IN THE SUPREME COURT OF THE STATE OF NEVADA
HARVEY DEANDRE MCDANIELS, No. 80326
Appellant,
vs.
THE STATE OF NEVADA, PLED
Respondent.
SEP 1 8 2020
EL' 7 4F ;-1. EP.fPM4
CLE UPREME
BY
DEPUTY CLERK
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; Valerie Adair, Judge.
Appellant Harvey Deandre McDaniels first argues that the
district court should have allowed him to withdraw his guilty plea when the
State argued for a more severe sentence than the parties had originally
stipulated. The guilty plea agreement provided that the State would be
relieved of its obligation to argue for the stipulated sentence if McDaniels
failed to interview with the Department of Parole and Probation, as
McDaniels failed to do. The Court of Appeals considered and rejected this
claim on direct appeal. McDaniels v. State, Docket No. 75074-COA (Order
of Affirmance, July 17, 2019). The doctrine of the law of the ease prevents
relitigation of this claim. See Hall v. State,
,
'Having considered the pro se brief filed by appellant, we conclude
that a response is not necessary. NRAP 46A(c). This appeal therefore has
been submitted for decision based on the pro se brief and the record. See
NRAP 34(f)(3).
20-34(146
1300-01,
(2008) (providing that a petitioner is entitled to
an evidentiary hearing when the claims asserted are supported by specific
factual allegations that are not belied or repelled by the record and that, if
true, would entitle the petitioner to relief).
McDaniels next argues that the district court abused its
discretion in failing, sua sponte, to schedule an interview for McDaniels
with the Departraent of Parole and Probation while he was in custody.
McDaniels waived this claim by not raising it on direct appeal, Franklin v.
State,
(1994) (holding that "claims
that are appropriate for a direct appeal must be pursued on direct appeal,
or they will be considered waived in subsequent proceedings," including a
claim that the district court was biased), and the claim fell outside the
limited scope of a postconviction habeas petition that challenges a judgment
of conviction based on a guilty plea as set forth in NRS 34.810(1)(a). The
district court therefore did not err in denying this claim without an
evidentiary hearing.
McDaniels finally argues that counsel should have filed a
written motion to withdraw his guilty plea and that his plea ceased to be
voluntary when he was not permitted to withdraw it after the district court
imposed a more severe sentence than the stipulated term. McDaniels has
not demonstrated deficient performance or prejudice. Strickland v.
Washington,
(1984) (adopting the test in Strickland). Counsel
argued at sentencing for a withdrawal of McDaniels plea, and the district
court rejected counsel's arguments. McDaniels has not identified what
additional argument counsel should have raised in a written motion and
has not shown that such a motion would have been meritorious. The district
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court therefore did not err in denying this claim without an evidentiary
hearing.2 See Ennis v. Stale,
(2006)
(Trial counsel need not lodge futile objections to avoid ineffective assistance
of counsel claims.").
Having considered McDaniels contentions and concluded that
they do not warrant relief, we
ORDER the judgment of the district court AFFIRMED.
Parraguirre
Hardesty
a
Gi"? /K.• , J.
Cadish
cc: Hon. Valerie Adair, District Judge
Harvey Deandre McDaniels
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
'Insofar as McDaniels claims that he was denied his right to argue
that he acted in self-defense, he waived the right to raise that defense when
he pleaded guilty, and that claim does not warrant relief.
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