Strickland). Both components of the inquiry must be shown. Strickland,
466 U.S. at 697.
First, appellant claimed that his trial counsel had a conflict of
interest because counsel was a former district attorney. This claim was
without merit. Counsel was not employed in Lincoln County and there is
no evidence that counsel had any interaction with appellant in his
capacity as a district attorney. Accordingly, appellant failed to
demonstrate that counsel's former employment as a district attorney
caused an actual conflict of interest or that his counsel had divided
loyalties. See Clark v. State, 108 Nev. 324, 326, 831 P.2d 1374, 1376
(1992). Therefore, the district court did not err in denying this claim.
Second, appellant claimed that his trial counsel was
ineffective for failing to properly defend him at the preliminary hearing.
Appellant failed to demonstrate deficiency or prejudice. Counsel
challenged the victim's version of events and the State's evidence at the
preliminary hearing. Appellant failed to demonstrate a reasonable
probability of a different outcome had counsel raised further questions or
arguments during the preliminary hearing as the State presented
sufficient evidence to support a probable cause finding for the charges
against appellant. See Sheriff, Washoe Cnty. v. Hodes, 96 Nev. 184, 186,
606 P.2d 178, 180 (1980). Therefore, the district court did not err in
denying this claim.
Third, appellant claimed that his trial counsel was ineffective
for failing to interview and present testimony from potential witnesses.
Appellant failed to demonstrate deficiency or prejudice. Appellant merely
speculated that the potential witnesses would have provided favorable
testimony. A bare claim, such as this one, is insufficient to demonstrate a
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petitioner is entitled to relief. See Hargrove v. State, 100 Nev. 498, 502-03,
686 P.2d 222, 225 (1984); see also Browning v. State, 120 Nev. 347, 357, 91
P.3d 39, 47 (2004) ("[S]peculation does not demonstrate any prejudice.").
In addition, the information regarding the victim's stepfather and the
medical examination of the victim, which appellant asserted these
witnesses would have provided, was already presented at trial. Appellant
failed to demonstrate a reasonable probability of a different outcome at
trial had counsel discovered and presented further information of the type
appellant sought. Therefore, the district court did not err in denying this
claim.
Fourth, appellant claimed that his trial counsel was ineffective
for failing to present facts discovered by counsel's investigator that would
have demonstrated the victim fabricated the abuse allegations to hide her
sexual activity with her boyfriend. Appellant failed to demonstrate
deficiency or prejudice for this claim. Appellant failed to demonstrate that
evidence related to the victim's sexual activity with a boyfriend would
have been admissible. See NRS 50.090. Appellant failed to demonstrate a
reasonable probability of a different outcome had counsel attempted to
present this information, as DNA evidence demonstrated that appellant
had sexual contact with the 13-year-old victim. Therefore, the district
court did not err in denying this claim.
Fifth, appellant claimed that his trial counsel was ineffective
for failing to interview the victim or obtain recordings of the victim's police
interview. Appellant failed to demonstrate that he was prejudiced as
counsel extensively cross-examined the victim regarding her version of
events and appellant failed to demonstrate a reasonable probability of a
different outcome had counsel interviewed the victim or further reviewed
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her statements prior to trial. Therefore, the district court did not err in
denying this claim.
Sixth, appellant claimed that his trial counsel was ineffective
for failing to confer with appellant, investigate facts, file motions, or seek
full discovery from the State. Appellant asserted that counsel failed to
perform these actions because counsel accepted the State's version of the
facts. Appellant failed to demonstrate deficiency or prejudice for this
claim. The record reveals that counsel challenged the State's case against
appellant. See Hargrove, 100 Nev. 502-03, 686 P.2d at 225. Appellant
failed to demonstrate a reasonable probability of a different outcome at
trial had counsel discussed the case with appellant further, investigated
further, or filed additional motions. Therefore, the district court did not
err in denying this claim.
Seventh, appellant claimed that his trial counsel was
ineffective for failing to challenge the State's forensic evidence, as
appellant asserted that the DNA evidence belonged to a different person.
Appellant failed to demonstrate deficiency or prejudice. A portion of the
DNA report listed the sample as JM6 when the correct notation was
actually JM5. The State's DNA expert witness explained that there was a
typographical error in the report, that she was certain that the sample
tested was appellant's, and that the sperm discovered on the couch
cushions belonged to appellant. Appellant failed to demonstrate that
objectively reasonable counsel would have argued under these
circumstances that the DNA specimen did not belong to appellant.
Appellant failed to demonstrate a reasonable probability of a different
outcome at trial had counsel argued the DNA specimen belonged to a
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different person. Therefore, the district court did not err in denying this
claim.
Eighth, appellant claimed that his trial counsel was ineffective
for failing to argue that the State withheld exculpatory evidence in the
form of a recording of the interview with the victim's mother. Appellant
failed to demonstrate deficiency or prejudice. Given the testimony that
demonstrated appellant's mother was asleep during both sexual
encounters, the DNA evidence demonstrating that appellant had sexual
contact with the victim, and appellant's own statement to the police that
he had "apparently" had sex with the victim, appellant failed to
demonstrate that any recording of an interview with the victim's mother
would have been favorable to his defense. See State v. Bennett, 119 Nev.
589, 599, 81 P.3d 1, 8 (2003). Appellant failed to demonstrate a
reasonable probability of a different outcome had counsel argued the State
improperly withheld the recording. Therefore, the district court did not
err in denying this claim.
Ninth, appellant claimed that his trial counsel was ineffective
for failing to object when the State vouched for the credibility of the
victim. Appellant failed to demonstrate that he was prejudiced. Given the
DNA evidence, appellant's statement to the police, and the victim's
testimony, appellant failed to demonstrate a reasonable probability of a
different outcome had counsel objected to vouching for the credibility of
the victim. Therefore, the district court did not err in denying this claim.
Tenth, appellant claimed that his trial counsel was ineffective
for failing to argue that the police improperly failed to gather condoms and
other items which appellant asserted belonged to the victim and would
have demonstrated that the victim had engaged in sexual activity with her
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boyfriend and then fabricated the instant allegations to hide that activity.
Appellant failed to demonstrate deficiency or prejudice as appellant failed
to demonstrate that the evidence he asserted the State should have
collected was material—that there is a reasonable probability that the
outcome of trial would have been different had the defense had access to
the uncollected evidence. See Daniels v. State, 114 Nev. 261, 267, 956 P.2d
111, 115 (1998). Moreover, appellant failed to demonstrate that evidence
related to the victim's sexual activity with a different person would have
been admissible. See NRS 50.090. Therefore, the district court did not err
in denying this claim.
Eleventh, appellant claimed that his trial counsel was
ineffective for failing to seek suppression of evidence collected from the
victim's home, as appellant asserted the State was not permitted to collect
evidence from an occupied dwelling. Appellant failed to demonstrate
deficiency or prejudice. The victim's mother gave the police permission to
collect the evidence and appellant did not reside at the home when the
evidence was collected. Under these circumstances, appellant was without
standing to challenge the warrantless collection of evidence from the
victim's home. See Hicks v. State, 96 Nev. 82, 83, 605 P.2d 219, 220
(1980). Appellant failed to demonstrate a reasonable probability of a
different outcome had counsel sought to suppress this evidence, as the
victim's mother owned the couch and permitted the officer to collect the
couch cushions. Therefore, the district court did not err in denying this
claim.
Twelfth, appellant claimed that his trial counsel was
ineffective for failing to object to admission of improperly obtained
evidence from the couch cushions, as an officer removed the cushions and
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later returned them to take photographs of the cushions in place on the
couch. Appellant failed to demonstrate either deficiency or prejudice for
this claim as he failed to demonstrate that the officer committed any error
in the collection of this evidence or in returning to obtain photographs of
the couch cushions on the couch. Therefore, the district court did not err
in denying this claim.
Thirteenth, appellant claimed that his trial counsel was
ineffective for failing to question the victim regarding inconsistent
statements she made regarding her stepfather sleepwalking following one
of the incidents. Appellant failed to demonstrate either deficiency or
prejudice for this claim. Counsel questioned the victim about inconsistent
statements regarding the sexual encounters and appellant failed to
demonstrate that objectively reasonable counsel would have questioned
her regarding her statements concerning her sleepwalking stepfather.
Appellant failed to demonstrate a reasonable probability of a different
outcome had counsel posed questions of this nature. Therefore, the
district court did not err in denying this claim.
Next, appellant claimed that his appellate counsel was
ineffective. 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
v. Washington, 466 U.S. 668, 697 (1984). 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
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every conceivable issue is not raised on appeal. Ford v. State, 105 Nev.
850, 853, 784 P.2d 951, 953 (1989).
First, appellant claimed that his appellate counsel was
ineffective for failing to discuss the appeal with appellant prior to
submitting the appellate briefs and for failing to rebut the State's factual
assertions on appeal. Appellant failed to demonstrate deficiency or
prejudice. Appellant did not identify any claims that objectively
reasonable counsel would have raised on appeal had counsel discussed the
appeal with appellant. Moreover, counsel successfully obtained a reversal
of appellant's convictions for sexual assault on a child under 14,
demonstrating that counsel's decisions regarding the appeal were not
deficient. Appellant failed to demonstrate a reasonable likelihood of
success on appeal regarding his remaining convictions had counsel
discussed the appellate process with appellant or raised further
arguments. Therefore, the district court did not err in denying this claim.
Second, appellant claimed that his appellate counsel was
ineffective for failing to inform him in a timely manner that two of his
convictions had been overturned by this court on appeal. Appellant failed
to demonstrate prejudice related to this claim as he failed to demonstrate
a reasonable likelihood of a different outcome had counsel informed him of
the direct appeal decision at an earlier time. Therefore, the district court
did not err in denying this claim.
Third, appellant claimed that his appellate counsel was
ineffective for failing to oppose the State's dismissal of the sexual assault
charges after the conclusion of the direct appeal, as appellant wished to
have an additional trial. Appellant failed to demonstrate deficiency.
Appellant failed to demonstrate that objectively reasonable counsel would
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have opposed the State's dismissal of the sexual assault charges as
objectively reasonable counsel would have been satisfied that appellant
would no longer face conviction for those charges. Therefore, the district
court did not err in denying this claim.
Finally, appellant claimed that the State violated his due
process rights by presenting perjured testimony, that the State falsely
asserted that he had admitted to sexual activity with the victim, and that
the district court improperly declined to play the entire recording of the
victim's previous testimony. These claims could have been raised on direct
appeal and appellant failed to demonstrate cause for the failure to do so
and actual prejudice. See NRS 34.810(1)(b). Therefore, the district court
did not err in denying these claims.
Having concluded that appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED. 2
,J.
Hardesty
List. J. Ckga
Douglas Cherry
2We 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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cc: Hon. Steve L. Dobrescu, District Judge
Patrick Owen Madsen
Attorney General/Carson City
Lincoln County District Attorney
Lincoln County Clerk
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