Redman (John) v. State ( 2014 )

 demonstrate 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
Nev. 980, 988, 923 P.2d 1102, 1107 (1996). To warrant an 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 claimed that trial counsel was ineffective for
failing to file a pretrial motion to dismiss charges and for failing to
prepare, make "reasonable strategic decisions," or investigate a defense.
Appellant failed to demonstrate deficiency or prejudice, as his claims were
bare and naked. See id. He failed to allege specific facts as to how a
motion to dismiss charges would have had a reasonable probability of
success. Further, he did not explain what decisions counsel should have
made, how counsel should have prepared, or what defense counsel should
have investigated. Therefore, the district court did not err in denying
these claims.
Second, appellant claimed that trial counsel was ineffective at
sentencing for failing to object to inflammatory remarks by the State and
for making only two objections. Appellant failed to demonstrate deficiency
or prejudice. The record shows that counsel objected at sentencing to the
victim's testimony, to the lack of notice of that testimony, and to the
State's allegations of other sexual abuse by appellant. Appellant failed to
identify any other objections or arguments that counsel should have made.
Therefore, the district court did not err in denying these claims.
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Third, appellant claimed that he was misled by counsel as to
the consequences of the plea agreement and that trial counsel was
ineffective for failing to move for a continuance, move for an evidentiary
hearing, lodge an appeal, or file to withdraw after the State argued for a 7-
to 20-year prison sentence at the sentencing hearing. Appellant failed to
demonstrate deficiency or prejudice because he failed to support these
claims with specific facts that, if true, would entitle him to relief. See id.Therefore, the district court did not err in denying these claims.
Next, appellant claimed that he received ineffective assistance
of appellate counsel. To prove ineffective assistance of appellate counsel, a
petitioner must demonstrate that counsel's performance was deficient in
that it fell below an objective standard of reasonableness, and resulting
prejudice such that the omitted issue would have a reasonable probability
of success on appeal. Kirksey, 112 Nev. at 998, 923 P.2d at 1114.
Appellate counsel is not required to raise every non-frivolous issue on
appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). Rather, appellate
counsel will be most effective when every conceivable issue is not raised on
appeal. Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989). Both
components of the inquiry must be shown. Strickland, 466 U.S. at 697.
First, appellant claimed that appellate counsel was ineffective
for failing to argue on direct appeal that the victim's statement at
sentencing exceeded the scope permissible under NRS 176.015(3).
Appellant failed to demonstrate deficiency or prejudice. Appellant did not
identify any part of the victim's statement that should not have been
admitted at sentencing. Thus, he failed to demonstrate that this issue
would have had a reasonable probability of success on appeal.
Accordingly, the district court did not err in denying this claim.
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Second, appellant claimed that appellate counsel was
ineffective for raising only two grounds on appeal, for filing a fast track
statement that consisted of only three pages and four case citations, and
for proffering no reply brief. Appellant failed to demonstrate deficiency or
prejudice, as his claims are bare and naked. See Hargrove, 100 Nev. at
502-03, 686 P.2d at 225. Appellant did not identify any other arguments
or law that counsel should have raised on appeal. Therefore, the district
court did not err in denying this claim.
Next, appellant claimed that his plea was invalid because he
was not informed that probation and lifetime supervision were
inapplicable to his offense. Appellant's assertions are belied by the record,
as he was eligible for probation and his offense required the imposition of
lifetime supervision. Therefore, he failed to demonstrate that his plea was
not knowingly entered, and the district court did not err in denying this
claim. See Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986)
(holding that a guilty plea is presumptively valid and a petitioner carries
the burden of establishing that the plea was not entered knowingly and
intelligently); see also Hubbard v. State, 110 Nev. 671, 675, 877 P.2d 519,
521 (1994).
Next, appellant claimed that the district court erred at
sentencing by allowing the victim to testify without proper notice to the
defense, by considering unproven bad acts, and by imposing a sentence
that was disproportionate to the offense. These claims were already
considered and rejected by this court on direct appeal, Redman v. State,
Docket No. 60514 (Order of Affirmance, December 13, 2012), and thus are
barred by the doctrine of the law of the case, Hall v. State, 91 Nev. 314,
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316, 535 P.2d 797,799 (1975). Therefore, the district court did not err in
denying these claims.
Appellant also claimed that the State committed prosecutorial
misconduct and withheld evidence, there was insufficient evidence to
support his conviction, the district court was biased, the district court
abused its discretion by relying on false information and allowing the
victim to testify at sentencing, and the sentence and sentencing hearing
violated his constitutional rights. 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, the district court did not err in denying these
claims. Accordingly, we
ORDER the judgment of the district court AFFIRMED. 2
/
Hardesty
-;sor
Douglas
te ,
aut.
Cherry
J.
2 In
light of this disposition, we deny as moot appellant's motion for
appointment of counsel. We 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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cc: Hon. Douglas W. Herndon, District Judge
John Redman
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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