petitioner must demonstrate that 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 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). 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).
At the evidentiary hearing, counsel testified that she made a
strategic decision to concede Gonzales' guilt to larceny because there was
overwhelming evidence that he had stolen property and therefore the only
viable issue was his intent when he entered the building. Counsel further
testified that she asked the district court to add larceny to the verdict form
so the jury would have the option of finding Gonzales guilty of something
rather than acquitting him outright, and that she discussed the merits of
this strategy with Gonzales and he understood the potential consequences.
The district court found that counsel's testimony was more credible than
Gonzales' testimony to the contrary and concluded that counsel's actions
were reasonable under the circumstances. Gonzales fails to demonstrate
that the district court's factual findings are clearly wrong and we agree
with its legal conclusions. See Doleman v. State, 112 Nev. 843, 848, 921
P.2d 278, 280-81 (1996) (counsel's strategic decisions are virtually
unchallengeable); Armenta-Carpio v. State, 129 Nev. „ 306 P.3d
395, 398 (2013) ("A concession of guilt is simply a trial strategy—no
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different than any other strategy the defense might employ at trial.").
Accordingly, we conclude that the district court did not err, and we
ORDER the judgment of the district court AFFIRMED.
debt ti J.
Pickering
ce_As- J
Parraguirre Saitta
cc: Hon. Stefany Miley, District Judge
Bush & Levy, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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