, voluntarily, and without threat or force. Finally, the
district court revoked appellant's bail because appellant allegedly made
death threats against the deputy district attorney prosecuting his case,
and, although appellant denied threatening to kill anyone, he admitted
that he said he would "hurt somebody." We therefore conclude that the
district court did not err in denying this claim.
Finally, appellant claimed that the State had insufficient
evidence to convict, that there was a conspiracy regarding his family court
case, that he was denied the right to a fair trial and impartial jury, and
that the district court judge was biased and engaged in misconduct. These
claims were outside the scope of claims permissible in a post-conviction
petition for writ of habeas corpus challenging a judgment of conviction
based on a guilty plea. See NRS 34.810(1)(a). We therefore conclude that
the district court did not err in denying his petition.
Post-conviction petition for a writ of habeas corpus (credits)
In his petition, filed on February 17, 2012, appellant
challenged the computation of time he has served, claiming he was
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entitled to additional statutory credits. Appellant failed to serve his
petition on the officer by whom he was confined and on the Attorney
General. NRS 34.730(2). We therefore conclude that the district court did
not err in denying his petition without prejudice. Cf. Miles v. State, 120
Nev. 383, 387, 91 P.3d 588, 590 (2004).
For the foregoing reasons, we
ORDER the judgments of the district court AFFIRMED. 2
Gibbons
J.
Saitta
cc: Hon. Michelle Leavitt, District Judge
Albert Leon Williams
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
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