application of the law to those facts de novo. Lader v. Warden, 121 Nev.
682, 686, 120 P.3d 1164, 1166 (2005).
First, appellant argues that his trial counsel were ineffective
for conceding appellant's guilt to three of the charged crimes, for failing to
properly explain a concession strategy to appellant, and for failing to
ensure that the district court properly canvassed appellant regarding the
concession strategy. Appellant also argues that a concession strategy was
not proper because it caused the trial court to sever appellant's case from
the codefendants, which appellant argues harmed his ability to assert that
the codefendants had greater responsibility for the crimes. Appellant fails
to demonstrate either deficiency or prejudice for this claim. Counsel
informed the trial court that they had discussed the concession strategy
with appellant, that he agreed to it, and that they believed it was the best
course given the substantial amount of evidence against appellant for
those charges. The trial court canvassed appellant regarding this strategy
and appellant stated that he had discussed it with counsel and he agreed
with the concession strategy. 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 does
not demonstrate. See Armenta-Carpio v. State, 129 Nev. „ 306 P.3d
395, 398 (2013) (stating "[a] concession of guilt is simply a trial strategy—
no different than any other strategy the defense might employ at trial").
There was overwhelming evidence of appellant's guilt produced at trial,
given that appellant was discovered shortly after the 911 call wearing the
victim's jacket and in possession of the victim's property, the victim
identified appellant and specifically recalled appellant's tattoos,
appellant's DNA was recovered from the crime scene, and appellant was
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recorded attempting to conduct transactions at ATMs using the victim's
debit card. As there was overwhelming evidence of appellant's guilt for all
of the crimes charged, appellant fails to demonstrate a reasonable
probability of a different outcome at trial had counsel not pursued a
concession strategy, explained the strategy further to appellant, or
requested that the district court provide further explanation to appellant.
Therefore, the district court did not err in denying this claim.
Second, appellant argues that counsel were ineffective for
failing to move for a mistrial right after the trial court granted the
codefendants' motion for severance. Counsel moved for a mistrial based
upon the severance issue, but did so at a later point in the trial. Appellant
argues that the delay in moving for a mistrial was improper. Appellant
fails to demonstrate either deficiency or prejudice for this claim. This
court concluded on direct appeal that appellant was not entitled to a
mistrial based upon the severance of the codefendants' cases, Flores v.
State, Docket No. 56940 (Order of Affirmance, September 14, 2011), and
appellant fails to demonstrate a reasonable probability of a different
outcome had counsel moved for a mistrial earlier in the trial. Therefore,
the district court did not err in denying this claim.
Third, appellant argues that counsel were ineffective for
improperly conceding that appellant was criminally liable for use of a
firearm and a knife because counsel informed the jury in the opening
statement that appellant's codefendants had used a firearm and a knife.
Appellant fails to demonstrate either deficiency or prejudice for this claim.
Counsel did not concede that appellant was criminally liable for the use of
those two weapons. Counsel's statements, when placed in context,
suggested to the jury that while the evidence would establish that the
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codefendants used those weapons, the State would not produce evidence
proving that appellant knew of the use of those weapons. Counsel then
argued in closing that the State had failed to meet its burden to
demonstrate that appellant knew that the codefendants used weapons in
the course of the crimes. Appellant fails to demonstrate a reasonable
probability of a different outcome had counsel made different statements
or arguments with respect to the use of these weapons because there was
overwhelming evidence of guilt produced at trial that appellant knew of
the use of these weapons and that he possessed these weapons during the
course of the crimes. Therefore, the district court did not err in denying
this claim.
Fourth, appellant argues that the cumulative effect of
ineffective assistance of counsel warrants vacating his judgment of
conviction. Because appellant's ineffective-assistance claims lack merit,
he fails to demonstrate any cumulative error. Therefore, the district court
did not err in denying this claim. 1
Fifth, appellant argues that his counsel were ineffective for
failing to investigate mitigation evidence and then present such evidence
at the sentencing hearing. This claim was not raised in the petition before
the district court. Appellant only mentioned this issue in the procedural
history portion of his supplemental petition by saying that no mitigation
evidence was presented at the sentencing hearing. Appellant did not
1 TheState argues that this court should not consider this claim
because it was not raised before the district court. However, a review of
appellant's petition and supplement reveal that this claim was raised
below.
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claim that counsel was ineffective regarding this issue and did not discuss
any mitigation evidence that reasonably diligent counsel could have
obtained. Therefore, we decline to consider this claim in the first instance
on appeal. See Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173
(1991), overruled on other grounds by Means v. State, 120 Nev. 1001, 1012-
13, 103 P.3d 25, 33 (2004).
Finally, appellant argues that the district court's order is not
entitled to deference because it did not sufficiently address all of
appellant's claims and did not make proper findings of fact. Appellant
argues that because the district court's order is insufficient, this court
should review his claims under a de novo standard. 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, we conclude that appellant fails to
demonstrate that any of his claims are meritorious. Moreover, the district
court's order is sufficient to permit this court to fully 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 that appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.
Pickering
J.
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Parraguirre
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cc: Hon. Linda Marie Bell, District Judge
Langford McLetchie LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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