facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166
(2005).
First, appellant argues that his trial counsel was ineffective
for failing to correct errors regarding missing portions of the trial and
sentencing transcript. Appellant fails to demonstrate that his trial
counsel's performance was deficient or that he was prejudiced. Counsel
testified at the evidentiary hearing that he reviewed the transcript and
noted that the transcript of the sentencing hearing did not contain a
statement made by the district court during the sentencing hearing.
Counsel stated that the trial judge made a comment that he was unsure
that the sentence he imposed was constitutional. Counsel noted that this
court concluded on direct appeal that the sentence was not appropriate
and the error had since been corrected. See Lyons v. State, Docket No.
42423 (Order Affirming in Part, Reversing in Part and Remanding, March
23, 2006). Counsel testified that the remainder of the transcript
accurately reflected the trial proceedings. Appellant fails to demonstrate
a reasonable probability of a different outcome had counsel taken
additional actions regarding the transcript. Substantial evidence supports
the district court's decision to deny this claim and appellant fails to
demonstrate that the district court erred.
Second, appellant argues that counsel was ineffective for
failing to seek to have the conviction overturned based upon the two
victims' failure to identify appellant at trial and that the failure to identify
appellant as the perpetrator of the crime violated the corpus delicti rule.
Appellant fails to demonstrate that his trial counsel's performance was
deficient or that he was prejudiced. At trial, the two victims each stated
appellant's name when discussing the person who sexually assaulted
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them. At the evidentiary hearing, counsel testified that he believed the
victims each sufficiently identified appellant at the trial as the person who
committed the crimes, and therefore, did not feel it would have been
appropriate to seek dismissal of any of the charges based upon lack of
identification. Tactical decisions such as this one "are virtually
unchallengeable absent extraordinary circumstances," Ford v State, 105
Nev. 850, 853, 784 P.2d 951, 953 (1989), which appellant did not
demonstrate. In addition, the corpus delicti of a crime is established by
any independent evidence sufficient for a reasonable inference that the
crime was committed, and the victims' testimony regarding the nature of
the inappropriate sexual contact was sufficient in this matter. See Doyle
v. State, 112 Nev. 879, 892, 921 P.2d 901, 910 (1996), overruled on other
grounds by Kaczmarek v. State, 120 Nev. 314, 333, 91 P.3d 16, 29 (2004).
Appellant fails to demonstrate a reasonable probability of a different
outcome at trial had counsel raised arguments related to insufficient
evidence of the identification of appellant or regarding the corpus delicti
rule. Therefore, the district court did not err in denying this claim.'
Next, appellant argues that the district court erred in
concluding the following claims were procedurally barred: (1) the trial
'In his reply brief, appellant also argues that his trial counsel was
ineffective for failing to obtain evidence from the State, for failing to seek a
psychological evaluation of the victims, and for failing to move for a
mistrial after a witness testified that appellant was guilty. However,
appellant did not raise these issues in his opening brief, and because a
reply brief is limited to countering any matter set forth in the answering
brief, we decline to consider these claims. See NRAP 28(c); see also
Bongiovi v. Sullivan, 122 Nev. 556, 569 n.5, 138 P.3d 433, 443 11.5 (2006);
Elvik v. State, 114 Nev. 883, 888 & n.6, 965 P.2d 281, 284 & n.6 (1998).
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court judge should not have heard the trial because he had previously
recused himself from the case, (2) continuance of the preliminary hearing
for two weeks violated appellant's due process rights, (3) the State
improperly charged appellant four separate times, (4) a conviction for
sexual assault on a minor based solely on a victim's testimony is an
improper bill of pains and penalties, (5) the State called witnesses who
improperly vouched for the victims, and (6) cumulative error. Appellant
argues that all of his claims were raised as claims of ineffective assistance
of counsel, and therefore, should have been considered on their merits.
A review of appellant's petition and supplement reveals that
appellant raised all of the challenged claims independent of his claims of
ineffective assistance of counsel. Claims raised independent of claims of
ineffective assistance of counsel are subject to the procedural bar from
NRS 34.810(1)(b) "because such claims could have been . . . raised in a
direct appeal." Pellegrini v. State, 117 Nev. 860, 884, 34 P.3d 519, 535
(2001). The State opposed appellant's petition and asserted that the
challenged claims should be procedurally barred pursuant to NRS
34.810(1)(b). Appellant then replied and at that point asserted that the
challenged claims were raised as claims of ineffective assistance of counsel
claims, essentially attempting to raise new claims of ineffective assistance
of counsel on reply.
A petitioner may raise claims in his initial petition and, if the
district court appoints post-conviction counsel, in a supplement. NRS
34.724(1); NRS 34.750(3). All other pleadings may only be filed if ordered
by the district court. NRS 34.750(5). However, a district court has the
discretion to allow a petitioner to raise "new claims even as late as the
evidentiary hearing on the petition." State v. Powell, 122 Nev. 751, 758,
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138 P.3d 453, 458 (2006) (citing Barnhart v. State, 122 Nev. 301, 303, 130
P.3d 650, 651-52 (2006)); see also NRS 34.750(5). If a district court allows
a petitioner to raise new claims not included in the initial petition or in
the supplemental petition, it should do so explicitly on the record and
allow the State the opportunity to respond to the new claims. See
Barnhart, 122 Nev. at 303-04, 130 P.3d at 652.
Here, the district court did not specifically allow appellant to
raise new claims in his reply and the State attempted to file a sur-reply to
respond to appellant's additional claims, but the district court struck the
sur-reply from the record. As the district court did not explicitly allow
appellant to raise new claims and did not allow the State to respond to any
new claims, the actions of the district court demonstrate that the district
court exercised its discretion to refuse to allow appellant to include new
claims in the reply. Therefore, appellant fails to demonstrate that the
district court erred in declining to consider any of the improperly raised
claims of ineffective assistance of counsel.
As appellant was not permitted to amend his claims, all of the
challenged claims were raised independent of appellant's claims of
ineffective assistance of counsel. Accordingly, the challenged claims were
reasonably available to be raised on direct appeal. Therefore, the district
court did not err in concluding that appellant failed to demonstrate good
cause and actual prejudice to excuse his failure to raise these claims on
direct appeal. See NRS 34.810(1)(b)(2), Hathaway v. State, 119 Nev. 248,
253, 71 P.3d 503, 506 (2003). 2
Appellant also argues that the procedural bars are
2
unconstitutional. However, the procedural bars reasonably regulate post-
continued on next page . . .
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Finally, appellant argues that portions of the district court's
findings are not entitled to deference on appeal. As discussed previously,
this court gives deference to the district court's factual findings regarding
ineffective assistance of counsel but reviews the district court's application
of the law to those facts de novo. Lader, 121 Nev. at 686, 120 P.3d at
1166. In reviewing appellant's claims of ineffective assistance of counsel
under that standard, appellant fails to demonstrate that any of his claims
are meritorious. Further, appellant fails to demonstrate that the district
court erred in denying any of his additional claims or that the district
court's order was insufficient to allow this court to properly review
appellant's claims. Therefore, appellant is not entitled to relief regarding
his argument that the district court's order is not entitled to deference.
Having concluded appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.
1
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conviction petitions for a writ of habeas corpus, and are therefore
constitutional. See Pellegrini, 117 Nev. at 878, 34 P.3d at 531 (citing
Passanisi v. Director, Dep't Prisons, 105 Nev. 63, 66, 769 P.2d 72, 74
(1989)).
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M4kW:MMININEM IESON RlltaiM;W SEiat&MNSWINISM
cc: Hon. Linda Marie Bell, District Judge
Michael H. Schwarz
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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