Silva v. State, 031920 NVCA, 77691-COA

Docket Nº:77691-COA
Opinion Judge:Gibbons, C.J.
Party Name:GARY A. SILVA, Appellant, v. THE STATE OF NEVADA, Respondent.
Judge Panel:Tao, J., Bulla, J. Hon. Michelle Leavitt, District Judge
Case Date:March 19, 2020
Court:Court of Appeals of Nevada

GARY A. SILVA, Appellant,



No. 77691-COA

Court of Appeals of Nevada

March 19, 2020



Gibbons, C.J.

Gary A. Silva appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on July 27, 2018, and supplemental petition filed on September 18, 2018. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.

Silva was convicted, pursuant to a guilty plea, of aggravated stalking. He was placed on probation but was convicted of misdemeanor stalking of a different victim, and the State moved to revoke his probation. The district court revoked his probation and imposed the underlying prison sentence of 6 to 15 years. Silva had retained counsel to represent him in the revocation proceedings, and he asked counsel to file an appeal. Counsel declined to do so. Silva filed the instant postconviction habeas petition in which his sole claim is that counsel was ineffective for failing to appeal Silva's probation revocation. In its response, the State agreed an evidentiary hearing was warranted on this claim. At the date set for oral argument, the district court instead asked the parties to brief an issue both sides had neglected: whether Silva was entitled to the effective assistance of counsel in the revocation proceedings. The district court set a briefing schedule and new hearing date. Rather than conduct the hearing or entertain oral argument, the district court issued a minute order denying Silva's petition.

Silva contends the district court violated his due process right to be heard when it denied his petition without first entertaining oral argument. He asserts he was prejudiced by the denial of a hearing because he intended to raise additional argument at the hearing. Silva's contention that a hearing was necessary to raise additional argument fails. Silva had an adequate opportunity to raise his arguments in the supplemental briefing. Only rarely will a district court consider new argument raised during a hearing. Cf. Barnhart v. State, 122 Nev. 301, 304, 130 P.3d 650, 652 (2006). Moreover, the district court...

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