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 his trial counsel failed to present
evidence that clearly supported his claim of self-defense. In particular,
appellant claimed that trial counsel should have presented evidence that
his cellmate possessed an inmate-made weapon and the dangers of assault
during "cuff-up" procedures. Appellant failed to demonstrate that his trial
counsel's performance was deficient or that he was prejudiced. Appellant
failed to demonstrate that the weapon was in the cell on the date of the
incident or that the cellmate had knowledge of the weapon. The evidence
purporting to demonstrate the cellmate's possession of a weapon indicated
that a weapon was found a month after the incident. Furthermore, the
letter was addressed to appellant and there is no• indication that the
weapon can be attributed to the cellmate. Appellant failed to present any
evidence to support his claim about the dangers of assault during "cuff-up"
procedures. 2 Given the testimony of the correctional officers at trial and
the video evidence, appellant failed to demonstrate that there was a
reasonable probability of a different result at trial had counsel presented
any of the above evidence. Therefore, the district court did not err in
denying this claim.
2 The district court correctly observed that trial counsel was not
ineffective for failing to cross-examine certain correctional officers because
they did not actually testify at trial.
SUPREME COURT
OF
NEVADA
2
931 1947A e.
Second, appellant claimed that trial counsel failed to object to
admission of a photograph of the victim's face showing severe bruising and
blood on his face. Appellant complained that the victim, appellant's
cellmate, had been beaten by correctional officers during his extraction
from the cell. In support, appellant noted that Correctional Officer
Gardener testified at the cellmate's preliminary hearing that she punched
and kicked his cellmate. Appellant failed to demonstrate that his trial
counsel's performance was deficient or that he was prejudiced. The video
of the incident and extraction shows Correctional Officer Gardener
striking appellant in the torso and legs. Further, the excerpt from the
cellmate's preliminary hearing does not support the allegation that
Correctional Officer Gardner struck his cellmate in the face. The video did
not show Correctional Officer Gardner striking the cellmate in the face.
The video also allowed the jury to view the cellmate's condition upon
extraction and his condition after he was removed to the visiting cells and
later the infirmary. Trial counsel made this point about the discrepancy
between the cellmate's appearance before and after extraction during
closing arguments. Appellant failed to demonstrate a reasonable
probability of a different outcome had trial counsel objected to the
photograph. Therefore, we conclude that the district court did not err in
denying this claim.
Third, appellant claimed that trial counsel failed to
adequately investigate evidence of appellant's innocence. Specifically,
appellant claimed that trial counsel should have investigated: (1)
Correctional Officer Gardner's testimony at the cellmate's preliminary
hearing that she punched and kicked the cellmate during his extraction
from the cell; and (2) Sergeant Bryant's testimony that the cellmate
SUPREME COURT
OF
NEVADA
3
(0) 1947A e
admitted he purchased and owned the drugs. Appellant failed to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced. Correctional Officer Gardener's testimony would not have
demonstrated innocence of battery by a prisoner given the video evidence
and the testimony of the correctional officers at trial. Further, appellant's
cellmate's admissions did not demonstrate appellant's innocence of
possession of a controlled substance by a prisoner as a controlled
substance was found in the cell shared by the two men, testimony
regarding a coded phone call to appellant's sister, the evidence of the
consumed controlled substance in a cup in the cell, and appellant's
admission to taking the controlled substance in a cup. Appellant failed to
demonstrate that there was a reasonable probability of a different
outcome had trial counsel further investigated these points. Therefore, we
conclude that the district court did not err in denying this claim.
Next, appellant claimed that he received ineffective assistance
of appellate counse1. 3 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). Appellate counsel is not required to raise every non-frivolous
issue on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). Rather,
3 To the extent that appellant raised any of the underlying claims
independent from his claim of ineffective assistance of appellate counsel,
those claims were waived as they could have been raised on direct appeal
and he failed to demonstrate good cause and prejudice for his failure to
raise the claims on direct appeal See NRS 34.810(1)(b).
SUPREME COURT
OF
NEVADA
4
(0) I997A 0400
appellate counsel will be most effective when every conceivable issue is not
raised on appeal. Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953
(1989). 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 nova. Lader v. Warden, 121 Nev.
682, 686, 120 P.3d 1164, 1166 (2005).
Appellant claimed that his appellate counsel was ineffective
for failing to argue that the prosecutor committed misconduct by
presenting a photograph of the victim despite the fact that he knew the
victim had been battered by staff. Appellant failed to demonstrate that
his counsel's performance was deficient or that he was prejudiced. As
discussed earlier, the jury was presented with the video adequately
showing the condition of appellant's cellmate before, during, and after
extraction. Appellant failed to demonstrate a reasonable probability of a
different outcome on appeal had this claim been raised. Therefore, we
conclude that the district court did not err in denying this claim.
Next, appellant claimed that his appellate counsel was
ineffective for failing to argue that the district court denied him the right
to confront and cross-examine the victim. Appellant failed to demonstrate
that his counsel's performance was deficient or that he was prejudiced.
Trial counsel sought to call appellant's cellmate as a witness but
appellant's cellmate invoked his privilege against self-incrimination.
Under these circumstances, appellant failed to demonstrate that this issue
had a reasonable likelihood of success on appeal. Therefore, we conclude
that the district court did not err in denying this claim.
SUPREME COURT
OF
NEVADA
5
(0) 1947n
Finally, appellant claimed that insufficient evidence was
presented at trial. Appellant previously litigated a claim of insufficient
evidence on direct appeal. See Manley v. State, Docket No. 59031 (Order
of Affirmance, April 12, 2013). The doctrine of the law of the case prevents
further litigation of this issue and cannot be avoided by a more detailed
and precisely focused argument. See Hall v. State, 91 Nev. 314, 535 P.2d
797 (1975). Therefore, we conclude that the district court did not err in
denying this claim. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/Sett J.
Hardest
.
J.
Douglas
J.
cc: Hon. Gary Fairman, District Judge
Charles Manley
Attorney General/Ely
White Pine County Clerk
SUPREME COURT
OF
NEVADA
6
(0) 1947A e