Assistance of Counsel Issue {42} Defendant argues that his counsel was ineffective for failing to obtain bank records and for failing to locate and call witnesses for the defense. The record and briefs do not indicate that counsel failed to act in any manner that creates a prima facie case for ineffective assistance of counsel. See State v. Dylan J., 2009-NMCA-027, ¶ 37, 145 N.M. 719, 204 P.3d 44 (“We indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (internal quotation marks and citation omitted)); State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (<HOLDING>). B. The Issue of Error in Failing to Grant a
recognizing that there is a preference for habeas corpus proceedings over remand when the record on appeal does not establish a prima facie case of ineffective assistance of counsel holding on appeal from a habeas corpus denial that counsel was not ineffective for failure to file a notice of appeal because of defendants escape holding that claims of ineffective assistance of counsel could not be resolved on the facts appearing in the record and that under such circumstances the defendants remedy is to file a petition for habeas corpus holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record holding that a claim of ineffective assistance of counsel could not be resolved by the facts in the record and must be pursued in an action for habeas corpus