JACORBIN CROSS BURTON v. NDOC WARDEN BRITTIANBOCK (2025)

ORDER OF AFFIRMANCE

Jacorbin Cross-Burton appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on October 9, 2024. Eighth Judicial District Court, Clark County; Jacqueline M. Bluth, Judge.

In his petition, Cross-Burton alleged trial counsel was ineffective for promising he would be released pending sentencing. This claim was raised in Cross-Burton's presentence motion to withdraw his guilty plea. As such, it could have been raised on direct appeal from his judgment of conviction. Therefore, this claim was waived, see Franklin v. State, 110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994) (holding that a petitioner forfeits postconviction claims that could have been pursued on direct appeal), overruled on other grounds by Thomas v. State, 115 Nev. 148, 150, 979 P.2d 222, 223-24 (1999), and we conclude the district court did not err by denying this claim.

Cross-Burton also alleged trial counsel was ineffective for failing to develop any “psychosocial” defenses or mitigation prior to recommending a plea bargain. This claim was also raised in Cross-Burton's presentence motion to withdraw his guilty plea, and the denial of that claim was affirmed on direct appeal. See Cross-Burton v. State, No. 86940-COA, 2024 WL 3963799 (Nev. Ct. App. Aug. 27, 2024) (Order of Affirmance). Thus, this claim was barred by the doctrine of law of the case. See Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). Therefore, we conclude the district court did not err by denying this claim.

Cross-Burton also filed a motion for the appointment of counsel and the district court denied that motion. The appointment of counsel in this matter was discretionary. See NRS 34.750(1). When deciding whether to appoint counsel, the district court may consider factors, including whether the issues presented are difficult, whether the petitioner is unable to comprehend the proceedings, or whether counsel is necessary to proceed with discovery. Id.; Renteria-Novoa v. State, 133 Nev. 75, 76, 391 P.3d 760, 761 (2017). Because Cross-Burton filed leave to proceed in forma pauperis and demonstrated he should be allowed to proceed in forma pauperis and his petition was a first petition not subject to summary dismissal, see NRS 34.745(1), (4), Cross-Burton met the threshold requirements for the appointment of counsel. See NRS 34.750(1); Renteria-Novoa, 133 Nev. at 76, 391 P.3d at 760-61. However, the district court found that the issues in this matter were not difficult, Cross-Burton was able to comprehend the proceedings, and discovery with the aid of counsel was not necessary. For these reasons, the district court denied the motion to appoint counsel. The record supports the decision of the district court, and we conclude the district court did not abuse its discretion by denying the motion for the appointment of counsel. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.