Owen (Don) v. State ( 2013 )

 First, appellant claimed that trial counsel was ineffective
because of a conflict of interest. Specifically, he claimed that since the
victim in this case, appellant's ex-wife, was an attorney, his trial counsel
must have had a personal relationship with her. Further, he claimed that
because of the personal relationship, trial counsel would not bring up
issues of conflict of interest against the district court. He also claimed
that because of the conflict of interest he was convicted of felonies instead
of misdemeanor domestic violence.
Appellant failed to demonstrate that trial counsel was
deficient or that he was prejudiced because he failed to demonstrate that
there was a conflict of interest. To show that an actual conflict of interest
existed, appellant must demonstrate that his counsel was "placed in a
situation conducive to divided loyalties." Clark v. State, 108 Nev. 324,
326, 831 P.2d 1374, 1376 (1992) (quoting Smith v. Lockhart, 923 F.2d
1314, 1320 (8th Cir. 1991)). "Conflict of interest and divided loyalty
situations can take many forms, and whether an actual conflict exists
must be evaluated on the specific facts of each case." Id. (quoting Smith,
923 F.2d at 1320). Appellant failed to demonstrate that trial counsel was
placed in a situation that divided her loyalties. He failed to demonstrate
that trial counsel had a personal relationship with appellant's ex-wife or
how that relationship affected trial counsel's performance. According to
the documents presented by appellant, it was appellant that directed his
trial counsel to approach his ex-wife regarding what she wanted him to
plead to. He agreed to plead guilty to what was suggested by her.
Further, the plea canvass indicates that appellant's plea was entered
knowingly, voluntarily, and intelligently. See Bryant v. State, 102 Nev.
268, 272, 721 P.2d 364, 368 (1986); Hubbard v. State, 110 Nev. 671, 675,
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877 P.2d 519, 521 (1994). Therefore, the district court did not err in
denying this claim.
Second, appellant claimed that trial counsel was ineffective for
failing to challenge that his bail was excessive and was raised after the
State found out who the victim was. This claim is 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 because it
does not challenge the validity of the plea. NRS 34.810(1)(a). Therefore,
the district court did not err in denying this claim. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Douglas
J.
Saitta
cc: Hon. Jerome T. Tao, District Judge
Don Scott Owen
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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