Cabrera (Charlie) v. State ( 2013 )

 First, appellant claimed that he was pressured into pleading
guilty and that he was depressed and mentally unstable when he entered
the plea. We conclude that appellant failed to demonstrate that his plea
was invalid. At the plea canvass, appellant stated that no one had
threatened or forced him to plead guilty, he had read and understood the
entire plea agreement, and his counsel answered all of his questions
regarding the plea agreement. There is no indication in the record that
appellant was coerced or that he suffered from a mental illness that would
impair his ability to understand the legal proceedings before him. See
NRS 178.400; see also Godinez v. Moran, 509 U.S. 389, 396-97 (1993);
Dusky v. U.S., 362 U.S. 402, 402 (1960). Accordingly, we conclude that the
district court did not err in determining that his guilty plea was knowingly
and voluntarily entered.
Second, appellant claimed that he was not informed that he
would be subject to lifetime supervision until after he entered his plea.
This claim is belied by the record, as the plea agreement stated that he
would receive a sentence of lifetime supervision, and he affirmed his
understanding during the plea hearing that he would be subject to lifetime
supervision. Thus, the district court did not err in denying this claim.
Next, appellant claimed that he received ineffective assistance
of trial counsel. To prove ineffective assistance of counsel sufficient to
invalidate a judgment of conviction based on a guilty plea, a petitioner
must demonstrate that his counsel's performance was deficient in that it
fell below an objective standard of reasonableness, and resulting prejudice
such that there is a reasonable probability that, but for counsel's errors,
petitioner would not have pleaded guilty and would have insisted on going
to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Kirksey v. State, 112
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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 that trial counsel was ineffective for
promising him that he would receive concurrent sentences of life with
parole eligibility after 10 years when he actually received consecutive
sentences, and for telling him that he would receive life without parole if
he went to trial. Appellant failed to demonstrate that his counsel's
performance was deficient or that he was prejudiced. In the plea
agreement and during the plea canvass, appellant acknowledged that no
one promised him a particular sentence, that sentencing was in the
discretion of the district court, and that he had read and understood the
plea agreement. The plea agreement also informed appellant of the
potential sentences he faced. Appellant's mere subjective belief as to a
potential sentence, unsupported by any promise from the court or the
State, is not sufficient to invalidate his guilty plea as involuntary and
unknowing. Rouse v. State, 91 Nev. 677, 679, 541 P.2d 643, 644 (1975).
Furthermore, appellant received significant benefits in pleading guilty—
the State dismissed 13 felonies and 2 misdemeanors in exchange for his
pleading guilty to 2 felonies. In light of the record, appellant failed to
demonstrate that, but for counsel's alleged errors, he would not have
pleaded guilty but would have insisted on going to trial. Thus, we
conclude that the district court did not err in denying this claim.
Second, appellant claimed that trial counsel was ineffective for
failing to discuss possible defenses with him, listen to his explanation of
the offenses, and explain the waiver of his rights to him. Appellant failed
to set forth specific facts in support of these claims, and thus, he failed to
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demonstrate that counsel's performance was deficient or that he was
prejudiced. See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222,
225 (1984). Furthermore, the record belies his claim regarding the waiver
of rights, as he acknowledged during the plea canvass that he understood
the rights that he was giving up by pleading guilty and that he had no
questions about those rights or the plea negotiations. Thus, the district
court did not err in denying these claims.
Appellant also claimed that: (1) his sentence should be
modified because it was based on "fake assumptions and allegations" and
mistakes of fact; (2) his sentence of lifetime supervision did not comport
with legislative intent, as he was not a "dangerous sexual predator with a
high degree of likelihood of recidivism"; (3) his lifetime supervision
sentence was arbitrarily and capriciously imposed in violation of his right
to due process; (4) his lifetime supervision hearing was null and void
because he was not adjudicated a dangerous sexual predator with a high
likelihood of recidivism; and (5) his lifetime supervision sentence and
convictions violated the Double Jeopardy Clause. These claims fall
outside the scope of claims permissible in a post-conviction petition for a
writ of habeas corpus challenging a judgment of conviction based upon a
guilty plea. See NRS 34.810(1)(a). Therefore, we conclude that the
district court did not err by rejecting these claims.
Finally, appellant claimed that he was actually innocent of
some of the charges and that a failure to grant habeas relief would result
in a miscarriage of justice. Even assuming a freestanding actual-
innocence claim is cognizable in a post-conviction petition for a writ of
habeas corpus, appellant made no colorable showing of actual innocence.
See Calderon v. Thompson, 523 U.S. 538, 559 (1998) (explaining that, to
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demonstrate actual innocence, a petitioner must show that "it is more
likely than not that no reasonable juror would have convicted him in light
of. . . new evidence" (internal quotation marks omitted)). Accordingly, we
ORDER the judgment of the district court AFFIRMED. 2
J.
cc: Hon. Jessie Elizabeth Walsh, District Judge
Charlie Cabrera
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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