                plea-negotiations and trial strategy between Justice and District Courts"
                entitled Heiman to relief. We disagree. Heiman offered no evidence at the
                evidentiary hearing on his petition demonstrating that his guilty plea to
                misdemeanor domestic battery prevented him from presenting his theory
                of defense to burglary at trial—namely, that he did not form the intent to
                batter the victim until he entered her motel room. See Means v. State, 120
                Nev. 1001, 1012, 103 P.3d 25, 33 (2004) (holding that a petitioner must
                demonstrate the underlying facts by a preponderance of the evidence). In
                fact, trial counsel articulated this theory of defense during closing
                arguments when he claimed that Heiman did not possess the requisite
                intent to support the burglary count. Therefore, we conclude that counsel
                was not deficient and Heiman failed to demonstrate prejudice,              see
                Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Kirksey v.
                State, 112 Nev. 980, 987, 923 P.2d 1102, 1107 (1996), and substantial
                evidence does not support the district court's determination that Heiman
                was entitled to relief on this basis.
                             Relatedly, Heiman also claimed below that his guilty plea to
                misdemeanor domestic battery in the justice court prevented trial counsel
                in the district court from "presenting to the jury the jury instruction on
                the lesser related offense of battery" and exposed him to consecutive
                sentences. The district court did not specifically address these ineffective-
                assistance claims in its order and it is not clear whether the district court
                granted relief on these grounds. To the extent the district court granted
                relief based on these claims, we conclude the district court erred because
                Heiman failed to demonstrate that counsel's performance was deficient in
                the manner alleged or that he was prejudiced in any way entitling him to
                relief. See Strickland, 466 U.S. at 687-88, 94.

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                                Second, the State contends that the district court erred by
                    finding that trial counsel was ineffective for failing to request a lesser-
                    included jury instruction on misdemeanor stalking. Even assuming that
                    counsel's performance was deficient in this regard, the State presented
                    overwhelming evidence of Heiman's guilt on the charge of aggravated
                    stalking. See NRS 200.575(1)-(2). Therefore, we conclude that the district
                    court erred by determining that Heiman was prejudiced by counsel's
                    failure to request a jury instruction on misdemeanor stalking.          See
                    Strickland, 466 U.S. at 694. Accordingly, we
                                ORDER the judgment of the district court REVERSED IN
                    PART AND REMAND this matter to the district court for proceedings
                    consistent with this order.'




                                                      Douglas


                                                                                      J.
                                                      Saitta




                          'The fast track statement, response, and reply do not comply with
                    NRAP 3C(h)(1) and NRAP 32(a)(4) because the text is not double-spaced.
                    Counsel for the parties are cautioned that the failure to comply with the
                    briefing requirements in the future may result in the imposition of
                    sanctions. See NRAP 3C(n).


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                cc: Hon. Janet J. Berry, District Judge
                     Attorney General/Carson City
                     Washoe County District Attorney
                     Karla K. Butko
                     Washoe District Court Clerk




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