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).
First, appellant claimed that counsel was ineffective for failing
to object to the State's use of leading questions when asking the victim
about his identification of appellant and other instances of prosecutorial
misconduct. Appellant failed to demonstrate he was prejudiced. The
underlying claims were raised and rejected on appeal. See Reed v. State,
Docket No. 59254 (Order of Affirmance, April 12, 2012). Because this
court already concluded that appellant's underlying claim lacked merit,
appellant necessarily failed to demonstrate prejudice. Therefore, the
district court did not err in denying this claim.
Second, appellant claimed that counsel was ineffective for
failing to object to the sufficiency of the district court's finding with regard
to the deadly weapon enhancement. Appellant failed to demonstrate that
counsel was deficient or that he was prejudiced as he failed to allege
specific facts that, if true, entitled him to relief. Hargrove v. State, 100
Nev. 498, 502, 686 P.2d 222, 225 (1984). Further, we note that the victim
was shot with a firearm that was ultimately located in appellant's vehicle.
Therefore, the district court did not err in denying this claim.
Third, appellant claimed that counsel was ineffective for
failing to properly address misconduct by a juror. Appellant failed to
demonstrate that counsel was deficient or that he was prejudiced.
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Appellant failed to demonstrate that there was misconduct by the juror or
how counsel's failure to address the juror's conduct may have affected the
outcome at trial. Therefore, the district court did not err in denying this
claim.
Fourth, appellant claimed that counsel was ineffective for
failing to argue that the victim was incompetent to testify based on his use
of marijuana. Appellant failed to demonstrate that counsel was deficient
or that he was prejudiced. Appellant failed to demonstrate that the
victim's use of marijuana made him incompetent to testify, NRS 50.015
(stating that lelvery person is competent to be a witness except as
otherwise provided in this title"), and counsel was not deficient for failing
to make futile motions or objections. Donovan v. State, 94 Nev. 671, 675,
584 P.2d 708, 711 (1978). Further, counsel questioned the victim
extensively about his marijuana use and how that may have affected his
ability to perceive the events and to testify in court. Therefore, the district
court did not err in denying this claim.
Fifth, appellant claimed that counsel was ineffective for failing
to file a motion to exclude evidence based on an improper stop and failure
to give Miranda warnings. Miranda v. Arizona, 384 U.S. 436 (1966).
Appellant failed to demonstrate that counsel was deficient or that he was
prejudiced. In regard to the traffic stop, appellant failed to allege any
facts that, if true, would have entitled him to relief. Hargrove, 100 Nev. at
502, 686 P.2d at 225. Further, according to the testimony provided at
trial, appellant's statements regarding his ownership of the gun were
spontaneous and not made pursuant to interrogation by the police.
Therefore, there was no Miranda violation, and counsel was not deficient
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for failing to file a futile motion. Donovan, 94 Nev. at 675, 584 P.2d at
711. Accordingly, the district court did not err in denying this claim.
Sixth, appellant claimed that counsel was ineffective for
failing to retain a fingerprint expert who could have challenged the State's
experts. Appellant failed to demonstrate that counsel was deficient or
that he was prejudiced because he failed to allege specific facts that, if
true, entitled him to relief. Hargrove, 100 Nev. at 502, 686 P.2d at 225.
Appellant failed to explain how an expert would have made a difference at
trial. He merely stated that because the State had an expert, counsel also
should have had an expert testify regarding the fingerprints. Therefore,
the district court did not err in denying this claim.
Seventh, appellant claimed that counsel was ineffective for
failing to investigate facts and witnesses regarding appellant's claim that
he purchased the gun that was used in the crime sometime after the
crime. Specifically, he claimed that counsel should have interviewed and
had his fiancée testify that she saw appellant bring home a PlayStation
and an MP3 player around the time of the crime, which appellant claims
he purchased the same day he purchased the gun. Further, he claimed
that counsel should have obtained security footage from the Blockbuster
Video where he purchased the items.
Appellant failed to demonstrate that he was prejudiced
because he failed to demonstrate that there was a reasonable probability
of a different outcome at trial had his trial counsel presented appellant's
fiancée's testimony or tried to obtain the security footage. According to
appellant, his fiancée was not present when he supposedly purchased the
gun and other items and would only have been able to testify that
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appellant brought home the PlayStation and MP3 player. This testimony
would not have added much to appellant's story regarding purchasing the
gun because appellant does not claim that his fiancée knew about him
purchasing the gun. As for the security footage, appellant failed to
demonstrate that it showed the parking lot of the Blockbuster Video and
that the footage still existed at the time that appellant was arrested,
which was a month after the crime was committed. Therefore, the district
court did not err in denying this claim.
Eighth, appellant claimed that counsel was ineffective for
failing to make an adequate record because counsel failed to make sure
that the bench conferences were recorded. Appellant failed to support this
claim with specific facts that, if true, would entitle him to relief. See
Hargrove, 100 Nev. at 502, 686 P.2d at 225. Other than asserting in a
conclusory fashion that he was denied meaningful review, appellant failed
to explain how he was prejudiced. He did not specify the subject matter of
the bench conferences or explain their significance. See Daniel v. State,
119 Nev. 498, 508, 78 P.3d 890, 897 (2003). Therefore, the district court
did not err in denying this claim.
Finally, appellant claimed that counsel was ineffective for
failing to argue that the victim's identification of appellant should be
stricken because appellant did not fit the description given by the victim to
the police. Appellant failed to demonstrate that counsel was deficient
because he failed to demonstrate that a motion to strike the testimony
would have been successful. Donovan, 94 Nev. at 675, 584 P.2d at 711.
Further, counsel questioned the victim extensively about his description of
the suspects and argued to the jury that the description did not match
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appellant. Therefore, the district court did not err in denying this claim.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Gibbons
(4,-E J.
Douglas
J.
Saitta
cc: Hon. Valorie J. Vega, District Judge
Anthony Reed
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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