Dulcero (Melvin) v. State ( 2014 )

 no authority holding that a defendant's plea is not knowing or voluntary if
he is not advised of the actual restitution amount before entering his
plea." The record on appeal supports the district court's findings, and we
conclude that the district court did not clearly abuse its discretion in this
regard. See Molina v. State, 120 Nev. 185, 190, 87 P.3d 533, 537 (2004)
(defendant bears the burden of proving that his plea is invalid).
Ineffective assistance of counsel
Dulcero contends that the district court abused its discretion
by denying his claims that he received ineffective assistance of counsel
because counsel failed to investigate a defense based on the prescription
drug Paxil, use Paxil as mitigating evidence, challenge the restitution
amount, and ask this court to revisit its decision in State v. Second
Judicial Dist. Court (Pullin), 124 Nev. 564, 188 P.3d 1079 (2008) (holding
that the ameliorative amendments to NRS 193.165 are not retroactive).
When reviewing the district court's resolution of ineffective-assistance
claims, we give deference to the court's factual findings if they are
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). Here, the district court
found that counsel investigated a Paxil defense and made a tactical
decision not to present it as a defense at trial or as a mitigating
circumstance at sentencing, Dulcero failed to demonstrate that counsel's
failure to challenge the restitution amount resulted in prejudice, and
Dulcero failed to show that "counsel's failure to challenge Pullin on appeal
was unreasonable under the prevailing professional norms." The record
reveals that the district court's factual findings are supported by
substantial evidence and are not clearly wrong, and we conclude that
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Dulcero has not demonstrated that the district court erred as a matter of
law. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Strickland v.
Washington, 466 U.S. 668, 687 (1984); Kirksey v. State, 112 Nev. 980, 987,
998,923 P.2d 1102, 1107, 1113-14 (1996); see also Means v. State, 120 Nev.
1001, 1012, 103 P.3d 25, 33 (2004) (petitioner must prove the facts
underlying his claims of ineffective assistance of counsel by a
preponderance of the evidence).
Cruel and unusual punishment
To the extent that Dulcero also claims that his sentence
constitutes cruel and unusual punishment, this claim was not presented in
the court below, see Ford v. Warden, 111 Nev. 872, 884, 901 P.2d 123, 130
(1995), it falls outside the scope of claims that may be properly raised in a
post-conviction habeas petition, see NRS 34.810(1)(a), and we decline to
consider it.
Having concluded that Dulcero is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.
J.
cc: Hon. Lidia Stiglich, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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