Tate (Lionel) v. State

Nev. 850, 853, 784 P.2d 951, 953 (1989). Both components of the inquiry must be shown. Strickland v. Washington, 466 U.S. 668, 697 (1984). First, appellant claimed that his appellate counsel failed to federalize his claims for relief on appeal. Appellant failed to demonstrate that there was a reasonable probability of a different outcome had appellate counsel federalized his claims on appeal. Therefore, we conclude that the district court did not err in denying this claim. Second, appellant claimed that his appellate counsel failed to raise a claim that his guilty plea was coerced because he was not provided enough time to consider the plea and discovery and the amended indictment failed to vest jurisdiction in the court. Appellant failed to demonstrate that his counsel's performance was deficient or that he was prejudiced. Appellant cannot ordinarily challenge the validity of the guilty plea on direct appeal without first having litigated the claim in the district court or without the error being obvious from the record. See Smith v. State, 110 Nev. 1009, 1010 n.1, 879 P.2d 60, 61 n.1 (1994); Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986). Appellant did not file or pursue a presentence motion to withdraw a guilty plea in the district court, and the error was not obvious from the record. Therefore, we conclude that the district court did not err in denying this claim. 2

Third, appellant claimed that his appellate counsel failed to argue that the district court did not have jurisdiction to accept his plea because the amended indictment changed the category of the offenses from Category B trafficking to Category A trafficking. Appellant's claim is belied by the record as appellate counsel did argue that the indictment was not properly amended. Appellant failed to demonstrate that there was a reasonable probability of a different outcome had appellate counsel raised further arguments on this issue. Therefore, we conclude that the district court did not err in denying this claim. Finally, appellant claimed that the appeal-deprivation remedy provided for in Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994) was unconstitutional. This claim was outside the scope of claims permissible in a post-conviction petition for a writ of habeas corpus challenging the validity of a judgment of conviction arising from a guilty plea. NRS 34.810(1)(a). Accordingly, we ORDER the judgment of the district court AFFIRMED.

Ac, ,J. Hardesty

p p...), Parraguirre J.

...continued was invalid. Tate v. State, Docket No. 57228 (Order of Affirmance, November 18, 2011).

SUPREME COURT OF NEVADA 3 (0) 1947A -41 Ar:

cc: Hon. Douglas W. Herndon, District Judge Lionel Tate Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

Footnotes

[2] We note that appellate counsel argued that the indictment was improperly amended and that the plea was invalid because appellant felt pressured and was unaware of the alleged defect to the amended indictment. This court concluded that appellant waived challenging any claim to the amended indictment by entry of his plea and that under the totality of the circumstances appellant failed to demonstrate that his plea continued on next page...