(stating that prejudice in appellate counsel context requires showing
omitted issue would have had reasonable probability of success on appeal);
Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting
the test in Strickland). Both deficiency and prejudice must be shown,
Strickland, 466 U.S. at 697, and the petitioner must demonstrate the
underlying facts by a preponderance of the evidence, Means v. State, 120
Nev. 1001, 1012, 103 P.3d 25, 33 (2004). Here, the district court held an
evidentiary hearing, and we give deference to the district court's factual
findings if they are supported by substantial evidence and not clearly
erroneous but review the court's application of the law to those facts de
novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).
First, Collins contends that counsel was ineffective for failing
to challenge in a pretrial motion or on appeal that no evidence
corroborated the accomplice testimony admitted at trial and therefore his
convictions cannot stand. Sheriff Kerry Lee testified that in April 2007,
his office conducted an investigation into narcotic trafficking and sales
involving Collins and Kevin Valerio. The investigation culminated in the
issuance of a warrant to search Valerio's home for methamphetamine-
related items, specifically a large metal toolbox and keys to unlock the
padlock Sheriff Lee was told secured the toolbox. The search of Valerio's
house yielded a large metal toolbox, which contained methamphetamine
and drug paraphernalia. A key that unlocked the padlock on the toolbox
was found during a search of Collins' house. Other than the key, the bulk
of the evidence against Collins rested with the testimony of Valerio and
Kenneth Bowen.
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The evidence necessary to corroborate accomplice testimony
need not, by itself, be sufficient to establish guilt. Ramirez-Garza v. State,
108 Nev. 376, 379, 832 P.2d 392, 393 (1992). "If the evidence, independent
of the accomplice testimony, tends to connect the accused with the
commission of the offense, then the corroboration requirement contained
in NRS 175.291 is satisfied." Id.; Heglemeier v. State, 111 Nev. 1244,
1251-52, 903 P.2d 799, 803-04 (1995); see also Austin v. State, 87 Nev. 578,
585, 491 P.2d 724, 728 (1971) (observing that in determining if sufficient
evidence corroborates accomplice's testimony, that testimony must be
eliminated and remaining evidence examined to ascertain if there is
inculpatory evidence tending to connect defendant to offense). The district
court concluded that the State produced sufficient independent
corroborative evidence by showing that Collins possessed the only key
located that could open the padlock securing the toolbox, which contained
approximately 21 grams of methamphetamine and his incriminating
statement to law enforcement that if any drugs were found in Valerio's
house, they did not belong to him. Considering Collins' arguments, the
trial testimony, and the district court's factual findings, we conclude that
the district court did not err by denying this claim. 2
2 Collins'
conviction for child neglect and endangerment was not
predicated on accomplice testimony, as Valerio and Bowen were not
accomplices in that offense. Therefore, the district court did not err by
denying his claim of ineffective assistance of counsel related to that
charge.
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Second, Collins argues that counsel was ineffective for not
challenging the voluntariness of his consent to a search of his house. The
district court concluded that the search was conducted pursuant to a
condition of Collins' probation and was consensual, see Seim v. State, 95
Nev. 89, 94, 590 P.2d 1152, 1155 (1979), and thus counsel was not
ineffective for failing to challenge the search at trial or on appeal. The
district court's finding is supported by substantial evidence, and we
conclude that it did not error by denying this claim.
Third, Collins argues that counsel was ineffective for not
challenging inadmissible prior bad act evidence. In responding to a direct
examination question regarding the length of the investigation of Collins'
crimes, Sheriff Lee responded that his office had "been watching Mr.
Collins for a number of years, and particularly in the last months we were
watching—." At the evidentiary hearing, counsel acknowledged that the
comment could imply prior misconduct, but he elected not to object to it to
avoid attracting the jury's attention to it. The district court found that
counsel made a strategic decision by not objecting and therefore Collins
failed to prove ineffective assistance, see Doleman v. State, 112 Nev. 843,
848, 921 P.2d 278, 280-81 (1996) (observing that counsel's strategic or
tactical decisions will be "virtually unchallengeable absent extraordinary
circumstances" (quoting Howard v. State, 106 Nev. 713, 722, 800 P.2d
175, 180 (1990))), abrogation on other grounds recognized in Harte v. State,
116 Nev. 1054, 1072 n.6, 13 P.3d 420, 432 n.6 (2000)), or, even assuming
counsel should have objected, he failed to show prejudice. The district
court further determined that counsel was not ineffective for not raising
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this claim on appeal. We conclude that the district court did not err in
this regard.
Fourth, Collins argues that counsel was ineffective for not
challenging comments by the prosecutor that disparaged counsel and
expressed the prosecutor's personal opinion as to his guilt. In particular,
during closing and rebuttal argument, the prosecutor compared counsel to
an illusionist and argued that counsel was disingenuous by "talk[ing]
about all the things [the prosecution doesn't] have." The district court
determined that while the comments were improper, see Rose v. State, 123
Nev. 194, 211, 163 P.3d 408, 419 (2007) (concluding that "referring to the
defense as 'smoke screens' is improper"); Emerson v. State, 98 Nev. 158,
164, 643 P.2d 1212, 1215 (1982) ("A prosecutor does not appropriately offer
his personal opinion as to the guilt or the character of the accused."), and
counsel should have objected, Collins failed to demonstrate prejudice at
trial and on appeal. We conclude that the district court did not err in this
regard.
Fifth, Collins argues that counsel was ineffective for failing to
file a number of pretrial motions, conduct reliable pretrial investigation,
and present a defense. These claims appear in Collins' proper person post-
conviction motion and are little more than bare and vague allegations of
ineffective assistance of counsel. Therefore, we conclude that the district
court did not err by denying them.
Sixth, Collins contends that cumulative error requires reversal
of his convictions. To the extent Collins argues that cumulative trial error
warrants relief, his claim is procedurally barred as it should have been
raised on appeal. NRS 34.810(1)(b)(2). To the extent he argues that the
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cumulative effect of counsel's deficiencies warrants relief, he demonstrated
deficient performance in one instance, and consequently there are no
deficiencies to cumulate. Therefore we conclude that the district court did
not err by denying this claim.
Having considered Collins' claims and concluded that no relief
is warranted, we
ORDER the judgment of the district court AFFIRMED. 3
,J.
cc: Hon. Gary Fairman, District Judge
Christopher R. Oram
Attorney General/Carson City
Lincoln County District Attorney
Lincoln County Clerk
3 Collinsargues that counsel was ineffective for not filing a petition
for rehearing of this court's order denying his direct appeal because this
court overlooked a jury instruction claim. In pleadings filed below, Collins
conceded that this court did not overlook the matter. Therefore, we
conclude that the district court did not err by denying this claim.
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