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 trial counsel was ineffective for
failing to explain a guilty plea agreement to him. Appellant failed to
demonstrate that trial counsel was deficient or that he was prejudiced.
The plea offer was communicated to appellant, and there was no
allegation that trial counsel told him to refuse the plea agreement.
Therefore, Missouri v. Frye, 566 U.S. , 132 S. Ct. 1399 (2012) and
Latter v. Cooper, 566 U.S. , 132 S. Ct. 1376 (2012), do not apply.
Further, it appears from his petition that appellant rejected the plea
agreement because he wanted more favorable terms. Accordingly, the
district court did not err in denying this claim.
Second, appellant claimed that trial counsel was ineffective for
failing to provide appellant with discovery or to discuss the discovery with
appellant. Appellant failed to demonstrate that he was prejudiced
because he failed to demonstrate a reasonable probability of a different
outcome at trial had trial counsel provided or discussed the discovery with
appellant. Therefore, the district court did not err in denying this claim.
Third, appellant claimed that trial counsel was ineffective for
failing to interview or depose the Walmart employees. Appellant failed to
demonstrate that trial counsel was deficient or that he was prejudiced.
Appellant failed to demonstrate that interviewing or deposing the
employees would have produced any exculpatory evidence as the
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employees involved in the case testified at trial. Therefore, he failed to
demonstrate a reasonable probability of a different outcome at trial had
trial counsel interviewed or deposed these witnesses. Accordingly, the
district court did not err in denying this claim.
Fourth, appellant claimed that trial counsel was ineffective for
failing to interview and call mitigating witnesses at trial. Appellant failed
to demonstrate trial counsel was deficient or that he was prejudiced. Trial
counsel called a friend of appellant's at trial who testified about the same
information that appellant wanted presented at trial through these other
witnesses. Appellant failed to demonstrate that further evidence
presented through these other witnesses would have created a reasonable
probability of a different outcome at trial. Therefore, the district court did
not err in denying this claim.
Fifth, appellant claimed that trial counsel was ineffective for
failing to object to the State's use of "thought bubbles" that were added to
the security video. Appellant failed to demonstrate that trial counsel was
deficient or that he was prejudiced. There was no security video presented
at trial. Therefore, counsel was not ineffective for failing to object to it. It
appears appellant is complaining about a PowerPoint presentation used
by the State in its closing arguments. Appellant failed to demonstrate
that the State's use of this PowerPoint presentation was inappropriate,
and counsel is not deficient for failing to make futile objections. See
Donovan v. State, 94 Nev. 671, 675, 584 P.2d 708, 711 (1978). Therefore,
the district court did not err in denying this claim.
Sixth, appellant claimed that trial counsel was ineffective for
failing to call an expert in digital video enhancement who could have
zoomed in on his license to demonstrate that appellant provided a valid
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license. As stated above, there was no security video of the offense;
therefore, trial counsel was not deficient in failing to call an expert to
examine the video. Accordingly, the district court did not err in denying
this claim.
Seventh, appellant claimed that trial counsel was ineffective
for failing to prepare a defense witness for trial. Appellant failed to
demonstrate that trial counsel was deficient or that he was prejudiced
because he failed to support this claim with specific facts that, if true,
entitled him to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d
222, 225 (1984). Appellant failed to state how trial counsel could have
prepared this witness for trial or how that preparation would have had a
reasonable probability of changing the outcome at trial. Therefore, the
district court did not err in denying this claim.
Eighth, appellant claimed that trial counsel was ineffective for
failing to argue reasonable doubt and lack of intent as a defense strategy.
Appellant failed to demonstrate that trial counsel was deficient or that he
was prejudiced. Because appellant confessed to the police that he
knowingly tried to cash a forged check, counsel tried to argue that
appellant was drunk rather than trying to argue that there was a lack of
proof This was a reasonable trial strategy for trial counsel to pursue.
Further, trial counsel did present evidence attacking appellant's intent by
calling a defense witness who testified that appellant was helping the
woman with her car and would not have cashed a forged check. Therefore,
the district court did not err in denying this claim.
Ninth, appellant claimed that trial counsel was ineffective for
failing to investigate and prepare for trial. Appellant failed to
demonstrate that he was prejudiced. Appellant failed to demonstrate a
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reasonable probability of a different outcome at trial had trial counsel
investigated further given appellant's confession to the police. Therefore,
the district court did not err in denying this claim.
Tenth, appellant claimed that trial counsel was ineffective for
failing to call him to testify at trial. Appellant failed to demonstrate that
trial counsel was deficient. Appellant was canvassed by the district court
about his right to testify and was informed that the decision to testify was
his alone. Therefore, the district court did not err in denying this claim.
Eleventh, appellant claimed that trial counsel was ineffective
for failing to file a motion for preservation of the tapes of trial and the
security video. Appellant failed to demonstrate that trial counsel was
deficient or that he was prejudiced. As stated previously, there was no
security video. Further, appellant failed to explain what other tapes at
trial should have been preserved or how preserving these other tapes
would have had a reasonable probability of changing the outcome of trial.
Therefore, the district court did not err in denying this claim.
Twelfth, appellant claimed that trial counsel was ineffective
for failing to correct information in appellant's presentence report.
Appellant failed to demonstrate that trial counsel was deficient or that he
was prejudiced. Trial counsel informed the district court of an error in the
presentence report at sentencing regarding the number of prior
incarcerations. Further, appellant failed to demonstrate a reasonable
probability of a different outcome at sentencing had trial counsel informed
the district court of other allegedly incorrect information in the
presentence report. Therefore, the district court did not err in denying
this claim.
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Thirteenth, appellant claimed that trial counsel was
ineffective for failing to argue that he only had one felony conviction in the
last ten years and therefore should not qualify for the habitual criminal
enhancement. Further, he claimed that trial counsel should have argued
that his prior convictions were old or non-violent and should have called
witnesses in mitigation of sentence. Appellant failed to demonstrate that
trial counsel was deficient or that he was prejudiced. Appellant's first
argument is based on a misunderstanding of law in regard to habitual
criminal treatment. To qualify for the small habitual criminal
enhancement, a defendant must have a minimum of two prior felony
convictions, which could have happened at any time in his past. 2 NRS
207.010(1)(a). Appellant had seven prior felony convictions, more than
enough to qualify for the small habitual criminal enhancement.
Further, trial counsel argued that appellant should not receive
habitual criminal treatment, that one of his convictions noticed by the
State did not qualify, and informed the district court of appellant's
educational, work, and family history. Appellant also gave a lengthy
statement regarding his views on the case, his family, and his drug
history. Appellant failed to demonstrate that further evidence in
mitigation was admissible, see NRS 176.015, or that it would have had a
reasonable probability of changing the outcome at sentencing. Therefore,
the district court did not err in denying this claim.
2We note that the judgment of conviction appears to have an error in
it because it states that appellant was sentenced under the large habitual
criminal statute. At the sentencing hearing, the district specifically
referenced the small habitual statute, NRS 207.010(1)(a), and gave
appellant a sentence within the parameters of that statute.
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Next, appellant claimed that he received 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 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). 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 claimed that appellate counsel was ineffective
for refusing to raise the claims that he wanted on appeal. Appellant failed
to demonstrate that appellate counsel was deficient or that he was
prejudiced. A criminal defendant does not have a constitutional right to
compel counsel to raise specific issues on appeal and, in order to provide
effective assistance, appellate counsel will be most effective when every
conceivable issue is not raised on appeal. Jones v. Barnes, 463 U.S. 745,
751 (1983); Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989).
Further, appellant failed to demonstrate that any issue that was not
raised had a reasonable likelihood of success on appeal. Therefore, the
district court did not err in denying this claim.
Second, appellant claimed that appellate counsel was
ineffective for failing to "federalize" his claims. Appellant failed to
demonstrate that appellate counsel was deficient or that he was
prejudiced because he failed to demonstrate that he would have gained a
more favorable standard of review or a more favorable result on direct
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appeal had appellate counsel federalized the arguments. See Browning v.
State, 120 Nev. 347, 365, 91 P.3d 39, 52 (2004). Therefore, the district
court did not err in denying this claim
Third, appellant claimed that appellate counsel was ineffective
for failing to withdraw as counsel. Appellant failed to demonstrate that
appellate counsel was deficient or that he was prejudiced. Appellant filed
a motion in proper person to dismiss and replace counsel after appellate
counsel filed the fast track statement in this court. This court denied the
motion, and appellant has not demonstrated any grounds that would have
caused objectively reasonable counsel to file a motion to withdraw.
Therefore, it would have been unnecessary to withdraw. Further, he
failed to demonstrate a reasonable probability of success on appeal had
appellate counsel asked and been allowed to withdraw. Therefore, the
district court did not err in denying this claim.
Next, appellant claimed that the trial court erred by denying
his motion for new counsel. He also claimed that perjured testimony was
presented at trial. These claims could have been raised on direct appeal
and appellant failed to demonstrate cause and actual prejudice to
overcome the procedural bar. NRS 34.810(1)(b). Therefore, the district
court did not err in denying these claims.
Finally, appellant claimed that the cumulative errors of trial
and appellate counsel entitled him to relief Appellant failed to
demonstrate that any alleged errors of counsel, singly or cumulatively,
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would have had a reasonable probability of altering the outcome at trial or
on appeal. Accordingly, we
ORDER the judgment of the district court AFFIRMED. 3
J.
Pickering
ea.,‘
ba-„X
Parr
J.
aitta
cc: Hon. Jessie Elizabeth Walsh, District Judge
Patrick Phillip Decarolis
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
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