Vargo v. Warden, Nevada State Prison

581 P.2d 855 (1978)

James Emery VARGO, Appellant,
v.
WARDEN, NEVADA STATE PRISON, Respondent.

No. 10975.

Supreme Court of Nevada.

July 26, 1978.

James Emery Vargo, in pro per.

Robert List, Atty. Gen., Carson City, George E. Holt, Dist. Atty., and Stephen Jones, Deputy Dist. Atty., Clark County, Las Vegas, for respondent.

OPINION

PER CURIAM:

In November 1977, this court affirmed appellant's murder conviction. Vargo v. State, 93 Nev. 554, 570 P.2d 1142 (1977). Thereafter, appellant timely filed an in pro per petition for post-conviction relief in the Eighth Judicial District Court.

The petition alleged that Vargo made a "verbal request" that on the appeal counsel present the several issues that are now raised for the first time. He argues that counsel's failure to do so constitutes a showing of the "good cause ... for the failure to present such claims" on his direct appeal, that is required by NRS 177.375(2).

Even though no opposition to the petition was filed, it was summarily dismissed by the district judge and Vargo has appealed.

We do not reach the merit, if any, of the appeal. Vargo's claims have not been considered and resolved, either from the record, or after an evidentiary hearing. See Stewart v. Warden, 92 Nev. 588, 555 P.2d 218 (1976). See also Smith v. Yeager, 393 U.S. 122, 89 S.Ct. 277, 21 L.Ed.2d 246 (1968). Cf. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and its progeny. Accordingly, we vacate the district judge's order dismissing the petition for post-conviction relief and remand this case for further proceedings, including the appointment of counsel to represent petitioner.