ineffective assistance of trial counsel, a petitioner must demonstrate that
trial 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 trial 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).
First, appellant claims that trial counsel was ineffective for
failing to object to the exclusion of all of the DNA evidence. Appellant fails
to demonstrate that he was prejudiced. Because the DNA evidence that
appellant claims should not have been excluded was neutral at best,
appellant fails to demonstrate a reasonable probability of a different
outcome at trial had the DNA evidence been admitted. Therefore, the
district court did not err in denying this claim.
Second, appellant claims that trial counsel was ineffective for
failing to timely notice Meyer as a witness. Appellant fails to demonstrate
that counsel was deficient. At the evidentiary hearing, trial counsel
testified that appellant refused to inform him of what Meyer would testify
about. It was not until the night before the first day of trial that trial
counsel learned what Meyer would testify about. Therefore, trial counsel
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was not deficient for failing to timely notice Meyer as a witness.
Accordingly, the district court did not err in denying this claim.
Third, appellant claims that trial counsel was ineffective for
failing to object to several instances of prosecutorial misconduct during
closing arguments. Appellant fails to demonstrate that counsel was
deficient or that he was prejudiced. Trial counsel testified at the
evidentiary hearing that he could not pay attention to the State's closing
argument because appellant would not stop talking to him. Therefore,
trial counsel was not deficient for failing to object to the alleged instances
of prosecutorial misconduct. Further, appellant fails to demonstrate a
reasonable probability of a different outcome at trial had trial counsel
objected because sufficient evidence was presented that appellant
possessed the drugs and guns. Further, the jury was instructed that the
statements, arguments, and opinions of counsel were not to be considered
as evidence. Therefore, the district court did not err in denying this claim.
Fourth, appellant claims that trial counsel was ineffective for
failing to cross-examine Barker with her inconsistent statements.
Appellant fails to demonstrate that trial counsel was deficient or that he
was prejudiced. Appellant fails to demonstrate that Barker's statements
were inconsistent. Further, he fails to demonstrate a reasonable
probability of a different outcome at trial had trial counsel asked her
about those statements. Therefore, the district court did not err in
denying this claim.
Next, appellant claims that the district court erred by denying
his claims of ineffective assistance of appellate counsel To prove
ineffective assistance of appellate counsel, a petitioner must demonstrate
that counsel's performance was deficient in that it fell below an objective
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standard of reasonableness, and resulting prejudice such that the omitted
issue would have a reasonable probability of success on appeal. Kirksey v.
State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996). Appellate counsel is
not required to raise every non-frivolous issue on appeal. Jones v. Barnes,
463 U.S. 745, 751 (1983). Rather, appellate counsel will be most effective
when every conceivable issue is not raised on appeal. Ford v. State, 105
Nev. 850, 853, 784 P.2d 951, 953 (1989). Both components of the inquiry
must be shown. Strickland, 466 U.S. at 697. We give deference to the
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, 121 Nev. at 686, 120 P.3d at 1166.
First, appellant claims that appellate counsel was ineffective
for failing to raise claims on appeal that the State committed prosecutorial
misconduct during closing arguments. Appellant fails to demonstrate that
the claims had a reasonable probability of success on appeal for the
reasons discussed above. Therefore, the district court did not err in
denying this claim.
Second, appellant claims that appellate counsel was
ineffective for failing to provide this court with a pretrial hearing
transcript that demonstrates that the State agreed not to introduce bad
act evidence that appellant was wanted for other crimes. Appellant claims
that had appellate counsel provided this transcript, his claim that the
State improperly introduced bad act evidence would have been granted on
appeal. Appellant fails to demonstrate that appellate counsel was
deficient or that he was prejudiced. The transcript cited by appellant only
demonstrates that the State agreed not to introduce evidence that
appellant was being followed by the Repeat Offender Program officers.
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There is no indication that the State agreed not to inform the jury that
appellant was wanted for a misdemeanor, which was the basis for the stop
of appellant. 1 Therefore, appellant fails to demonstrate a reasonable
probability of success on appeal had appellate counsel provided the
transcript, and the district court did not err in denying this claim.
Third, appellant claims that appellate counsel was ineffective
for failing to appeal the district court's decision to exclude all of the DNA
evidence. As discussed above, the DNA evidence was at best neutral, and
appellant fails to demonstrate that there was a reasonable probability of
success on appeal had appellate counsel raised this claim. Therefore, the
district court did not err in denying this claim.
Fourth, appellant claims that appellate counsel was ineffective
for failing to argue on appeal that the evidence of trafficking in a
controlled substance and being a felon in possession of a firearm was
insufficient. Appellant fails to demonstrate that appellate counsel was
deficient or that he was prejudiced because the evidence supporting the
convictions, when viewed in the light most favorable to the State, was
sufficient to establish guilt beyond a reasonable doubt as determined by a
rational trier of fact. NRS 453.3385(1); NRS 202.360; Jackson v. Virginia,
443 U.S. 307, 319 (1979); McNair v. State, 108 Nev. 53, 56, 825 P.2d 571,
573 (1992). Therefore, the district court did not err in denying this claim.
Fifth, appellant claims that appellate counsel was ineffective
for failing to consult with him about the appeal. Appellant fails to
lAppellant's claim that trial counsel was ineffective for failing to
object to the State's use of the prior bad acts fails for the same reason.
The State never agreed not to mention that appellant was wanted for a
misdemeanor.
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demonstrate that he was prejudiced because he failed to demonstrate that
there were any claims that appellate counsel should have raised that had
a reasonable probability of success on appeal. Therefore, the district court
did not err in denying this claim.
Finally, appellant claims that the State committed
prosecutorial misconduct when it argued in closing arguments that no one
else could have put the duffel bag in the car and that Meyer had no
connection whatsoever to the car and evidence found there. Appellant
failed to allege this claim in terms of him receiving ineffective assistance
of counsel. Therefore, to the extent that appellant attempted to raise this
claim as an ineffective-assistance-of-counsel claim, he failed to provide
cogent argument. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6
(1987). Further, to the extent that he raised this as strictly a
prosecutorial misconduct claim, this claim should have been raised on
direct appeal from his judgment of conviction and sentence and appellant
failed to demonstrate good cause for his failure to do so. See NRS
34.810(1)(b)(2). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Pickering
Pa...o.
Parragpjr-re
t% "tr J.
J.
Saitta
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cc: Second Judicial District Court Dept. 10
Hon. Steven P. Elliott, Senior Judge
Janet S. Bessemer
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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