GERALD DEWAYNE WILLIAMS v. WILLIAM HUTCHINGS WARDEN (2023)

ORDER OF REVERSAL AND REMAND

Gerald Dewayne Williams appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on October 5, 2020, and later-filed supplement. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.

Williams argues that the district court erred by denying his claim that his appellate counsel was ineffective. When reviewing a claim of ineffective assistance of counsel, 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). An “order that finally disposes of a petition ․ must contain specific findings of fact and conclusions of law supporting the decision of the court.” NRS 34.830(1).

In his petition, Williams claimed that his appellate counsel was ineffective for improperly depriving him of a direct appeal. Williams claimed that counsel improperly filed a notice and verification form (form) in the Nevada Supreme Court indicating that counsel “explained [to] and informed” Williams regarding the withdrawal and that Williams voluntarily withdrew his direct appeal. The district court held an evidentiary hearing regarding this issue. The parties stipulated to the admission of the form. Williams testified that counsel did not have a discussion with him regarding the withdrawal of the direct appeal. Williams’ mother testified that counsel told her that the direct appeal was withdrawn because he had not been paid to work on the appeal. Neither party called counsel to testify.

Following the evidentiary hearing, the district court issued an order denying Williams’ petition, finding that the form was sworn and noting that Williams presented testimony that conflicted with the contents of the form. The district court's key evidentiary finding—that counsel filed a sworn form—was not supported by substantial evidence and was clearly erroneous: The form was not a sworn statement. See NRS 53.045 (providing when an unsworn declaration may be used); NRS 53.320 (defining a sworn declaration); NRS 53.330 (defining an unsworn declaration). In addition, the district court as the trier of fact had the responsibility to evaluate the credibility of the witnesses, see Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008), yet it made no credibility findings regarding the witnesses presented at the evidentiary hearing and relied on the unsworn statement.

Because the district court relied on a factual finding that was clearly erroneous, we reverse its decision, remand this matter to the district court, and direct the district court to issue an order containing specific findings of fact and conclusions of law supporting its decision as required by NRS 34.830(1).¹ Accordingly, we

ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.

Gibbons, C.J.

Bulla, J.

Westbrook, J.

FOOTNOTES

1.   Prior to issuing an order, the district court may choose to reopen the evidentiary proceedings and permit the parties to present additional evidence in support of their respective positions.