Mitchell (Michael) v. Warden ( 2013 )

 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).
The district court denied these claims because it concluded
that counsel squarely presented the issue of intent to the jury and a
voluntary intoxication instruction wasn't warranted under the
circumstances, and because the evidence against Mitchell, which included
testimony that he confessed to entering the business with the intent to
commit a larceny, was overwhelming. The record supports these
determinations, and we conclude that the district court did not err by
denying these claims.
Second, Mitchell contends that the district court erred by
relying on impalpable and highly suspect evidence at sentencing, resulting
in a cruel and unusual sentence. Although Mitchell notes that trial
counsel did not object below and appellate counsel did not raise such on
appeal, he does not argue that the district court erred by finding that
counsel were not ineffective. Instead, he argues that this court should
review his sentence for excessiveness and reasonableness in the first
instance. We decline to do so. See Davis v. State, 107 Nev. 600, 606, 817
P.2d 1169, 1173 (1991) (holding that this court need not consider
arguments raised on appeal that were not presented to the district court
in the first instance), overruled on other grounds by Means v. State, 120
Nev. 1001, 103 P.3d 25 (2004). Even if we were to construe this claim as a
claim arguing that the district court erred by finding that counsel was not
ineffective at sentencing, we conclude that it lacks merit because the
district court did not err by denying the claim.
SUPREME COURT
OF
NEVADA
2
(0) 1947A
Having considered Mitchell's contentions and concluded that
he is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.
,
J.
Gibbons
J.
cc: Hon. Patrick Flanagan, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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