Kennedy (Shawn) v. Warden ( 2013 )

 agreement, Kennedy stated that he was entering his plea freely and
voluntarily without threats or promises of any kind. Although Kennedy
testified at the evidentiary hearing that this statement was a lie and he
pleaded guilty because he feared for his own safety and the safety of his
family, and he testified that his confessions to the police were false, the
district court determined that this testimony was not credible. The court
noted that Kennedy wrote a statement that was attached to the
presentence investigation report in which he admitted to robbing a bar.
When questioned about this at the evidentiary hearing, Kennedy
acknowledged that the only bar he was charged with robbing was the Alibi
Lounge, he did not fear for his safety or the safety of his family when he
wrote the statement, and he was not coerced into writing that statement.
The district court also noted that although Kennedy was given an
opportunity to address the court at sentencing, Kennedy did not assert at
the time that he was innocent of the Alibi Lounge robbery and he never
indicated to the court that he entered his plea under duress. Kennedy
explained at the evidentiary hearing that he did not inform the court of
the prior duress or move to withdraw his plea to the Alibi Lounge robbery
because he thought the sentencing consequences would be the same. The
district court found that Kennedy failed to demonstrate that he was acting
under duress when he entered his guilty plea. We conclude that the
totality of the circumstances supports the district court's determination
that the plea was voluntarily entered, State v. Freese, 116 Nev. 1097, 1104,
13 P.3d 442, 447 (2000), and, therefore, the district court did not abuse its
discretion by denying this claim.
Kennedy also claims that the district court erred by denying
his claim that his counsel was ineffective for failing to investigate an alibi
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witness. When reviewing the district court's resolution of an ineffective-
assistance claim, we give deference to the court's factual findings if
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). The district court found
that counsel was not ineffective because the alleged alibi witness testified
at the evidentiary hearing that she would not have cooperated with
counsel had counsel interviewed her and counsel credibly testified that he
was never aware that there was a possible alibi witness. See Strickland v.
Washington, 466 U.S. 668. 687-88 (1984); Hill v. Lockhart, 474 U.S. 52, 58-
59 (1985). The record supports the district court's findings, and we
conclude the district court did not err as a matter of law.
Having concluded that Kennedy's claims lack merit, we
ORDER the judgment of the district court AFFIRMED.
cc: Hon. Brent T. Adams, District Judge
Mary Lou Wilson
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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