evidentiary hearing, a petitioner must raise claims that are supported by
specific factual allegations that are not belied by the record and, if true,
would entitle him to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686
P.2d 222, 225 (1984).
First, appellant argues that his counsel was ineffective for
failing to negotiate a plea deal. Appellant fails to demonstrate that his
counsel's performance was deficient or that he was prejudiced. Appellant
included a declaration from an attorney who represented him for a
different criminal matter which states that counsel from the public
defender's office, including counsel for the instant conviction, discussed a
plea offer from the State which would have encompassed appellant's
pending charges and that appellant rejected that offer. Therefore,
appellant fails to demonstrate that his counsel for this matter did not
attempt to negotiate a plea deal. Moreover, appellant fails to meet his
burden to demonstrate that he was prejudiced by his counsel's
performance, as he fails to demonstrate that counsel could have obtained
any more favorable concessions from the State or that the district court
would have accepted it, as there was substantial evidence of his guilt and
appellant had a lengthy criminal record. See Lafler v. Cooper, 566 U.S.
, 132 S. Ct. 1376, 1385 (2012). Therefore, the district court did not
err in denying this claim without conducting an evidentiary hearing.
Second, appellant argues that his counsel was ineffective for
failing to explain the waiver of rights, the charge, or the habitual criminal
enhancement. Appellant also argues that he has difficulty understanding
and retaining information that he reads, which caused him to lack a clear
understanding of the guilty plea agreement. Appellant fails to
demonstrate that his counsel's performance was deficient or that he was
SUPREME COURT
OF
NEVADA
2
(0) 1947A eD
prejudiced. Appellant acknowledged in the guilty plea agreement and at
the plea canvass that he understood the rights he waived, the charge
against him, and the possible sentences. Appellant further acknowledged
in the guilty plea agreement and at the plea canvass that counsel had
answered all of his questions. Appellant fails to demonstrate a reasonable
probability of a different outcome had counsel explained these issues in
more detail to appellant. Therefore, the district court did not err in
denying this claim without conducting an evidentiary hearing.
Third, appellant argues that his counsel was ineffective for
failing to investigate the case in preparation for a possible trial. Appellant
fails to demonstrate that his counsel's performance was deficient or that
he was prejudiced. Appellant acknowledged in the guilty plea agreement
that he had discussed possible defenses with counsel Appellant fails to
demonstrate that there was any evidence available that counsel would
have discovered through reasonably diligent investigation that would have
had a reasonable probability of causing appellant to insist on going to
trial See Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004).
Therefore, the district court did not err in denying this claim without
conducting an evidentiary hearing.
Fourth, appellant argues that his counsel was ineffective for
pressuring him to plead guilty because counsel was too inexperienced for a
trial. Appellant fails to demonstrate that his counsel's performance was
deficient or that he was prejudiced. Appellant acknowledged in the guilty
plea agreement and at the plea canvass that he entered his guilty plea
voluntarily and did not act under duress or coercion. Therefore, the
district court did not err in denying this claim without conducting an
evidentiary hearing.
SUPREME COURT
OF
NEVADA
3
(0) 1947A e
Fifth, appellant argues that his counsel was ineffective for
failing to file more than one motion. Appellant fails to demonstrate either
deficiency or prejudice for this claim as he fails to identify any motion that
objectively reasonable counsel would have filed which would have had a
reasonable probability of causing appellant to refuse to plead guilty and
insist on going to trial. See Hargrove, 100 Nev. at 502-03, 686 P.2d at 225.
Therefore, the district court did not err in denying this claim without
conducting an evidentiary hearing.
Sixth, appellant argues that his counsel was ineffective for
failing to argue that appellant abandoned the crime. Appellant fails to
demonstrate that his counsel's performance was deficient or that he was
prejudiced. Appellant and an accomplice had already begun the process of
breaking into a business when a police officer arrived on the scene. It was
only at that time did they attempt to leave the scene of the crime. Under
these circumstances, appellant did not legally abandon his attempt to
burglarize the business. See Stewart v. State, 85 Nev. 388, 390, 455 P.2d
914, 914-15 (1969) ("[O]nce an intent to commit a crime has been formed
and overt acts toward the commission of that crime have been committed
by a defendant he is then guilty of an attempt, whether he abandoned that
attempt because of the approach of other persons or because of a change in
his intentions due to a stricken conscience." (internal quotations marks
omitted)). Therefore, the district court did not err in denying this claim
without conducting an evidentiary hearing.
Seventh, appellant argues that his counsel was ineffective for
failing to object when the district court failed to discuss the sentencing
range for the habitual criminal enhancement during the plea canvass.
Appellant fails to demonstrate deficiency or prejudice for this claim. After
SUPREME COURT
OF
NEVADA
4
(0) 1947A
the district court informed appellant of the sentencing range for attempted
burglary, the State reminded the district court that it was seeking
adjudication as a habitual criminal. The district court then informed
appellant of the sentencing range for the habitual criminal enhancement
and appellant stated that he understood. Appellant fails to demonstrate a
reasonable probability that he would have refused to plead guilty and
would have insisted on trial had counsel raised an objection as the district
court correctly explained the possible sentences to appellant. Therefore,
the district court did not err in denying this claim without conducting an
evidentiary hearing.
Eighth, appellant argues that his counsel was ineffective for
failing to file a motion to withdraw the guilty plea claiming that appellant
did not understand the possible sentences and that his plea was not
knowing and voluntary. Appellant fails to demonstrate either deficiency
or prejudice for this claim. As discussed previously, appellant was
informed of the possible sentences in the guilty plea agreement and at the
plea canvass. Appellant also acknowledged in the guilty plea agreement
and at the plea canvass that he understood the rights he waived by
entering his plea and that he did so voluntarily. Therefore, appellant fails
to demonstrate that he would have met his burden to prove his plea was
invalid or that a presentence motion to withdraw guilty plea had a
reasonable likelihood of success. See Bryant v. State, 102 Nev. 268, 272,
721 P.2d 364, 368 (1986). Therefore, the district court did not err in
denying this claim without conducting an evidentiary hearing.
Ninth, appellant argues that his counsel failed to properly
investigate or present mitigation evidence regarding appellant's mental
health and difficult past at the sentencing hearing. Appellant fails to
SUPREME COURT
OF
NEVADA
5
(0) 1947A
demonstrate that his counsel's performance was deficient or that he was
prejudiced. At the sentencing hearing, counsel asked for leniency due to
appellant's difficult childhood, his problems with an addiction to
methamphetamine, his friend's suicide, and because he could be
rehabilitated. The district court rejected counsel's argument and
specifically sentenced appellant due to his lengthy criminal history.
Appellant fails to demonstrate a reasonable probability of a different
outcome at the sentencing hearing had counsel investigated these issues
further or presented additional mitigation evidence of a similar nature.
Therefore, the district court did not err in denying this claim without
conducting an evidentiary hearing.
Tenth, appellant argues that his counsel was ineffective for
failing to properly argue against adjudication as a habitual criminal by
stressing that the convictions were nonviolent and remote. Appellant fails
to demonstrate deficiency or prejudice. Counsel argued that the past
convictions were nonviolent. Moreover, appellant fails to demonstrate
that trial counsel's performance was deficient because the habitual
criminal statute makes no special allowance for nonviolent crimes or
remoteness of the prior convictions; these are merely considerations
within the discretion of the district court. See Arajakis v. State, 108 Nev.
976, 983, 843 P.2d 800, 805 (1992). Appellant fails to demonstrate a
reasonable probability of a different outcome at the sentencing hearing
had counsel stressed these issues because appellant had recently been
convicted of two additional felonies and had recently been charged with
additional crimes as well. Therefore, the district court did not err in
denying this claim without conducting an evidentiary hearing.
SUPREME COURT
OF
NEVADA
6
(0) I947A
Eleventh, appellant argues that his counsel was ineffective for
failing to object when the State introduced improper extraneous
information such as convictions that occurred after appellant committed
this offense, that appellant faced additional burglary charges, and that
appellant had used a false name with the district court. Appellant fails to
demonstrate deficiency or prejudice for this claim. Appellant fails to
demonstrate that it was improper for the district court to consider
appellant's criminal history or appellant's fraudulent use of a false name
with the court. See Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161
(1976) (holding that a sentence will not be disturbed on appeal so long as
it was not based solely on impalpable or highly suspect evidence). In
addition, the district court specifically declined to consider the false name
evidence when sentencing appellant. Appellant fails to demonstrate a
reasonable probability of a different outcome had counsel objected to the
State's discussion of this information. Therefore, the district court did not
err in denying this claim without conducting an evidentiary hearing.
Twelfth, appellant argues that counsel was ineffective for
failing to seek a continuance for the sentencing hearing because a
representative of the Attorney General's Office was at the hearing
regarding a pending charge regarding appellant's use of a false name.
Preliminarily, as any later conviction for fraudulent use of a false name
was not encompassed by the instant judgment of conviction, any challenge
relating to that conviction is not cognizable in this post-conviction petition
for a writ of habeas corpus. See NRS 34.724(1). To the extent appellant
argues that the presence of the Attorney General's Office representative
harmed him for this case, appellant fails to demonstrate either deficiency
or prejudice for this claim. This claim is belied by the record as counsel
SUPREME COURT
OF
NEVADA
7
(0) 1947A e
requested a continuance due to the presence of the representative, but
that request was not granted by the district court. See Hargrove, 100 Nev.
at 502-03, 686 P.2d at 225. Appellant also fails to demonstrate prejudice
because the district court specifically declined to consider the false name
evidence when sentencing appellant for the instant conviction. Therefore,
the district court did not err in denying this claim without conducting an
evidentiary hearing.
Having concluded that appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED. 1
k cetati J.
Hardesty
J.
Douglas
J.
cc: Hon. Michael Villani, District Judge
Langford McLetchie LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
'Appellant's reply brief does not comply with NRAP 32( a)(4) because
the text is not double spaced. Counsel for appellant is cautioned that the
failure to comply with the briefing requirements in the future may result
in the imposition of sanctions.
SUPREME COURT
OF
NEVADA
8
(0) 1947A e