Bradford (Julius) v. State

because they were considered and rejected on direct appeal. Bradford v.
State, Docket No. 50630 (Order of Affirmance, June 30, 2009). The law of
the case "cannot be avoided by a more detailed and precisely focused
argument." Id. While appellant argues that this court erred in its
disposition of these issues on direct appeal, appellant fails to demonstrate
that the law of the case should not be applied. Tien Fu Hsu v. County of
Clark, 123 Nev. 625, 630-31, 173 P.3d 724, 728-29 (2007) (discussing when
the doctrine of the law of the case should not be applied). Therefore,
appellant is not entitled to relief for these claims.
Next, appellant argues that the district court erred in denying
his claims of ineffective assistance of 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 if 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). To warrant an evidentiary hearing, a petitioner
must raise claims that are supported by specific factual allegations that

2
are not belied by the record and, if true, would entitle him to relief.
Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).
Appellant argues that his trial counsel was ineffective because
counsel's questioning of appellant opened the door to evidence related to
appellant's gang activities and a prior robbery. Appellant also asserts that
counsel should have advised him not to testify because he would be
impeached with prior bad acts. Appellant fails to demonstrate that he was
prejudiced. Appellant fails to demonstrate a reasonable probability of a
different outcome at trial had counsel advised him differently regarding
his own testimony or posed different questions to appellant during his
testimony, as there was strong evidence of appellant's guilt presented at
trial regardless of the prior-bad-act evidence. The evidence included a
witness who saw appellant and his codefendants initiate the altercation
with the victim and appellant's own statements regarding his involvement
in the attempted robbery which culminated in the death of the victim,
including admitting that they had planned to rob the victim and that
appellant had told the gunman to shoot the victim.
In addition, the trial court informed appellant that he had the
right to testify and that the decision whether to testify was his alone.
Appellant acknowledged that he had discussed testifying with counsel and
that he understood that he had to decide whether to testify. Given those
admissions, appellant fails to demonstrate a reasonable probability of a
different outcome had counsel further discussed testifying with appellant.
Therefore, appellant fails to demonstrate that the district court erred in
denying this claim without conducting an evidentiary hearing or allowing

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appellant to conduct discovery in preparation for an evidentiary hearing. 1
See NRS 34.770(2); NRS 34.780(2).
Next, appellant argues that this court should consider the
claims in this appeal and claims that are raised in a separate appeal for
their cumulative effect. 2 This court has already denied appellant's request
to consolidate the two appeals and we deny appellant's attempt to reargue
that decision. Bradford v. State, Docket Nos. 58529 and 61559 (Order
Denying Motions, September 21, 2012). To the extent appellant argues
that errors alleged in this appeal amount to ineffective assistance of
counsel, appellant fails to demonstrate prejudice for his claims raised in
this appeal, and therefore, appellant fails to demonstrate that cumulative
errors amount to ineffective assistance of counsel.
Finally, appellant argues that the district court's order was
improper as the order was prepared by the State without allowing
appellant an opportunity to review the proposed order and the order failed
to adequately address appellant's claims. As discussed previously,
appellant fails to demonstrate that the district court erred in denying any

'Appellant also argues that his prior post-conviction counsel, who
represented appellant during the district court proceedings, did not raise
the issue of trial counsel's advice regarding whether he should testify.
However, a review of the petition reveals that the issue was properly
raised in the district court and is properly before this court in this appeal.
To the extent appellant attempts to argue his that prior post-conviction
counsel was ineffective, we decline to consider claims of ineffective
assistance of post-conviction counsel in the first instance in this appeal.
See Davis, 107 Nev. at 606, 817 P.2d at 1173.

2 The district court's denial of appellant's second post-conviction
petition is on appeal before this court in Docket No. 61559.

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of his claims. Even assuming the district court erred by not allowing
appellant the opportunity to review and respond to the proposed order, we
conclude any error was harmless and appellant fails to demonstrate
prejudice. See NRS 178.598 (stating that any error, defect, irregularity or
variance which does not affect substantial rights shall be disregarded).
But cf. Byford v. State, 123 Nev. 67, 69, 156 P.3d 691, 692 (2007) (stating
that when a district court requests a party to prepare a proposed order,
the court must ensure that the other parties are aware of the request and
given the opportunity to respond to the proposed order). Appellant does
not demonstrate the error adversely affected the outcome of the
proceedings or his ability to seek full appellate review. Therefore,
appellant is entitled to relief based on this argument.
Having concluded appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.

J.
Hardesty

Cherry

cc: Hon. Michelle Leavitt, District Judge
Law Office of Lisa Rasmussen
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk