Opinion
No. 62431
12-12-2013
DENNIS SAVARESE, Appellant, v. THE STATE OF NEVADA, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123
ORDER OF AFFIRMANCE
This is a proper person appeal from an order denying a petition for a writ of coram nobis. Eighth Judicial District Court, Clark County; Kathleen E. Delaney, Judge.
This appeal has been submitted for decision without oral argument, NRAP 34(f)(3), and we conclude that the record is sufficient for our review and briefing is unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975).
Appellant filed a petition for a writ of coram nobis on November 6, 2012, challenging the validity of his 1994 judgment of conviction and sentence. The district court entered a written order summarily denying the petition. This appeal followed.
A petition for a writ of coram nobis is an available remedy in the instant case because appellant was no longer in custody on the conviction being challenged in his petition. See Trujillo v. State, 129 Nev. ___, ___, 310 P.3d 594, ___ (2013).
In his petition, appellant first claimed that the district court's plea canvass was inadequate rending his plea involuntary and unknowing, he received ineffective assistance of counsel, and there was no factual basis for his plea. None of these claims are properly raised in a petition for a writ of coram nobis because they are claims arising from alleged factual errors that are on the record, the claims could have been raised earlier, or they involve legal and not factual errors. See Trujillo, 129 Nev. at ___, 310 P.3d at ___.
Appellant next claimed that he suffered a cognitive impairment at the time of the plea and conviction. While a claim that a petitioner was mentally incompetent at the time of the plea may fit within the scope of a petition for a writ of coram nobis, see id., appellant failed to demonstrate the district court made any errors of fact that would have precluded the judgment from being entered because appellant failed to demonstrate that he was incompetent at the time of his plea or sentencing. See Godinez v. Moran, 509 U.S. 389, 396-97 (1993); Dusky v. United States, 362 U.S. 402, 402 (1960); Riker v. State, 111 Nev. 1316, 1325, 905 P.2d 706, 711 (1995); Melchor-Gloria v. State, 99 Nev. 174, 180, 660 P.2d 109, 113 (1983). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
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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_________________, J.
Pickering
_________________, J.
Hardesty
_________________, J.
Cherry
cc: Hon. Kathleen E. Delaney, District Judge
Dennis Savarese
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk