Alvarez-Francisco
v.
State

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of Nevada.Nov 15, 2012
381 P.3d 589 (Nev. 2012)

No. 60253.

11-15-2012

Javier ALVAREZ–FRANCISCO, Appellant, v. The STATE of Nevada, Respondent.

Xavier Gonzales Attorney General/Carson City Clark County District Attorney


Xavier Gonzales

Attorney General/Carson City

Clark County District Attorney

ORDER OF AFFIRMANCE

This is an appeal from a district court order denying appellant Javier Alvarez–Francisco's post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.

Citing to Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473 (2010), for support, Alvarez–Francisco contends that the district court erred by denying his petition because counsel was ineffective for failing to advise him about the immigration consequences of his guilty plea to grand larceny auto. Alvarez–Francisco also claims that (1) he had a viable defense and, but for counsel's failure, he would have insisted on going to trial; and (2) his petition was timely because “a Petition for Post Conviction Relief that addresses a Motion to Withdraw a Plea of Guilty ... is subject only to the doctrine of laches” and not “the time constraints in NRS 34.726(1).” We conclude that Alvarez–Francisco is not entitled to relief.

Alvarez–Francisco does not claim, and there is no indication in the record, that he filed a motion to withdraw his guilty plea in the district court.


“[A] district court may not issue a writ of habeas corpus if the post-conviction petitioner filed the petition challenging the validity of a conviction after having completed the sentence for the challenged conviction.” Jackson v. State, 115 Nev. 21, 23, 973 P.2d 241, 242 (1999) ; see also Nev. Const. art. 6, § 6 (1); NRS 34.360 ; NRS 34.724(1). Here, an order honorably discharging Alvarez–Francisco from probation was filed in the district court on June 2, 2010. According to the district court docket entries, Alvarez–Francisco filed his habeas petition on November 4, 2011, seventeen months after the expiration of his probationary term. As a result, the district court did not have jurisdiction to consider Alvarez–Francisco's petition. Therefore, we conclude that the district court did not err by denying Alvarez–Francisco's petition. Accordingly, we

Alvarez–Francisco failed to provide us with any of the pleadings filed below, including, most importantly, his habeas petition. See Thomas v. State, 120 Nev. 37, 43 & n. 4, 83 P.3d 818, 822 & n. 4 (2004) (“Appellant has the ultimate responsibility to provide this court with ‘portions of the record essential to determination of issues raised in appellant's appeal.’ “ (quoting NRAP 30(b)(3) )).


ORDER the judgment of the district court AFFIRMED.

Although we filed the appendix submitted by Alvarez–Francisco, it fails to comply with the Nevada Rules of Appellate Procedure. The appendix is not paginated sequentially and does not include an alphabetical index. See NRAP 3C(e)(2)(C) ; NRAP 30(c). Counsel for Alvarez–Francisco, Xavier Gonzales, is cautioned that the failure to comply with the appendix requirements in the future may result in the documents being returned to be correctly prepared and in the imposition of sanctions, NRAP 3C(n).