Duarte-Herrera (Porfirio) v. State

Nevada Supreme Court

Duarte-Herrera (Porfirio) v. State

DecidedJuly 31, 2015

Docket65342

StatusUnpublished

This text of Duarte-Herrera (Porfirio) v. State (Duarte-Herrera (Porfirio) v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Duarte-Herrera (Porfirio) v. State, (Neb. 2015).

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Opinion

on this claim. We disagree. Although appellant asserts that law enforcement threatened to deport his family unless he confessed, he does not assert that he told counsel about the threats and therefore did not allege sufficient facts to entitle him to relief or an evidentiary hearing. See Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984). Moreover, appellant does not explain how suppressing his statements would have changed the outcome at trial. We conclude that no relief is warranted on this claim. Second, appellant contends that the district court erred by denying his claim that appellate counsel was ineffective for failing to challenge the denial of his motion for severance. Appellant also contends that the district court should have held an evidentiary hearing on this claim. We disagree. Appellant does not point to the portion of the record where his codefendant's statements were admitted without being subject to cross-examination, where he was prevented from presenting evidence that would have been admissible in a separate trial, or where a specific trial right was violated. See Chartier v. State, 124 Nev. 760, 765, 191 P.3d 1182, 1185 (2008). Appellant also fails to demonstrate that any prejudice resulted from the joint trial. See id. We conclude that no relief is warranted on this claim. Third, appellant contends that the district court erred by denying his claim that he is actually innocent without conducting an evidentiary hearing. We disagree. Assuming that a free-standing claim of actual innocence is cognizable in a post-conviction petition for a writ of habeas corpus, the affidavit in question failed to demonstrate appellant's actual innocence. See Schlup v. Delo, 513 U.S. 298, 329 (1995); Herrera v.

SUPREME COURT OF NEVADA 2 (0) 1947A e Collins, 506 U.S. 390, 417 (1993). We therefore conclude that no relief is warranted on this claim. Having considered appellant's contentions and concluded that no relief is warranted, we ORDER the judgment of the district court AFFIRMED.

Saitta

La Pideu(ty Ali %/ , J• Pickering

cc: Hon. Michael Villani, District Judge Law Offices of Gamage & Gamage Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 (0)1947A ea

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on this claim. We disagree. Although appellant asserts that law enforcement threatened to deport his family unless he confessed, he does not assert that he told counsel about the threats and therefore did not allege sufficient facts to entitle him to relief or an evidentiary hearing. See Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984). Moreover, appellant does not explain how suppressing his statements would have changed the outcome at trial. We conclude that no relief is warranted on this claim. Second, appellant contends that the district court erred by denying his claim that appellate counsel was ineffective for failing to challenge the denial of his motion for severance. Appellant also contends that the district court should have held an evidentiary hearing on this claim. We disagree. Appellant does not point to the portion of the record where his codefendant's statements were admitted without being subject to cross-examination, where he was prevented from presenting evidence that would have been admissible in a separate trial, or where a specific trial right was violated. See Chartier v. State, 124 Nev. 760, 765, 191 P.3d 1182, 1185 (2008). Appellant also fails to demonstrate that any prejudice resulted from the joint trial. See id. We conclude that no relief is warranted on this claim. Third, appellant contends that the district court erred by denying his claim that he is actually innocent without conducting an evidentiary hearing. We disagree. Assuming that a free-standing claim of actual innocence is cognizable in a post-conviction petition for a writ of habeas corpus, the affidavit in question failed to demonstrate appellant's actual innocence. See Schlup v. Delo, 513 U.S. 298, 329 (1995); Herrera v.