Ponce (Freddy) v. State

 case to the district court so that it can construe Ponce's post-conviction
motion to withdraw his guilty plea as a petition for a writ of habeas
corpus.
A post-conviction petition for a writ of habeas corpus is an
independent proceeding that seeks collateral review of the conviction, and
thus, it may be litigated contemporaneously with the direct appeal and a
pending direct appeal would not divest the district court of jurisdiction to
consider the collateral petition. See NRS 34.724(2)(a) (providing that a
habeas corpus petition is not a substitute for and does not affect the
remedy of direct review); NRS 34.730(3) (providing that the clerk of the
district court shall file a habeas corpus petition as a new action separate
and distinct from any original proceeding in which a conviction has been
had); Daniels v. State, 100 Nev. 579, 580, 688 P.2d 315, 316 (1984)
(recognizing that a post-conviction proceeding is separate from the direct
appeal), overruled on other grounds by Varwig v. State, 104 Nev. 40, 752
P.2d 760 (1988); Groesbeck v. Warden, 100 Nev. 259, 260, 679 P.2d 1268,
1268-69 (1984) (recognizing that a post-conviction habeas corpus petition
is a petition seeking collateral review).
Had we considered the merits of the district court's decision on
Ponce's motion, as the State requests, we would have also remanded this
case to the district court because it did not conduct an evidentiary hearing
to provide Ponce with the opportunity to substantiate his claim that
counsel was ineffective before deciding whether Ponce's plea was knowing,
intelligent, and voluntary, or deciding whether withdrawal was otherwise
necessary to correct a manifest injustice. See Rubio v. State, 124 Nev.
1032, 1046, 194 P.3d 1224, 1233 (2008) (explaining that this court "will
not look only to the technical sufficiency of a plea canvass to determine
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whether a plea is invalid, but will also look to whether the district court
conducted an evidentiary hearing to determine if the plea was
constitutionally infirm or whether such a hearing was unnecessary."
(internal quotation marks omitted)). Therefore, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.'
J.
Pickering
J.
Parraguirre n
J.
Saitta
cc: Hon Michael Villani, District Judge
Mario D. Valencia
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
'Although we filed the opening brief submitted by Ponce, it fails to
comply with the Nevada Rules of Appellate Procedure because the text is
not double-spaced. See NRAP 32(a)(4). Counsel for Ponce is cautioned
that failure to comply with this court's briefing requirements may result in
the imposition of sanctions. See NRAP 28.2(b).
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