Opinion
No. 70869
04-19-2017
JAMES KENNETH FLOYD, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Appellant James Kenneth Floyd appeals from a district court order denying the postconviction petition for a writ of habeas corpus he filed on February 4, 2015. Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge.
Floyd claims the district court erred in denying his ineffective-assistance-of-counsel claims. To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) counsel's performance was deficient because it fell below an objective standard of reasonableness and (2) the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate prejudice sufficient to invalidate a judgment of conviction based on a guilty plea, the petitioner must show, but for trial counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Kirksey v. State, 112 Nev. 980, 988, 923 P.2d 1102, 1107 (1996). Both components of the ineffective-assistance inquiry—deficiency and prejudice—must be shown. Strickland, 466 U.S. at 697. We review the district court's resolution of ineffective-assistance claims de novo, giving deference to the court's factual findings if they are supported by substantial evidence and not clearly wrong. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).
First, Floyd claimed defense counsel was ineffective for failing to advise him of the consequences of the plea, not allowing him sufficient time to review the guilty plea agreement, and pressuring him into signing the guilty plea agreement. The district court conducted an evidentiary hearing and ultimately found these claims were belied by the record and were nothing more than bare allegations. The district court's factual findings are supported by the record on appeal, and we conclude the district court did not err in rejecting these claims. See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984) (a petitioner is not entitled to postconviction relief if his claims are bare or belied by the record).
Second, Floyd claimed defense counsel was ineffective at sentencing for misstating his criminal history and failing to provide him with an opportunity to review the presentence investigation report (PSI). The district court found Floyd was not prejudiced by defense counsel's statements about his drug use because the PSI correctly stated his substance abuse history. The district court also found defense counsel's failure to provide Floyd with an opportunity to review the PSI, which would have enabled Floyd to explain that six of his twelve prior felony convictions arose from the same incident, was not prejudicial because the district court was permitted to consider all of Floyd's prior convictions at sentencing. The district court's factual findings are supported by the record on appeal, and we conclude the district court did not err in rejecting these claims. See generally Martinez v. State, 114 Nev. 735, 738, 961 P.2d 143, 145 (1998) (the district court's broad sentencing discretion allows it to consider "a wide, largely unlimited variety of information to insure that the punishment fits not only the crime, but also the individual defendant").
Having concluded Floyd is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. Carolyn Ellsworth, District Judge
Oronoz, Ericsson & Gaffney, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk