ALBARADO v. STATE (2021)

ORDER OF AFFIRMANCE

Albarado contends the district court erred by denying, without conducting an evidentiary hearing, his claim that counsel was ineffective at his probation revocation hearing. To demonstrate ineffective assistance of counsel, a petitioner must show counsel's performance was deficient in that it fell below an objective standard of reasonableness and prejudice resulted in that there was a reasonable probability of a different outcome absent counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland). Both components of the inquiry must be shown. Strickland, 466 U.S. at 687. 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 him to relief. Hargrove v. State, 100 Nev. 498. 502-03, 686 P.2d 222, 225 (1984).

Albarado claimed counsel was ineffective for stipulating to the revocation of Albarado's probation without his consent. Albarado's bare claim failed to allege a reasonable probability of a different outcome had counsel not made the stipulation. We therefore conclude the district court did not err by denying this claim without conducting an evidentiary hearing, and we

ORDER the judgment of the district court AFFIRMED.¹

FOOTNOTES

1.   To the extent Albarado claimed he did not need to demonstrate prejudice, his claim lacked merit. Prejudice under Strickland is presumed in limited circumstances, see United States v. Cronic, 466 U.S. 648, 659-60, 661 n.28 (1984), that are not presented in this case.