Warden v. Heiman ( 2013 )

 plea-negotiations and trial strategy between Justice and District Courts"
entitled Heiman to relief. We disagree. Heiman offered no evidence at the
evidentiary hearing on his petition demonstrating that his guilty plea to
misdemeanor domestic battery prevented him from presenting his theory
of defense to burglary at trial—namely, that he did not form the intent to
batter the victim until he entered her motel room. See Means v. State, 120
Nev. 1001, 1012, 103 P.3d 25, 33 (2004) (holding that a petitioner must
demonstrate the underlying facts by a preponderance of the evidence). In
fact, trial counsel articulated this theory of defense during closing
arguments when he claimed that Heiman did not possess the requisite
intent to support the burglary count. Therefore, we conclude that counsel
was not deficient and Heiman failed to demonstrate prejudice, see
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Kirksey v.
State, 112 Nev. 980, 987, 923 P.2d 1102, 1107 (1996), and substantial
evidence does not support the district court's determination that Heiman
was entitled to relief on this basis.
Relatedly, Heiman also claimed below that his guilty plea to
misdemeanor domestic battery in the justice court prevented trial counsel
in the district court from "presenting to the jury the jury instruction on
the lesser related offense of battery" and exposed him to consecutive
sentences. The district court did not specifically address these ineffective-
assistance claims in its order and it is not clear whether the district court
granted relief on these grounds. To the extent the district court granted
relief based on these claims, we conclude the district court erred because
Heiman failed to demonstrate that counsel's performance was deficient in
the manner alleged or that he was prejudiced in any way entitling him to
relief. See Strickland, 466 U.S. at 687-88, 94.
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Second, the State contends that the district court erred by
finding that trial counsel was ineffective for failing to request a lesser-
included jury instruction on misdemeanor stalking. Even assuming that
counsel's performance was deficient in this regard, the State presented
overwhelming evidence of Heiman's guilt on the charge of aggravated
stalking. See NRS 200.575(1)-(2). Therefore, we conclude that the district
court erred by determining that Heiman was prejudiced by counsel's
failure to request a jury instruction on misdemeanor stalking. See
Strickland, 466 U.S. at 694. Accordingly, we
ORDER the judgment of the district court REVERSED IN
PART AND REMAND this matter to the district court for proceedings
consistent with this order.'
Douglas
J.
Saitta
'The fast track statement, response, and reply do not comply with
NRAP 3C(h)(1) and NRAP 32(a)(4) because the text is not double-spaced.
Counsel for the parties are cautioned that the failure to comply with the
briefing requirements in the future may result in the imposition of
sanctions. See NRAP 3C(n).
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cc: Hon. Janet J. Berry, District Judge
Attorney General/Carson City
Washoe County District Attorney
Karla K. Butko
Washoe District Court Clerk
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