eLaws | Code of Federal Regulations | United States Code |
 All Courts
 State Courts
 Nevada Supreme Court
 2014-04

Sierra (Siegfred) v. State ( 2014 )


Menu:
 
  •                 have allowed him to "argue for [c]ancellation of Hemoval and avoid
deportation."2 We disagree. 3
When reviewing the district court's resolution of an
ineffective-assistance claim, we give deference to the court's factual
findings if they are supported by substantial evidence and not clearly
wrong 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 conducted a hearing, heard arguments from counsel, and
determined that Sierra's former counsel was not deficient and he failed to
demonstrate prejudice.    See Hill v. Lockhart,
    474 U.S. 52
    , 58-59 (1985);
Strickland v. Washington,
    466 U.S. 668
    , 687-88, 694 (1984); Kirksey v.
State,
    112 Nev. 980
    , 987-88,
    923 P.2d 1102
    , 1107 (1996); see also Cullen v.
Pinholster, 563 U.S. „
    131 S. Ct. 1388
    , 1408 (2011) ("We have
recently reiterated that [s]urmounting Strickland's high bar is never an
easy task." (quotation marks omitted) (alteration in original)). The district
court also determined that "an evidentiary hearing was not necessary."
2This court has recognized that an ineffective assistance of counsel
claim will lie only where the defendant has a constitutional or statutory
right to the appointment of counsel. See McKague v. Warden,
    112 Nev. 159
    , 164-65,
    912 P.2d 255
    , 258 (1996). The district court did not address
the matter but apparently conceded that Sierra was entitled to the
effective assistance of counsel at the hearing in question and reviewed his
claims on the merits. See Gagnon v. Scarpelli,
    411 U.S. 778
    , 790 (1973).
3 Sierraalso raises issues specific to the district court's denial of his
"Motion for Reconsideration of Probation Violation." A district court order
denying a motion for reconsideration is not independently appealable,
therefore, we lack jurisdiction to consider any such claims. See Phelps v.
State,
    111 Nev. 1021
    , 1022-23,
    900 P.2d 344
    , 344-45 (1995); Castillo v.
State,
    106 Nev. 349
    , 352,
    792 P.2d 1133
    , 1135 (1990).
SUPREME COURT
OF
NEVADA
2
(01 I94Th
See NRS 34.770(1); Nika v. State,
    124 Nev. 1272
    , 1300-01,
    198 P.3d 839
    ,
858 (2008). We conclude that the district court's findings are supported by
substantial evidence, see Riley v. State,
    110 Nev. 638
    , 647,
    878 P.2d 272
    ,
278 (1994), and the district court did not err by rejecting Sierra's
ineffective-assistance claim. Accordingly, we
ORDER the judgment of the district court AFFIRMED. 4
Pidem             J.
Pickering
Paritagu,irre
J.
Saitta
cc: Hon. Carolyn Ellsworth, District Judge
Xavier Gonzales
Attorney GenerallCarson City
Clark County District Attorney
Eighth District Court Clerk
4The   fast track reply submitted by Sierra fails to comply with NRAP
3C(h)(1) because the footnotes are not "in the same size and typeface as
the body of the brief," NRAP 32(a)(5). Counsel for Sierra is cautioned that
the failure to comply with the briefing requirements in the future may
result in the imposition of sanctions. See NRAP 3C(n).
SUPREME COURT
OF
NEVADA
3
(0) 1947A