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).
First, appellant claimed that his trial counsel failed to file a
pretrial writ. Appellant failed to demonstrate that his trial counsel's
performance was deficient or that he was prejudiced. Counsel filed a
pretrial motion seeking dismissal of a charge. Appellant failed to
demonstrate a reasonable probability of a different outcome had counsel
filed additional pretrial writs. Therefore, the district court did not err in
denying this claim.
Second, appellant claimed that his trial counsel failed to
obtain police radio logs to ascertain the exact time various officers arrived
at the scene. Appellant failed to demonstrate that his trial counsel's
performance was deficient or that he was prejudiced. The officers testified
regarding the approximate time-frame in which they arrived at the crime
scene and appellant failed to demonstrate that it was unreasonable for
counsel to not discover the exact time certain officers arrived. Appellant
failed to demonstrate a reasonable probability of a different outcome at
trial had counsel sought logs or other information showing the exact time
officers arrived at the scene. Therefore, the district court did not err in
denying this claim.
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Third, appellant claimed that his trial counsel failed to obtain
exculpatory evidence. Appellant failed to demonstrate that his trial
counsel's performance was deficient or that he was prejudiced. Counsel
filed a motion requesting disclosure of evidence. The district court granted
appellant's request except for the use-of-force reports and disciplinary
reports for the officers involved in this matter, as the district court
reviewed the reports and concluded they were irrelevant to appellant's
case. 2 Appellant failed to demonstrate a reasonable probability of a
different outcome at trial had counsel made further attempts to obtain
evidence from the State. Therefore the district court did not err in
denying this claim. 3
2 Appellant also claimed that his appellate counsel should have
argued that the district court erred in denying his request for the use-of-
force and disciplinary reports for the officers involved in this incident.
"District courts are vested with considerable discretion in determining the
relevance and admissibility of evidence," Archanian v. State, 122 Nev.
1019, 1029, 145 P.3d 1008, 1016 (2006), and appellant failed to
demonstrate that the district court abused its discretion in concluding the
challenged reports were irrelevant. Therefore, appellant failed to
demonstrate his appellate counsel was ineffective for failing to raise the
underlying claim on appeal. See Kirksey v. State, 112 Nev. 980, 998, 923
P.2d 1102, 1114 (1996); Strickland, 466 U.S. at 697.
3 To the extent appellant asserted that counsel should have obtained
photographs from the State from inside the apartment, which could have
shown appellant's view from the apartment windows, counsel argued at
trial that the State did not collect such evidence. The State could not have
disclosed evidence it did not possess and appellant failed to demonstrate
that this was material evidence. See Daniels v. State, 114 Nev. 261, 267,
956 P.2d 111, 115 (1998). To the extent appellant claimed counsel should
have independently obtained photographs, appellant failed to demonstrate
continued on next page . . .
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Fourth, appellant claimed that his trial counsel should have
hired a crime scene analyst and an expert in bullet ricochets. Appellant
failed to demonstrate that his trial counsel's performance was deficient or
that he was prejudiced. The State's crime scene analyst testified
regarding the bullet evidence, including instances where the bullets hit a
surface and ricocheted. Appellant failed to demonstrate reasonable
counsel would have hired an independent expert for this type of evidence,
and appellant failed to demonstrate a reasonable probability of a different
outcome at trial had further testimony regarding this evidence been
presented. Therefore, the district court did not err in denying this claim.
Fifth, appellant claimed that his trial counsel should have
hired a psychologist to testify regarding appellant's suicidal actions or
present an insanity defense. Appellant failed to demonstrate that his trial
counsel's performance was deficient or that he was prejudiced. Testimony
regarding appellant's suicidal actions was presented during the trial and
counsel argued those actions demonstrated appellant lacked intent for the
charged crimes. In light of appellant's mother's testimony that appellant
made statements that he intended to harm others, appellant failed to
demonstrate a reasonable probability of a different outcome at trial had
further testimony of this nature been presented. Moreover, appellant did
not allege any specific facts that would indicate that he was in a
. . . continued
a reasonable probability of a different outcome at trial given the strength
of the evidence of his guilt.
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•
delusional state such that he could not know or understand the nature
and capacity of his act or could not appreciate the wrongfulness of his act.
See Finger v. State, 117 Nev. 548, 576, 27 P.3d 66, 84-85 (2001).
Accordingly, appellant failed to demonstrate a reasonable probability of a
different outcome at trial had counsel sought to present an insanity
defense. Therefore, the district court did not err in denying this claim.
Sixth, appellant claimed that his trial counsel failed to argue
that the State did not properly endorse expert witnesses pursuant to NRS
174.234(2) because information about the substance of their anticipated
testimony was not provided to the defense. Appellant failed to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced. The State's notice of expert witnesses stated that the
defense was provided the substance of the expected testimony and a copy
of the witnesses' reports. At trial, counsel questioned the experts
extensively on their findings. Given this information, appellant failed to
demonstrate reasonable counsel would have asserted the State failed to
properly provide notice to the defense regarding the expert witnesses.
Appellant failed to demonstrate a reasonable probability of a different
outcome at trial had counsel raised arguments related to the notice of
expert witnesses. Therefore, the district court did not err in denying this
claim.
Seventh, appellant claimed that his trial counsel failed to
interview possible witnesses to show that no shots were fired before the
police kicked the front door. Appellant failed to demonstrate that his trial
counsel's performance was deficient or that he was prejudiced. The
witnesses who testified at trial regarding the timing of the shots stated
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that they heard shots from inside appellant's apartment before the police
kicked the front door in an attempt to enter the residence. Appellant
failed to demonstrate that any other witness would have testified in a
different manner or that further investigation would have revealed
witnesses who could have testified in a different manner. See Molina v.
State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004). Therefore, the district
court did not err in denying this claim.
Eighth, appellant claimed that his trial counsel failed to argue
that admission of the SWAT report without the report's author actually
testifying violated his right to confrontation. Appellant failed to
demonstrate that his counsel's performance was deficient or that he was
prejudiced. The SWAT report was not admitted into evidence; the district
court merely reviewed the report outside of the presence of the jury and
concluded that the State had disclosed the pertinent information
contained in the report to the defense prior to trial. Appellant failed to
demonstrate a reasonable probability of a different outcome at trial had
counsel argued the district court's review of the report violated appellant's
right to confrontation. Therefore, the district court did not err in denying
this claim. 4
4Appellant also claimed that his appellate counsel was ineffective for
failing to argue admission of the SWAT report violated his right to
confrontation. As the report was not admitted into evidence, appellant
failed to demonstrate his appellate counsel was ineffective for failing to
raise the underlying claim on direct appeal. See Kirksev, 112 Nev. at 998,
923 P.2d at 1114; Strickland, 466 U.S. at 697.
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Ninth, appellant claimed that his trial counsel failed to
demonstrate that the jury pool did not contain the appropriate percentage
of minorities. Appellant failed to demonstrate that his trial counsel's
performance was deficient or that he was prejudiced. Trial counsel argued
during jury selection that minorities were underrepresented in the jury
pool. On direct appeal, this court noted that appellant failed to
demonstrate systematic exclusion of minorities from the jury pool. Dixon
v. State, Docket No. 53700 (Order of Affirmance, March 17, 2011).
Appellant provided no additional information to demonstrate systematic
exclusion of minorities and, therefore, failed to demonstrate a reasonable
probability of a different outcome at trial had counsel raised further
arguments regarding this issue. See Williams v. State, 121 Nev. 934, 940,
125 P.3d 627, 631 (2005). Therefore, the district court did not err in
denying this claim.
Tenth, appellant claimed that his trial counsel failed to object
to the reasonable doubt instruction. Appellant failed to demonstrate that
his trial counsel's performance was deficient or that he was prejudiced.
Counsel sought different language in the reasonable doubt instruction, but
the district court denied that request. Further, appellant failed to
demonstrate a reasonable probability of a different outcome had counsel
sought additional changes to the instruction as the statutorily-prescribed
reasonable doubt instruction was used at trial. NRS 175.211; see, e.g.,
Chambers v. State, 113 Nev. 974, 982-83, 944 P.2d 805, 810 (1997); Milton
v. State, 111 Nev. 1487, 1492, 908 P.2d 684, 687 (1995). Therefore, the
district court did not err in denying this claim.
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Eleventh, appellant claimed that his trial counsel failed to
argue and obtain evidence to demonstrate that the police did not follow
police procedures and policy during the incident. Appellant failed to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced. Counsel did argue that the police should have performed
different actions during the incident. Given the strength of the evidence
produced at trial, appellant failed to demonstrate a reasonable probability
of a different outcome had counsel made additional arguments of this
nature. Therefore, the district court did not err in denying this claim.
Twelfth, appellant claimed that his counsel failed to cross-
examine witnesses. Appellant failed to demonstrate that his trial
counsel's performance was deficient or that he was prejudiced. Counsel
cross-examined the majority of the State's witnesses and appellant failed
to demonstrate reasonable counsel would have questioned the few that
counsel did not. Appellant failed to demonstrate a reasonable probability
of a different outcome at trial had counsel questioned all of the State's
witnesses or posed additional questions to those witnesses. Therefore, the
district court did not err in denying this claim.
Thirteenth, appellant claimed that his trial counsel was
ineffective for failing to argue that the district court was biased because
the court denied appellant's motions. Appellant failed to demonstrate
deficiency or prejudice because adverse rulings "during the course of
official judicial proceedings do not establish legally cognizable grounds for
disqualification." In re Petition to Recall Dunleavy, 104 Nev. 784, 789-90,
769 P.2d 1271, 1275 (1988). Therefore, the district court did not err in
denying this claim.
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Fourteenth, appellant claimed that cumulative errors of
counsel amounted to ineffective assistance of counsel. Appellant failed to
demonstrate deficiency and/or prejudice for any of his claims and,
therefore, failed to demonstrate that any errors of counsel cumulatively
amounted to ineffective assistance of counsel. Therefore, the district court
did not err in denying this claim. 5
Having considered appellant's contentions and concluding
they are without merit, we
ORDER the judgment of the district court AFFIRMED. 6
/ ,J.
Hardesty
Parraguirre Cherry
5 Appellant also appeared to claim that trial counsel failed to conduct
pretrial investigation. Appellant failed to demonstrate deficiency or
prejudice. Appellant made only a bare claim and provided no information
for what counsel could have discovered had further investigation been
undertaken. See Molina, 120 Nev. at 192, 87 P.3d at 538. Therefore, the
district court did not err in denying this claim.
6We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
9
cc: Hon. Kathleen E. Delaney, District Judge
Terry Dewayne Dixon
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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