Nev. 980, 988, 923 P.2d 1102, 1107 (1996). Both components of the
inquiry must be shown. Strickland v. Washington, 466 U.S. 668, 697
(1984). 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 novo. Lader v. Warden, 121 Nev.
682, 686, 120 P.3d 1164, 1166 (2005). An evidentiary hearing is required
if the petitioner presents claims supported by specific facts that are not
belied the record, which if true, would entitle the petitioner to relief. See
Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984).
Appellant argues that trial counsel was ineffective for failing
to obtain independent DNA testing of the evidence in light of the
subsequent firing of the technician who processed the evidence in his case.
Appellant fails to demonstrate that his trial counsel was ineffective in
regards to the DNA testing. Trial counsel could not have challenged the
results of the DNA testing before the plea based upon the firing of the
technician approximately one year after the conviction. And appellant
fails to demonstrate that trial counsel should otherwise have had reason
to independently test the DNA evidence. Appellant further fails to
demonstrate by a reasonable probability that he would not have entered a
plea and would have gone to trial absent trial counsel's failure to seek
independent testing of the DNA test results in light of the benefit he
received by entry of his plea and the evidence against him, including his
own confession and the victim's testimony at the grand jury proceedings,
which included her identification of appellant in a photograph. Therefore,
the district court did not err in denying this claim without conducting an
evidentiary hearing.
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Next, appellant argues that the district court erred in
permitting the State to retest the sample when the district court granted
his motion for independent DNA testing. We conclude that appellant fails
to demonstrate any error. First, the district court did not grant his motion
for independent testing, but rather requested further proceedings on the
motion to delve into the chronology of events and the involvement of the
fired technician in this case. Second, an independent review was
undertaken. At a subsequent hearing, an affidavit from the Director of
Laboratory Services for the Las Vegas Metropolitan Police Department
was presented averring that the "DNA case file for [the instant case] was
independently reviewed by an external, unbiased third party entity and
the DNA results previously rendered by [the former technician] were
found to be supported by the data and case notes generated at the time of
the original testing." In light of appellant's failure to demonstrate that his
trial counsel was ineffective as set forth above, without any consideration
of the subsequent affidavit, appellant fails to demonstrate any error in
regards to his motion. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Hardesty
Douglas
ga° J.
J.
Cherry 1124(
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cc: Hon. Rob Bare, District Judge
Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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