88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505
(1984) (adopting the test in Strickland). Both components of the inquiry
must be shown, Strickland, 466 U.S. at 697, and the petitioner must
demonstrate the underlying facts by a preponderance of the evidence,
Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004).
Appellant claimed that counsel was ineffective for failing to
file a pretrial motion to suppress the victim's one-on-one identification of
appellant as unnecessarily suggestive. Appellant failed to demonstrate
deficiency or prejudice. Appellant has not disputed that he was the person
with whom the victim initially spoke and later confronted about the theft
of a ticket. Counsel was not objectively unreasonable in not moving to
suppress the identification where identity was not an issue in the case.
Further, even if the one-on-one identification were unnecessarily
suggestive, appellant failed to demonstrate that the motion would have
been successful, because the identification was nevertheless reliable where
the victim pointed to appellant almost immediately upon exiting the
restroom where the theft occurred, the victim was "100%" certain in the
subsequent one-on-one identification, and there was only approximately
one hour between the theft and the one-on-one identification. See Gehrke
v. State, 96 Nev. 581, 583-84, 613 P.2d 1028, 1029-30 (1980) (setting forth
the test for admitting pretrial identifications at trial). Moreover, even had
the victim's identification of appellant been suppressed, appellant
demonstrated no reasonable probability of a different outcome where
appellant's brother testified to observing him take the victim's property.
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We therefore conclude that the district court did not err in denying the
petition. Accordingly, we
ORDER the judgment of the district court AFFIRMED. 2
J.
CkU esrsr , J.
Parra
Saitta
cc: Hon. Kathleen E. Delaney, District Judge
Larry Dwayne Smith
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2The district court did not abuse its discretion in declining to appoint
post-conviction counsel. See NRS 34.750.
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