Harlan (Will) v. State ( 2014 )

 Harlan v. State, Docket No. 62263 (Order of Affirmance, November 13,
2013). Thus, this claim is barred by the doctrine of the law of the case.
Hall v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975). Accordingly, the
district court did not err in denying it.
Next, appellant claimed that his guilty plea was unknowing
and involuntary due to ineffective assistance of 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 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).
Appellant claimed that counsel was ineffective for failing to
provide him with an autopsy report and for failing to investigate gunshot
residue before he pleaded guilty. He asserted that the autopsy report
supported a theory of self-defense because it indicated an upward
trajectory of the bullet into the deceased victim's body, whereas counsel
told him that the bullet trajectory was downward and did not support a
theory of self-defense. Appellant's claim regarding the autopsy report is
barred by the doctrine of the law of the case, as this court has already
rejected appellant's contention that counsel did not provide or discuss the
autopsy report before entry of the guilty plea. Harlan v. State, Docket No.
62263 (Order of Affirmance, November 13, 2013). As to appellant's claim
regarding gunshot residue, appellant failed to demonstrate deficiency or
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prejudice. He claimed that counsel should have tested the injured victim's
hat for gunshot residue because the presence of gunshot residue would
have shown that the victim was close to him when the gun was fired, and
that counsel should have tested a scratch mark on the ground to
determine whether the scratch was made by a bullet. However, the
presence of gunshot residue would not have been favorable to appellant
given the victim's preliminary hearing testimony that the victim was close
to appellant when the gun was fired and was likely hit on the head by the
gun, and appellant did not explain how the presence of gunshot residue on
the scratch mark would have impacted his decision to enter a plea.
Therefore, the district court did not err in denying these claims.
Appellant also claimed that counsel failed to "produce findings
made by Special Public Defender office, expert witness" and failed to
"follow up on first Habeas Corpus denial." Appellant failed to demonstrate
deficiency or prejudice, as his claims were bare and naked. See Hargrove
v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984). Therefore, the
district court did not err in denying these claims.
Next, appellant claimed that the district court was biased and
unable to be impartial in ruling on the presentence motion to withdraw his
guilty plea because the district court improperly participated in the plea
negotiations. This claim was outside the scope of claims permissible in a
post-conviction petition for a writ of habeas corpus challenging a judgment
of conviction arising from a guilty plea. See NRS 34.810(1)(a). To the
extent that appellant claimed that his guilty plea was not freely entered
because of the district court's involvement in the plea negotiations, this
claim is belied by the record because there was no improper involvement
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by the district court. Therefore, the district court did not err in denying
this claim. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Hardesty
se irr
a‘: J.
Douglas
0-att7 J.
Cherry
cc: Hon. Douglas W. Herndon, District Judge
Will Henry Harlan
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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