Justia Federal District Court Opinions

Appellant seeks habeas corpus, attacking his conviction of grand larceny in a Nevada state court and his sentence as an habitual criminal under Nevada Rev. Stat. 207.010.1 He was charged, in an amended information, with five prior convictions.

He claims that the statute violates Article I, § 3 of the Nevada Constitution, which guarantees the right to trial by jury, and also the Sixth and Fourteenth Amendments to the Constitution of the United States, particularly the Sixth Amendment guarantee of jury trial. The first contention, being purely a question of state law, is not open to him in federal habeas corpus.²

The second contention is insufficient. It is settled, in Nevada and elsewhere, that the charge of prior convictions is not a statement of an additional offense, but only of matter affecting possible punishment.3 There is but one offense and one punishment.4 And the fact that the priors were found by the judge, not the jury, does not violate the United States Constitution.⁵

Appellant also asserts that his retained counsel failed to perfect an appeal from his conviction. Standing alone, this is not a ground for federal habeas corpus. He makes no showing whatever that any prejudicial errors occurred that would have called for a reversal of his conviction.⁶ There is nothing in the claim that the sentencing judge refused to allow an appeal from the conviction before appellant was sentenced. The right to appeal attached when appellant was sentenced. Nor is the court required to order a copy of appellant's trial transcript merely to enable appellant to "comb the record in the hope of discovering some flaw."⁷ Apart from the claim of deprivation of jury trial, a claim considered above, there is no allegation that any constitutional flaw exists. Other contentions, some raised for the first time on this appeal, are without merit.

Affirmed.