As stated in Turner v. Marshall, 63 F3d 807, (9^th Cir. 1995), a party is only entitled to a "full and fair evidentiary hearing" if the facts alleged entitle one to relief.

As Cited to in Hargrove v. State, 100 Nev. 498 the Guidelines this Court must look to in granting an evidentiary hearing are provided by statute, court rule, and case law. A hearing, whether evidentiary or non-evidentiary, should be granted unless the motion and the files and records of the case conclusively show the movant is entitled to no relief.

Courts have found that a presumption of regularity attaches to a judgement of criminal conviction and sentencing. Therefore, the movant has the burden of establishing any irregularity of his conviction and the movant has the burden of proof. Naked conclusory contentions without evidentiary basis are not sufficient for relief. The motion must set forth a factual background, and names of witnesses or other sources of evidence demonstrating movant’s entitlement to relief. An evidentiary hearing is not required if no substantial issue of fact is presented by such motion.

Where a motion for new trial alleges facts which do not appear in the original record and which if true would entitle movant to relief, and identifies readily available witnesses whose testimony would support such facts or other sources of evidence, it is error for this Court to deny the motion without an evidentiary hearing. Even where the factual issues raised seem improbable, an evidentiary hearing is required unless the files and records of the case enable their complete resolution.

The motion now before the Court is based primarily upon the grounds of alleged juror misconduct, newly discovered Massiah violations, and possible ineffective assistance of counsel. This court so finds the defendants to have demonstrated sufficient cause to raise such new claims.

This Court concludes that the defendant’s have established a prima facie showing of possible jury misconduct and will be granted an evidentiary hearing on such issues within the guidelines of this Court.

This Court also concludes that a prima facie showing of possible Massiah violations, as they relate to inmate David Gomez, has been sufficiently demonstrated and this Court will hold an evidentiary hearing on such issue. Such a hearing to be limited to only those witnesses who will bring forth information not previously known or used by this Court during the pre-trial Massiah Hearing.

This court also concludes that a prima facie showing of possible ineffective assistance of counsel has been shown. However, as both parties alluded to in their moving papers, this is an issue in which the Nevada Supreme Court in Gibbons v. State Nev. 520, (1981) and the Strickland case has concluded is not within the purview of the trial Court under NRS 176.515, Motion for New Trial. Despite such a ruling, this Court will allow a limited evidentiary hearing on this matter due to the issues of the trial being fresh, witnesses being available, and an evidentiary hearing on such issue would cause no harm nor prejudice to the State. Absent a compelling reason, based under statute on "other grounds", or as stated in the Clark case, this Court will not rule on the issue of ineffective assistance of counsel but will allow for preservation of the record for further appellate review.

The Court should consider the best interests of the jurors and balance those needs against the needs of the defendants.

*Judge should ask each side to suggest what issues should be raised and what the scope of the hearing should be.

*In the Judges desire to determine what occurred, the trial judge should allow only "actual, open-ended questions to find out essentially what happened" and not allow any leading questions.

*The Judge should ask counsel after each juror testifies if this juror is subject to recall or free to go about their business. Once excused, forever being free, from this process.

*Judge should have Defense counsel and State suggest the scope of the questions as well as instances of misconduct that should be raised. Thereafter, each of the jurors should be questioned about the instances of alleged misconduct.

**The Judge should also allow both sides to ask the jurors if there "were any other materials not in evidence that you considered?"

**Counsel should not be allowed the opportunity to "cross-examine" the jurors with leading questions. It should be noted that an evidentiary hearing is not a routine part of the adversarial process. The jurors are not witnesses called by either side. Thus it is improper for any party to contend that they have a right to cross-examination as if the witnesses were called by the State, or were hostile witnesses. The purpose of the hearing is to gather facts and determine if juror misconduct has occurred.

***The trial judge is within his discretion to not allow leading questions by either side in order to protect the fact-finding aspect of the hearing.

***The Defense should be given the first opportunity to question each of the jurors, and then be given an opportunity to question each of them again after the prosecution had asked questions.

** The hearing, as it relates to the jurors, is not called to allow defense counsel to discredit the jurors or attack their testimony, which is the most common use of cross-examination. Instead, the Court holds this hearing in order to gather facts regarding potential juror misconduct. This will provide all parties with a full and fair opportunity to determine the facts behind the allegations of juror misconduct.

The United States Supreme Court in Sumner v. Mata, 449 U.S. 539, (1981), noted that a section of the Federal Rules regarding a hearing "do not specify any procedural requirements that must be satisfied for there to be a ‘hearing on the merits of a factual issue,’ other than that the habeas applicant and the State being permitted to formally appear before the court. And be given an opportunity to be hard on their claims in order to receive plenary consideration. The Nevada Revised Statues are similar in respect to the rules for a hearing.