allow certain jury instructions and verdict options; the validity of his
waiver of rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966); and
the constitutionality of his sentence as disproportionate to his crime. The
first two claims were raised on direct appeal and rejected on their merits
and are therefore barred by the doctrine of the law of the case. Hall v.
State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975) (stating that the holding
on direct appeal is the law of the case on all subsequent appeals). The
other two claims could have been raised on direct appeal and were
therefore procedurally barred absent a demonstration of good cause and
actual prejudice. NRS 34.810(1)(b). Appellant made no cogent argument
of good cause or actual prejudice. We therefore conclude that the district
court did not err in denying these claims.
Appellant next claimed that he received ineffective assistance
of trial counsel. To prove ineffective assistance of counsel, a petitioner
must demonstrate that counsel's performance was deficient in that it fell
below an objective standard of reasonableness, and resulting prejudice
such that there is a reasonable probability that, but for counsel's errors,
the outcome of the proceedings would have been different. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430,
432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland). Both
components of the inquiry 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). We give deference to the district court's factual
findings regarding ineffective assistance of counsel 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).
2
First, appellant claimed that counsel was ineffective for
making a flawed double-jeopardy argument, which was the result of
improper investigation. Appellant failed to demonstrate deficiency or
prejudice. Appellant did not state what the results of a more thorough
investigation would have been. Molina v. State, 120 Nev. 185, 192, 87
P.3d 533, 538 (2004). Further, the law of the case is that appellant's
convictions for both trespass and burglary arising from the same event do
not violate the Double Jeopardy Clauses of the United States and Nevada
constitutions. Manning v. State, Docket No. 56797 (Order of Affirmance,
September 14, 2011); Hall, 91 Nev. at 316, 535 P.2d at 799; see also Smith
v. State, 120 Nev. 944, 946, 102 P.3d 569, 571 (2004). We therefore
conclude that the district court did not err in denying this claim.
Second, appellant claimed that counsel was ineffective for
failing to investigate the discovery, resulting in an improper charge of
burglary where he only intended to commit petit larceny. Appellant failed
to demonstrate deficiency or prejudice. In his petition, appellant admitted
that he did what he has done "countless times": find a discarded receipt
and "reenter the retailer with the objective of 'pretending' to return
whatever items appeared on that receipt for a cash refund." Appellant's
admission that he entered the store with the intent to commit petit
larceny and/or obtain money by false pretenses satisfied the elements for
burglary. See NRS 205.060(1); Manning v. State, Docket No. 56797
(Order of Affirmance, September 14, 2011) (holding that sufficient
evidence supported appellant's conviction for burglary). We therefore
conclude that the district court did not err in denying this claim.
Finally, appellant claimed that he received ineffective
assistance from appellate counsel, who failed to include an adequate
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appendix for this court's review on direct appeal. Specifically, counsel
failed to provide this court with the charging document that led to
appellant's conviction in municipal court for trespass in violation of NRS
207.200, a conviction that preceded his burglary prosecution. We conclude
that the district court erred in denying this claim without an evidentiary
hearing.
Appellant pleaded sufficient facts that, if true, would have
entitled him to relief, and thus to an evidentiary hearing on this claim.
See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).
Counsel's failure to include the document precluded this court from
reaching the merits of appellant's redundancy argument. Manning v.
State, Docket No. 56797 (Order of Affirmance, September 14, 2011).
Further, it appears that appellant's dual convictions for trespass and
burglary may have violated Nevada's prohibition against cumulative
punishments under an "alternative-offense 'redundancy" theory. Jackson
v. State, 128 Nev. „ 291 P.3d 1274, 1283 (2012), petition for cert.
filed 81 U.S.L.W. (U.S. Mar. 5, 2013) (No. 12-9118); compare NRS
207.200 (defining trespass in part as "under circumstances not amounting
to a burglary"), with NRS 201.230, and Braunstein v. State, 118 Nev. 68,
78-79, 40 P.3d 413, 420-21 (2002); see also Kirksey v. State, 112 Nev. 980,
998, 923 P.2d 1102, 1114 (1996) (applying the Strickland test to claims
regarding ineffective appellate counsel). In addition to conducting an
evidentiary hearing, because of the complex legal issues involved, the
district court should appoint post-conviction counsel to assist the
petitioner. NRS 34.750(1).
4
Docket No. 61647
Appellant filed a second notice of appeal from the same order
that was the subject of Docket No. 60883. The clerk of this court
inadvertently docketed an appeal in Docket No. 61647 as a separate
matter when appellant filed the second, duplicative notice of appeal.
Accordingly, we direct the clerk of this court to administratively close the
instant appeal.
For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND to the district court for
proceedings consistent with this order in Docket No. 60883 and
ADMINISTRATIVELY CLOSE THE APPEAL in Docket No. 61647.
Hardesty
J.
Parraguirre
cc: Hon. Jessie Elizabeth Walsh, District Judge
Juan Deleon Manning
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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