there is a reasonable probability that, but for counsel's errors, the outcome
of the proceedings would have been different. Strickland v. Washington,
466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683
P.2d 504, 505 (1984) (adopting the test in Strickland). Both components of
the inquiry must be shown, Strickland, 466 U.S. at 697, and the petitioner
must demonstrate the underlying facts by a preponderance of the
evidence, Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004).
Defense counsel has a duty to communicate formal plea offers and, to
demonstrate prejudice, a defendant must demonstrate a reasonable
probability that he would have accepted the more favorable plea offer but
for counsel's deficient performance and that the plea would have been
entered without the State's withdrawing the offer or the district court
refusing to accept the plea. Frye, 566 U.S. at , 132 S. Ct. at 1409. We
give deference to the district court's factual findings if supported by
substantial evidence and not clearly erroneous but review the court's
application of the law to those facts de novo. Lacier v. Warden, 121 Nev.
682, 686, 120 P.3d 1164, 1166 (2005).
We conclude that substantial evidence supports the district
court's decision. At the evidentiary hearing the district court heard
testimony from trial counsel, appellant, and the prosecutor. Based on that
testimony, the district court concluded• that appellant failed to
demonstrate that there was a formal plea offer, that trial counsel failed to
communicate an offer to appellant, or that there was prejudice.
Specifically, the district court found that no formal offer was made because
the terms were not set: the prosecutor told appellant that he would also
have to plead guilty to first-degree murder in another case in order to
receive a plea deal in the instant case, and appellant rejected those
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negotiations immediately because they would result in a life sentence in
the other murder case. Trial counsel did not fail to communicate these
negotiations to appellant; appellant spoke directly to the prosecutor about
the negotiations. The district court's factual findings are supported by the
record and, based on those findings, we agree with the district court's
conclusion that appellant failed to demonstrate that trial counsel provided
ineffective assistance. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
A
Pickerii-rg
C/162411
' J.
124-AcL irris—u
Parraguirre
J.
J.
S aitta
cc: Hon. Elissa F. Cadish, District Judge
Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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