Reed, II (Max) v. Warden

IN THE SUPREME COURT OF THE STATE OF NEVADA

MAX REED, II, No. 67842
Appellant,
vs.
RENEE BAKER, WARDEN, ELY STATE FILED
PRISON, APR 1 4 2016
Respondent.
TRACIE K, LINDRMAN
CLERK OFSUPREME
. . COURT
BY c..esc
DEPUTY CLER
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order denying
appellant's postconviction petition for a writ of habeas corpus. Second
Judicial District Court, Washoe County; Janet J. Berry, Judge.
Appellant Max Reed, II, represented himself at trial and was
convicted of murder with the use of a deadly weapon. Reed was sentenced
to two consecutive terms of 20 to 50 years in prison. This court affirmed
his judgment and sentence on appeal. Reed v. State, Docket No. 62177
(Order of Affirmance, July 30, 2014). On September 16, 2014, Reed filed a
pro se petition for postconviction relief, which the district court denied.'
This appeal followed.

'The district court denied the following claims on the grounds that
they could have been, or were, raised on direct appeal and were therefore
waived: (1) the State failed to prove intent, (2) the State failed to turn over
evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and failed to
collect/preserve evidence, (3) the trial judge was biased and issued
erroneous legal rulings, (4) insufficient evidence was presented at the
preliminary hearing, (5) Reed was denied his right to self-representation,
(6) insufficient evidence supports the conviction, (7) the racial makeup of
the jury was unconstitutional, and (8) Reed was denied his right to
compulsory process. See NRS 34.810(1) (b); see also Franklin v. State, 110
Nev. 750, 752, 877 P.2d 1058, 1059 (1994) (holding that "claims that are
appropriate for a direct appeal must be pursued on direct appeal, or they
SUPREME COURT will be considered waived in subsequent proceedings"), overruled on other
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In his petition, Reed contended that the attorneys who
represented him before he assumed his own representation were
ineffective. 2 To prove ineffective assistance of counsel, a petitioner must
demonstrate that counsel's performance fell below an objective standard of
reasonableness and 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 Strickland). We
give deference to the district court's factual findings if supported by
substantial evidence 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 warranted where a petitioner raises a
claim supported by specific facts that are not belied by the record and that,
if true, would entitle him to relief. Hathaway v. State, 119 Nev. 248, 255,
71 P.3d 503, 508 (2003). An evidentiary hearing is not warranted,

. . . continued
grounds by Thomas v. State, 115 Nev. 148, 979 P.2d 222 (1999). We agree
and conclude that the district court did not err by denying these claims
without conducting an evidentiary hearing.

2 Reed also contended that standby counsel and appellate counsel
were ineffective. We reject Reed's standby counsel claims because he had
no right to the effective-assistance of standby counsel. See, e.g., McKague
v. Whitley, 112 Nev. 159, 164, 912 P.2d 255, 258 (1996) (explaining that a
defendant only has a right to the effective assistance of counsel where
counsel is constitutionally or statutorily required); United States v.
Cochrane, 985 F.2d 1027, 1029 (9th Cir. 1993) (holding that a petitioner
cannot challenge the performance of standby counsel because he has no
right to standby counsel). We decline to consider Reed's appellate counsel
claims because we conclude that they were not adequately raised. See
Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).

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however, where an appellant presents bare or naked claims. See Hargrove
v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984).
First, Reed contended that counsel Richard Davies 3 was
ineffective because he did not obtain discovery, investigate, or challenge
the evidence presented at the preliminary hearing. The district court
determined that Reed failed to demonstrate that Davies was ineffective.
We agree because Reed failed to demonstrate that the State would have
been unable to muster slight or marginal evidence had counsel performed
differently or that challenging the evidence presented would have been
successful. See Sheriff v. Hodes, 96 Nev. 184, 186, 606 P.2d 178, 180
(1980). Second, Reed contended that counsel Scott Edwards 4 was
ineffective because he failed to investigate and perform other tasks. Reed
failed to demonstrate that Edwards was ineffective because Reed assumed
his own representation almost two years before trial and does not explain
why he could not have performed these tasks, or how he was prejudiced.
We conclude that the district court did not err by denying this claim
without conducting an evidentiary hearing.
Next, Reed contended that he was prevented from filing a
meaningful postconviction petition due to the restrictions placed upon him
as an inmate. The district court denied this claim because he failed to
allege sufficient facts suggesting an actual injury. We agree. See Lewis v.
Casey, 518 U.S. 343,351 (1996) (explaining that an inmate contesting his
access to the courts must demonstrate specific examples of injury). Reed

3 Davies represented Reed at the preliminary hearing.

4 Edwards
represented Reed after the preliminary hearing until Reed
assumed his own representation.

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failed to identify any specific deficiencies in his petition which resulted
from the alleged restrictions. We note that the petition was filed well
before the relevant deadline and is replete with citations to authority and
facts in the record. We conclude that the district court did not err by
denying this claim without conducting an evidentiary hearing.
Finally, Reed's claim that cumulative error warrants relief
lacks merit because there were no errors to cumulate.
Having concluded that no relief is warranted, we
ORDER the judgment of the district court AFFIRMED. 5

cc: Hon. Janet J. Berry, District Judge
Max Reed, II
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk

5 We have reviewed all documents that appellant has submitted 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
raised any claims or facts in those documents that were not precisely
presented in the proceedings below, we have declined to consider them in
the first instance.

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