First, Orellana contended that trial counsel was ineffective for
failing to request an independent psychological evaluation of the victim.
Because Orellana failed to show that such an evaluation would have
resulted in a different outcome at trial, we conclude that the district court
did not err by denying this claim. Furthermore, Orellana was not entitled
to an evidentiary hearing on this claim because, even if he established the
deficiency of counsel, he failed to allege specific facts satisfying his burden
of proving resulting prejudice.' See Strickland v. Washington, 466 U.S.
668, 687-88 (1984) (explaining that petitioner must show both deficient
performance and resulting prejudice in order to obtain relief).
Second, Orellana contended that trial counsel was ineffective
for failing to object to the State's comments on Orellana's constitutional
right to remain silent and appellate counsel was ineffective for failing to
raise this issue on appeal. Our review of the record reveals that trial
counsel did object to both comments and thoroughly clarified the earlier
comment made by the State during voir dire. Therefore, we conclude that
trial counsel's performance was not deficient. We also conclude that
Orellana did not satisfy his burden of proving that appellate counsel's
failure to include one of the two comments in his appellate brief resulted
in prejudice. See Foster v. State, 121 Nev. 165, 170, 111 P.3d 1083, 1087
'We also note that Orellana failed to allege specific factual
allegations supporting his other claims of ineffective assistance of counsel
that would, if true, entitle him to relief. Therefore, Orellana was not
entitled to an evidentiary hearing on these claims.
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(2005) (explaining that the court need not consider both prongs of the
Strickland test if the petitioner makes an insufficient showing on either
prong). Accordingly, we conclude that the district court did not err by
denying this claim.
Third, Orellana contended that trial counsel was ineffective
for attempting to quantify the reasonable doubt instruction. We conclude
that counsel's comment did not lower the State's burden of proof and
Orellana has failed to satisfy his burden of proving resulting prejudice.
Accordingly, the district court did not err by denying this claim.
Fourth, Orellana contended that trial counsel was ineffective
for failing to make a Confrontation Clause objection to a detective's
reference to the out-of-court statement of the victim's parents that the
victim was scared to return home and appellate counsel was ineffective for
failing to raise this issue on appeal. Orellana also contended that
appellate counsel was ineffective for failing to raise the same claim with
respect to the victim's aunt's testimony about the victim's out-of-court
statements. The Confrontation Clause prohibits the admission of
testimonial statements of witnesses who are unavailable and not subject
to cross-examination. See Vega v. State, 126 Nev. „ 236 P.3d 632,
637 (2010); see also California v. Green, 399 U.S. 149, 161 (1970) ("[W]e
note that none of our decisions interpreting the Confrontation Clause
requires excluding the out-of-court statements of a witness who is
available and testifying at trial."). The victim's parents and the victim
herself all testified and were cross-examined by trial counsel. Accordingly,
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we conclude that trial and appellate counsel's performance was not
deficient in this regard and the district court did not err by denying this
claim.
Having considered Orellana's contentions and concluded that
he is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.
414_,A,
J.
Hardesty
arraguirre
cc: Hon. Michael Villani, District Judge
Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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