the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120
P.3d 1164, 1166 (2005).
First, appellant argues that counsel was ineffective for failing
to obtain a DNA expert to determine whether two other men could have
been the source of the semen and the victim's injuries. Appellant has
failed to demonstrate deficiency or prejudice. Appellant's defense was that
the sexual contact was consensual; therefore, evidence of another person
having had similar contact with the victim would have been irrelevant.
Further, appellant did not say why counsel should have doubted and thus
sought to impeach the victim's statement that she had not recently been
sexually active. Thus even if his claims were true, appellant would not
have been entitled to relief. See Hargrove v. State, 100 Nev. 498, 502-03,
686 P.2d 222, 225 (1984) (holding that a petitioner is not entitled to an
evidentiary hearing where his claims are unsupported by specific factual
allegations that, if true, would have entitled him to relief). We therefore
conclude that the district court did not err in denying this claim without
an evidentiary hearing.
Second, appellant argues that counsel was ineffective for not
proposing a more reasonable curative instruction to the jury after the
prosecutor's misconduct during opening statements. Appellant has failed
to demonstrate deficiency or prejudice. Appellant does not state what
instruction counsel should have requested that would have had the
desired effect of both alleviating the misconduct and not calling it to the
jury's attention. See id. We therefore conclude _that the district court did
not err in denying this claim.
Appellant also argues that the district court erred in denying
his claim that evidence of uncharged prior conduct was improperly
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admitted. This claim could have been raised in appellant's direct appeal
from his judgment of conviction.' See NRS 34.810(1)(b)(2). Appellant's
petition was therefore procedurally barred absent a demonstration of good
cause and actual prejudice. NRS 34.810(1)(b). Appellant made no cogent
argument of good cause or actual prejudice, and we therefore conclude
that the district court did not err in denying his claim. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Pickering
g eki4 tihei J.
uirreltiarja
Prg"n
c , J.
Saitta
cc: Hon. Janet J. Berry, District Judge
Janet S. Bessemer
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
Willatoro v. State, Docket No. 54488 (Order of Affirmance,
September 29, 2010).
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Villatoro (Balmore) v. State
Combined Opinion