permissible in a motion to modify sentence. See Edwards v. State, 112
Nev. 704, 708, 918 P.2d 321, 324 (1996). Therefore, without considering
the merits of any of these claims, we conclude that the district court did
not err in denying relief.
Motion to withdraw guilty plea
In his February 5, 2014, motion, appellant claimed that his
counsel was ineffective for permitting appellant to plead guilty while on
mental health medication and for failing to inform him of the
consequences of pleading guilty. Appellant also claimed that he should
not have received the deadly weapon enhancement because he asserted
that he did not use a deadly weapon in the commission of the crime.
This court has recently held that a post-conviction petition for
a writ of habeas corpus is the exclusive remedy to challenge the validity of
a guilty, plea after sentencing and that a post-conviction motion to
withdraw a guilty plea should be construed as a post-conviction petition
for a writ of habeas corpus. See Harris v. State, 130 Nev. „ 329
P.3d 619, 628 (2014). NRS chapter 34 bars petitions that are successive,
abusive, and/or are filed more than one year after the filing of the
judgment of conviction where no direct appeal was taken, unless the
petitioner can demonstrate good cause and prejudice. See NRS 34.726(1);
NRS 34.810(2), (3); see also State v. Eighth Judicial Dist. Court (Riker),
121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005) ("Application of the
statutory procedural default rules to post-conviction habeas petitions is
mandatory.").
Here, the district court considered appellant's claims on the
merits and did not discuss the procedural bars from NRS chapter 34 or
refer to the fact that appellant's motion was filed almost ten years after
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the filing of the judgment of conviction on April 27, 2004. As discussed in
Harris, the district court should have construed appellant's motion as a
post-conviction petition for a writ of habeas corpus and then permitted
appellant a reasonable time period to cure any defects with respect to the
procedural requirements of NRS chapter 34. See 130 Nev. at , P.3d at
628-29. We therefore reverse the decision of the district court and remand
for the district court to construe the motion as a post-conviction petition
for a writ of habeas corpus and to provide appellant an opportunity to cure
any defects within a reasonable time period as set by the district court.
Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order. 2
frat-t. 4.1 , J.
Hardesty
J.
J.
CherrY
This order constitutes our final disposition of this appeal. Any
2
subsequent appeal shall be docketed as a new matter.
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74a111.1.11111.11111111111
cc: Hon. Elissa F. Cadish, District Judge
Vornelius Jamal Phillips
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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