Muldoon (Thomas) v. State

ineffective assistance of 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 there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland). To demonstrate prejudice regarding the decision to enter a guilty plea, a petitioner must 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). Both components of the inquiry must be shown, Strickland, 466 U.S. at 697, and the petitioner must demonstrate the underlying facts by a preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We give deference to the district court's factual findings if supported by substantial evidence and not clearly erroneous but review the court's application of the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). First, appellant claimed that trial counsel failed to adequately assist him in light of his disability. Appellant failed to provide any specific facts in support of this claim and thus he failed to demonstrate that his

...continued original petition for a writ of mandamus. See Peck v. Grouser, 129 Nev. 295 P.3d 586, 588 (2013).

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counsel's performance was deficient. Appellant was evaluated for competency and found to be competent. Appellant was further personally canvassed about entering a guilty plea. Appellant failed to demonstrate that there was a reasonable probability that he would not have entered a guilty plea and would have gone to trial in light of the benefit he received—the State agreed not to seek habitual criminal adjudication. Therefore, we conclude that the district court did not err in denying this claim. Second, appellant claimed that his trial counsel intended to do him harm, had malice, and was deceitful. Appellant failed to provide any facts in support of this claim, and thus he failed to demonstrate that his counsel's performance was deficient. Appellant failed to demonstrate that he was prejudiced in light of the benefit discussed above. Therefore, we conclude that the district court did not err in denying this claim. Third, appellant claimed that his trial counsel was ineffective at sentencing for not presenting the court with his medical history, for not securing an expert to discuss appellant's rehabilitation, and for not asking for probation. Appellant failed to demonstrate that his trial counsel's performance was deficient as appellant himself informed the district court about his disability and the district court accepted appellant's statement of fact regarding his disability (brain injury). Appellant's counsel did argue for leniency and presented the court with letters from appellant's mother and social worker. In light of his prior convictions and the facts of this offense, appellant failed to demonstrate that there was a reasonable probability of a different outcome at sentencing had trial counsel presented the court with more information about appellant's medical

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history, presented an expert regarding rehabilitation, or asked for probation. Therefore, we conclude that the district court did not err in denying this claim. Accordingly, we ORDER the judgment of the district court AFFIRMED. 3

Pickering

J. Parraguirre

J.

cc: Hon. David B. Barker, District Judge Thomas N Muldoon Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

Footnotes

[3] 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. SUPREME COURT OF NEVADA 4 (0) 1947A 4ipip