GUTIERREZ v. WARDEN (2021)

ORDER OF AFFIRMANCE

Gutierrez argues the district court erred by denying his claims of ineffective assistance of counsel raised in his August 3, 2020, petition. 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). To demonstrate prejudice regarding the decision to enter a guilty plea, a petitioner must show a reasonable probability that, but for counsel's errors, 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, 988, 923 P.2d 1102, 1107 (1996). Both components of the inquiry—deficiency and prejudice—must be shown, Strickland, 466 U.S. at 687, 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).

First, Gutierrez claimed his counsel was ineffective for failing to pursue a direct appeal despite Gutierrez's request for an appeal. “[T]rial counsel has a constitutional duty to file a direct appeal in two circumstances: when requested to do so and when the defendant expresses dissatisfaction with his conviction.” Toston v. State, 127 Nev. 971, 978, 267 P.3d 795, 800 (2011).

The district court conducted an evidentiary hearing concerning this claim, and Gutierrez's counsel testified at that hearing. Counsel testified Gutierrez did not inform him of a desire to pursue a direct appeal. The district court found counsel's testimony to be credible. In addition, the district court concluded that Gutierrez failed to demonstrate he expressed to counsel that he was dissatisfied with his conviction. Following the evidentiary hearing, the district court concluded that counsel did not have a duty to file a notice of appeal, Gutierrez did not express the type of dissatisfaction which would warrant the filing of a notice of appeal, and Gutierrez was not improperly deprived of a direct appeal. Substantial evidence supports the district court's decision. Therefore, we conclude the district court did not err by denying this claim. See id. at 980, 267 P.3d at 801.

Second, Gutierrez claimed counsel was ineffective for failing to seek disqualification of the trial-level judge because the judge was biased against him. Gutierrez contended the trial-level judge was biased against him because the judge previously presided over his separate, unrelated juvenile court matters. However, the “rulings and actions of a judge during the course of official judicial proceedings do not establish” that a district court judge is biased against a party. In re Petition to Recall Dunleavy, 104 Nev. 784, 789-90, 769 P.2d 1271, 1275 (1988). Because the trial-level judge's prior assignment to Gutierrez's juvenile court matters was insufficient to establish that the judge was biased, Gutierrez did not demonstrate counsel's performance fell below an objective standard of reasonableness by failing to seek disqualification of that judge. In addition, Gutierrez did not demonstrate a reasonable probability of a different outcome had counsel moved to disqualify the trial-level judge. Therefore, we conclude the district court did not err by denying this claim.

Gutierrez also argues on appeal that the district court judge erred by declining to recuse himself from the postconviction proceedings, because that judge presided over his juvenile court matters. However, as discussed previously, the actions of a judge during official court proceedings are insufficient to establish that a judge was biased against a party. See id. Therefore, Gutierrez fails to demonstrate that the district court judge should have been disqualified from this matter.

Finally, Gutierrez argues on appeal that police officers violated his Miranda ¹ rights by persuading him to talk to them even though he asked for a lawyer. Gutierrez did not raise this claim in his petition, and we decline to consider it on appeal in the first instance. See McNelton v. State, 115 Nev. 396, 415-16, 990 P.2d 1263, 1275-76 (1999). Accordingly, we

ORDER the judgment of the district court AFFIRMED.

FOOTNOTES

1.   Miranda v. Arizona, 384 U.S. 436 (1966).