Rosales (Gary) v. Warden ( 2015 )

 application of the law to those facts de novo. Lader v. Warden, 121 Nev.
682, 686, 120 P.3d 1164, 1166 (2005).
First, Rosales contends that trial counsel was ineffective for
failing to move to suppress evidence on the basis that his mother's consent
to a search of their apartment was tainted by the police officers' illegal
entry into the apartment. He argues that evidence seized from the
apartment should have been suppressed as fruit of the poisonous tree
because the officers' warrantless entry into the apartment was not
justified by exigent circumstances and the subsequent consent did not
"cure" the illegal entry. We conclude that Rosales fails to demonstrate
that counsel's performance was deficient or that he was prejudiced. Even
if the entry into the apartment was impermissible under the Fourth
Amendment, the• mere fact of an illegal entry alone does not vitiate any
subsequent consent to a search. Rather, the issue of whether the consent
is valid depends on whether the consent was sufficiently attenuated from
the illegal entry. See Wong Sun v. United States, 371 U.S. 471, 487-88
(1963); United States v. Furrow, 229 F.3d 805, 813-14 (9th Cir. 2000),
overruled on other grounds by United States v. Johnson, 256 F.3d 895 (9th
Cir. 2001); Howe v. State, 112 Nev. 458, 469-70, 916 P.2d 153, 161-62
(1996). Rosales argues only that the illegal entry tainted the consent; he
fails to provide relevant authority or cogent argument as to whether the
consent was sufficiently attenuated so as to dissipate the taint of the
illegal entry. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6
(1987). Therefore, he fails to demonstrate that the district court erred in
concluding that the consent was valid despite the warrantless entry and
thus trial counsel was not ineffective.
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Second, Rosales argues that trial counsel was ineffective for
failing to move to suppress Rosales's statements to the police on the basis
that they were involuntary due to his mental illness. We conclude that
Rosales fails to demonstrate that trial counsel's performance was
deficient. His first trial counsel moved to suppress the statements based
on coercion and duress, and the trial court held a lengthy evidentiary
hearing before denying the motion. His second trial counsel argued to the
trial court that the statements should be suppressed as involuntary
because Rosales was suffering from mental illness at the time, and the
trial court found that the totality of the circumstances showed that the
statements were voluntary. Thus, the record belies Rosales's claim that
trial counsel failed to challenge the statements as involuntary due to
mental illness. Accordingly, we conclude that the district court did not err
in denying this claim.
Next, Rosales contends that the district court erred in denying
his claim of ineffective assistance of appellate counsel. 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 had 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, 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).
Rosales argues that appellate counsel was ineffective for
failing to argue that, based on the doctrine of "retroactive misjoinder,"
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Rosales was entitled to a new trial on the remaining counts following the
reversal of the criminal anarchy conviction on direct appeal. Rosales
relies on case law from the federal courts for the doctrine of "retroactive
misjoinder," which occurs when "joinder of multiple counts was proper
initially, but later developments—such as . . . an appellate court's reversal
of less than all convictions—render the initial joinder improper" and
results in "[p]rejudicial spillover from evidence used to obtain [the]
conviction subsequently reversed on appeal." United States v. Lazarenko,
564 F.3d 1026, 1043 (9th Cir. 2009) (internal quotations omitted). Rosales
contends that, because the graffiti that was used in support of the criminal
anarchy charge was highly inflammatory and would not have been
admissible if the case had been tried without the anarchy count, the
prejudicial spillover from that evidence required a new trial on the other
counts of aggravated stalking, attempted murder, and discharging a
firearm into a structure.
This court has never adopted or applied the doctrine of
"retroactive misjoinder." Thus, Rosales fails to demonstrate that appellate
counsel acted objectively unreasonably by not arguing for a new trial
based on a doctrine not recognized by this court. Further, Rosales fails to
demonstrate that a "retroactive misjoinder" argument would have had a
reasonable probability of success on appeal. Even assuming that this
court would have recognized the doctrine, this court concluded on direct
appeal that sufficient evidence supported the other convictions, Rosales
does not dispute that the jury was properly instructed on the use of the
evidence, see Hymon v. State, 121 Nev. 200, 211, 111 P.3d 1092, 1100
(2005) (presuming the jury follows its instructions), and Rosales fails to
demonstrate "prejudice so pervasive that a miscarriage of justice looms,"
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Lazarenko, 564 F.3d at 1043 (internal quotations omitted). Thus, we
conclude that the district court did not err in denying this claim.
For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED.
, J.
Saitta
J.
Gibbons
J.
cc: Hon. Patrick Flanagan, District Judge
Janet S. Bessemer
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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