ADRIAN POWELL v. THE STATE OF NEVADA (2026)

ORDER OF AFFIRMANCE

Adrian Powell appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on November 18, 2024. Eighth Judicial District Court, Clark County; Ronald J. Israel, Judge.

Powell was convicted, pursuant to a guilty plea, of two counts each of conspiracy to commit robbery, burglary while in possession of a deadly weapon, first-degree kidnapping with the use of a deadly weapon, and six counts of robbery with the use of a deadly weapon. Powell argues the district court erred by denying his claims that plea counsel were ineffective without first conducting an evidentiary hearing. To demonstrate ineffective assistance of counsel sufficient to invalidate a judgment of conviction based on a guilty plea, a petitioner must show counsel's performance was deficient in that it fell below an objective standard of reasonableness and prejudice resulted in that, but for counsel's errors, there is a reasonable probability petitioner would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Kirksey v. State, 112 Nev. 980, 987-88, 923 P.2d 1102, 1107 (1996). Both components of the inquiry must be shown, Strickland v. Washington, 466 U.S. 668, 687 (1984), and the petitioner must demonstrate the underlying facts by a preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We give deference to the district 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). To warrant an evidentiary hearing, a petitioner must raise claims supported by specific factual allegations that are not belied by the record and, if true, would entitle the petitioner to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).

First, Powell argued counsel were ineffective for failing to challenge the complaint as fatally flawed.¹ He claimed counsel should have argued he could not be charged with both robbery and kidnapping because the kidnapping was incidental to the robbery. Powell contended that, had counsel made this challenge and been successful, he would not have pleaded guilty and would have gone to trial.

[W]here the movement or restraint serves to substantially increase the risk of harm to the victim over and above that necessarily present in an associated offense ․ or where the seizure, restraint or movement of the victim substantially exceeds that required to complete the associated crime charged, dual convictions under the kidnapping and robbery statutes are proper.

Mendoza v. State, 122 Nev. 267, 274-75, 130 P.3d 176, 180 (2006). “[W]hether the movement of the victims was incidental to [an] associated offense ․ [is a] question[ ] of fact to be determined by the trier of fact in all but the clearest cases.” Sheriff, Clark Cty. v. Medberry, 96 Nev. 202, 204, 606 P.2d 181, 182 (1980); see also Langford v. State, 95 Nev. 631, 638-39, 600 P.2d 231, 236-37 (1979); Pascua v. State, 122 Nev. 1001, 1005 n.6, 145 P.3d 1031, 1033 n.6 (2006).

Powell failed to show that this was a clear case where the movement of the victims was incidental to the robbery counts. Thus, he failed to show that a pretrial challenge to the kidnapping counts would have been successful. Therefore, we conclude Powell failed to demonstrate counsel's performance was deficient or a reasonable probability of a different outcome had counsel made such a pretrial challenge. Accordingly, we conclude the district court did not err by denying this claim without first conducting an evidentiary hearing.

Second, Powell argued counsel both had a conflict of interest because one counsel had a death in the family during the pendency of the proceedings and the other counsel had a substance abuse problem as shown by disciplinary proceedings over a year after Powell pleaded guilty. “Conflict of interest and divided loyalty situations can take many forms, and whether an actual conflict exists must be evaluated on the specific facts of each case. In general, a conflict exists when an attorney is placed in a situation conducive to divided loyalties.” Clark v. State, 108 Nev. 324, 326, 831 P.2d 1374, 1376 (1992) (quotation marks omitted). Prejudice is presumed only if “counsel actively represented conflicting interests” and the “conflict of interest adversely affected [the defendant's] lawyer's performance.” Strickland, 466 U.S. at 692 (internal quotation marks omitted). Powell failed to allege specific facts that demonstrated either counsel actively represented conflicting interests and that the alleged conflict adversely affected his counsels’ performances. Therefore, we conclude the district court did not err by denying this claim without first conducting an evidentiary hearing.

Third, Powell argued counsel were ineffective for failing to investigate his alibi and his alibi witnesses, misrepresenting the terms of the plea agreement, and failing to ask the State to provide discovery on the criminal case that the State alleged it was going to initiate after Powell went to trial on the instant case. In his presentence motion to withdraw guilty plea, Powell argued he had a fair and just reason to withdraw his plea because counsel were ineffective. These claims were fully litigated during the presentence motion to withdraw guilty plea proceedings, and the district court denied them after holding an evidentiary hearing. The ineffective assistance of counsel claims raised in the instant claim are the same claims that were raised in Powell's presentence motion to withdraw guilty plea. Thus, the claims could have been raised on direct appeal. Powell waived these claims by failing to raise them on direct appeal from his reinstated judgment of conviction.² See Franklin v. State, 110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994) (holding claims that could have been raised on direct appeal are waived in a postconviction petition for a writ of habeas corpus challenging a judgment of conviction based on a guilty plea), overruled on other grounds by Thomas v. State, 115 Nev. 148, 150, 979 P.2d 222, 223-24 (1999). Therefore, we conclude the district court did not err by denying this claim without first conducting an evidentiary hearing.

Next, Powell claimed appellate counsel was ineffective. To demonstrate ineffective assistance of appellate counsel, a petitioner must show that counsel's performance was deficient in that it fell below an objective standard of reasonableness and prejudice resulted in that the omitted issue would have a reasonable probability of success on appeal. Kirksey, 112 Nev. at 998, 923 P.2d at 1114.

First, Powell claimed first appeal counsel was ineffective for failing to raise claims other than claims challenging the denial of the presentence motion to withdraw guilty plea.³ Powell failed to allege what other claims first appeal counsel should have raised on direct appeal; therefore, he failed to demonstrate counsel's performance was deficient or resulting prejudice. Thus, we conclude the district court did not err by denying this claim without first conducting an evidentiary hearing.

Second, Powell claimed that appellate counsel was ineffective for failing to advise Powell regarding his postconviction remedies.⁴ Powell failed to demonstrate counsel's performance was deficient because he failed to show counsel had a duty to advise Powell about his postconviction remedies. Cf. Sullivan v. State, 120 Nev. 537, 542, 96 P.3d 761, 765 (2004) (holding trial counsel's failure to inform a petitioner of the timing for the filing of a postconviction petition did not constitute good cause to overcome the procedural time bar). Further, Powell ultimately filed the instant, timely postconviction habeas petition. Therefore, he failed to demonstrate a reasonable probability of a different outcome had appellate counsel advised him. Thus, we conclude the district court did not err by denying this claim without first conducting an evidentiary hearing.

Finally, Powell alleged the cumulative errors of counsel entitled him to relief. Even assuming the errors of counsel can be cumulated, see McConnell v. State, 125 Nev. 243, 259 n.17, 212 P.3d 307, 318 n.17 (2009), Powell failed to demonstrate multiple errors to cumulate, see Burnside v. State, 131 Nev. 371, 407, 352 P.3d 627, 651 (2015) (noting cumulative error claims require “multiple errors to cumulate”). Therefore, we conclude the district court did not err by denying this claim without first conducting an evidentiary hearing. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   Powell also claimed counsel should have filed other, unspecified pretrial motions. Because Powell failed to support this claim with specific facts not belied by the record that, if true, would entitle him to relief, we conclude the district court did not err by denying this claim without first conducting an evidentiary hearing.

2.   We note Powell voluntarily withdrew the appeal from his reinstated judgment of conviction. See Powell v. State, No. 88414, 2024 WL 3947596 (Nev. Aug. 26, 2024) (Order Dismissing Appeal).

3.   Powell filed an appeal from his original judgment of conviction in which first appeal counsel claimed the district court erred by denying the presentence motion to withdraw guilty plea without first conducting an evidentiary hearing. First appeal counsel was successful, and the judgment of conviction was reversed and remanded. See Powell v. State, No. 79037-COA, 2020 WL 2449207 (Nev. Ct. App. May 11, 2020) (Order of Reversal and Remand).

4.   Powell also appeared to claim that counsel was ineffective for failing to file a notice of appeal after Powell's presentence motion to withdraw guilty plea was denied after this court's reversal and remand on direct appeal from his judgment of conviction. See Powell, No. 79037-COA, 2020 WL 2449207. Powell failed to demonstrate counsel was ineffective as at the time Powell alleged counsel should have filed the notice of appeal, the judgment of conviction had not been reinstated. See Powell v. State, No. 85955-COA, 2024 WL 487920 (Nev. Ct. App. Feb. 7, 2024) (Order Vacating and Remanding). Further, Powell ultimately filed a notice of appeal when the reinstated judgment of conviction was entered, which was voluntarily withdrawn. See Powell, No. 88414, 2024 WL 3947596.