State v. Elmajzoub (Said) ( 2015 )

 sentencing hearing on the battery conviction, and Elmajzoub appeals from
the portion of the order that denies the rest of his claims.
NRS 200.400
The State argues that the district court erred by concluding
that trial and appellate counsel were ineffective relative to Elmajzoub's
statutory right to jury sentencing pursuant to NRS 200.400(4)(a). The
district court determined that trial counsel was deficient because he did
not know of or inform Elmajzoub of his statutory right to jury sentencing
on the battery conviction and that Elmajzoub was prejudiced because he
received the more severe of the two sentencing alternatives. The district
court also determined that appellate counsel was ineffective for failing to
challenge the deprivation of this right on appeal.
To prove ineffective assistance of trial 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 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 the test in Strickland). To
prove ineffective assistance of appellate counsel, a petitioner must
demonstrate that counsel's performance fell below an objective standard of
reasonableness and 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). 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
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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).
The district court's factual findings are supported by
substantial evidence and are not clearly wrong, and we conclude that the
State has not demonstrated that the district court erred as a matter of
law.' See Colley v. State, 98 Nev. 14, 18, 639 P.2d 530, 533 (1982)
(examining prejudice in the context of NRS 200.400(4)(a)); see also Colley
v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986) (same).
The State argues that the district court erred because the
plain language of the statute does not allow for jury sentencing and
because the legislative history of the statute demonstrates that it was the
Legislature's intent to have the district court sentence a person convicted
under NRS 200.400(4)(a). NRS 200.400(4)(a) provides that a person
convicted of battery with the intent to commit sexual assault resulting in
substantial bodily harm to the victim shall be punished by imprisonment
for either life without the possibility of parole or life with the possibility of
1 Whilethe district court determined that Elmajzoub had to waive
his right to jury sentencing on the record, we are unaware of any such
requirement; rather, trial counsel may waive some rights on behalf of a
defendant as part of a trial tactic or strategy. See Wilson v. Gray, 345 F.2d
282, 286 (9th Cir. 1965). Regardless, trial counsel did not strategically
waive this right as he testified that he did not read the statute to allow for
jury sentencing.
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parole after a minimum of 10 years has been served "as determined by the
verdict of the jury, or the judgment of the court if there is no jury." 2 We
disagree with the State's contention that this language is unclear or
ambiguous. 3 The statute provides for a jury to sentence a person convicted
of the offense unless there is no jury. As the language is clear on its face,
we need not look beyond the statute to determine its meaning. See
Goudge v. State, 128 Nev., Adv. Op. 52, 287 P.3d 301, 303 (2012); Sonia F.
v. Eighth Judicial Din. Court, 125 Nev. 495, 499, 215 P.3d 705, 707
(2009). 4
On cross-appeal, Elmajzoub argues that the district court's
remedy of reversing his sentence for the battery count and remanding for
a new sentencing hearing is inappropriate as the statute mandates he be
sentenced by the jury that determines his guilt. We are not convinced by
2 We note that MRS 200.400(4)(a) was recently amended to delete the
quoted language A.B. 49 § 9, 78th Leg. (Nev. 2015). This amendment
applies to offenses committed on or after October 1, 2015. Id. § 27(3).
3 We further disagree with the State's contentions that the lack of
specificity in the statute regarding the presentation of aggravating or
mitigating evidence or the procedure for waiving jury sentencing nullifies
this plain language.
4We express no opinion as to the procedures for the new sentencing
hearing. In the absence of specific guidance from the Legislature, it is
within the district court's discretion to determine what evidence is
relevant and admissible to the jury's sentencing determination. See
generally Atkins v. State, 112 Nev. 1122, 1127, 923 P.3d 1119, 1123 (1996)
("Trial courts have considerable discretion in determining the relevance
and admissibility of evidence."), overruled on other grounds by McConnell
v. State, 120 Nev. 1043, 102 P.3d 606 (2004).
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Elmajzoub's arguments and conclude that the district court's resolution of
this claim should be affirmed. Cf. Dixon v. State, 83 Nev. 120, 122, 424
P.2d 100, 101 (1967) (holding that the "fflailure to properly sentence does
not render the entire trial and proceeding a nullity" (internal quotation
marks omitted)).
Ineffective Assistance of Counsel
On cross-appeal, Elmajzoub argues that the district court
erred in rejecting numerous claims of ineffective assistance of trial
counsel, including counsel's failure to (1) prepare for trial/sentencing; (2)
consider, locate, or investigate "Billy"; (3) effectively cross-examine key
witnesses; (4) move for a mistrial or to set aside the verdict; (5) secure an
unbiased or impartial jury; (6) object to inadmissible evidence; (7) present
any defense witnesses, including those who could rebut the theory of
flight; (8) object to the use of Elmajzoub's picture with the word "guilty"
superimposed on it in closing argument; (9) object to obvious prosecutorial
misconduct as well as surprise and improper identification by the
witnesses; (10) obtain and review the casino's surveillance and documents;
(11) test and/or discover whether the victim's pants were retested by the
defense expert; (12) ensure a proper record of proceedings; and (13) file
pretrial and post-verdict motions. Ehnajzoub also claims that trial counsel
was ineffective in his advice relative to taking the stand, the intoxication
defense, and writing a letter to the victim prior to sentencing. He also
argues that trial counsel helped the State to convict him. Elmajzoub fails
to demonstrate that trial counsel was deficient or that there was a
reasonable probability of a different outcome given the overwhelming
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evidence against him. 5 Therefore, we conclude the district court did not
err in denying these claims.
Elmajzoub also argues that he received ineffective assistance
of appellate counsel because counsel failed to appeal numerous
meritorious issues, including sufficiency of the evidence and cumulative
error, to petition this court for rehearing or en banc review despite four
allegedly faulty assumptions in our resolution of the direct appeal, and to
raise on appeal any of the above-mentioned issues of ineffective assistance
of trial counsel. The district court concluded that Elmajzoub failed to set
forth any appellate issues that would have had a reasonable probability of
success. Based upon our review of the record, we conclude the district
court did not err in denying these claims.
NRS 34.810
Elmajzoub argues that the district court erred by summarily
dismissing numerous independent claims pursuant to NRS 34.810(1)(b)(2)
(waiver of claims that could have been raised on direct appeal), including:
(1) he was denied his right to due process due to the trial court's failure to
provide him with an impartial tribunal free of juror bias or prejudicial
atmosphere; (2) he was denied his due process right due to the State's
failure to disclose material exculpatory and/or impeachment evidence,
5 We note that Elmajzoub failed to include surveillance videotape
introduced at trial depicting his movements at the casino on the night of
the crime. See NRAP 30(d); Thomas v. State, 120 Nev. 37, 43 & n.4, 83
P.3d 818, 822 & n.4 (2004) (stating that appellant is ultimately
responsible for providing this court with portions of the record necessary
to resolve his claims on appeal).
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misleading the jury with purported evidence not supported by the facts or
testimony, and other acts of prosecutorial misconduct; (3) there was
insufficient evidence to support his convictions; (4) his sentence
constituted cruel and unusual punishment; (5) his bail was unreasonable;
(6) the police used suggestive identification; (7) he was denied his right to
a fair trial based upon alleged misconduct of the State; (8) the trial court
erred in admitting blood evidence; (9) his sentence was illegal because the
jury was supposed to impose it; and (10) he is factually innocent. We
conclude the district court did not err by dismissing these claims as
Elmajzoub failed to demonstrate good cause or actual prejudice for failure
to raise these claims on direct appeal. See Bejarano v. State, 122 Nev.
1066, 1073, 146 P.3d 265, 270 (2006).
Additionally, Elmajzoub claims that the district court abused
its discretion by denying his petition because of rampant prosecutorial
misconduct. The district court summarily dismissed his claims of
prosecutorial misconduct because the claims could have been raised on
direct appeal. See NRS 34.810(1)(b)(2). While Elmajzoub argues that he
was unable to show good cause and prejudice for the failure to raise these
claims on direct appeal because the district court did not grant an
evidentiary hearing, this argument is without merit. Elmajzoub was
required to demonstrate good cause on the face of the petition, see State v.
Haberstroh, 119 Nev. 173, 180-81, 69 P.3d 676, 681-82 (2003), and he
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failed to meet this burden. Accordingly, we conclude the district court did
not err by denying these claims. 6
Postconviction Proceedings
Elmajzoub argues that the district court committed numerous
errors during the postconviction proceedings, including: (1) relying upon,
and actively seeking before an evidentiary hearing, findings of fact and
conclusions of law from the State; (2) requesting the State to draft an
order even though it was not the prevailing party; (3) not providing
sufficient direction to enable the State to draft the order; (4) failing to
allow discovery for the evidentiary hearing; (5) failing to enforce
subpoenas for trial and appellate counsel with regard to counsel bringing
substantive documents to the evidentiary hearing; (6) failing to allow
evidence of prosecutorial misconduct at the evidentiary hearing as well as
evidence of the remainder of his claims that were not based on ineffective
assistance of counsel; (7) failing to promptly examine the petition; and (8)
relying on the law-of-the-case doctrine. 7 We have examined each of
Elmajzoub's contentions and conclude that no relief is warranted.
°We are concerned with the State's comment during closing
argument suggesting what type of person would walk a woman home, get
jumped, and walk away without any follow up; however, we conclude that
Elmajzoub fails to demonstrate a fundamental miscarriage of justice
sufficient to excuse the procedural default that precludes consideration of
this issue on its merits. See Bejarano, 122 Nev. at 1073, 146 P.3d at 270.
7 We agree with Elmajzoub that some of his claims were not barred
by the doctrine of law of the case; however, as we address these claims in
this order, we conclude they lack merit and no relief is warranted. See
Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970).
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Elmajzoub also claims the district court arbitrarily revoked
his postconviction counsel's pro hac vice admission. He argues that the
district court effectively created a right to counsel by appointing
replacement counsel, that the violation of his right to counsel of choice was
a structural defect, and that he was prejudiced because, with replacement
counsel, he did not present all the desired evidence and testimony at the
evidentiary hearing. There is no constitutional or statutory right to
postconviction counsel and no right to the effective assistance of
postconviction counsel in non-capital cases in Nevada. See Brown v.
McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 870 (2014). The argument
that the district court created a right to counsel is unpersuasive. The
district court may appoint postconviction counsel pursuant to NRS 34.750,
but that discretion does not confer a right upon the petitioner.
Additionally, Elmajzoub fails to demonstrate how having replacement
counsel precluded him from presenting evidence and testimony at the
evidentiary hearing. As Elmajzoub did not have a right to counsel, let
alone counsel of choice, he fails to demonstrate the district court erred.
Furthermore, we conclude that the district court did not abuse its
discretion by revoking counsel's pro hac vice admission. See SCR 42(6).
Brady
Elmajzoub claims that the State withheld exculpatory and/or
impeachment evidence, in violation of Brady v. Maryland, 373 U.S. 83(1963). Elmajzoub has the burden of pleading and proving specific facts
that demonstrate both good cause and actual prejudice for his failure to
present this claim in earlier proceedings. NRS 34.810(1)(b)(2), (3); State v.
Huebler, 128 Nev., Adv. Op. 19, 275 P.3d 91, 95 (2012) (recognizing that a
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demonstration that the State withheld the evidence and that prejudice
ensued will satisfy the good cause and prejudice requirements to overcome
the procedural bar). Given Elmajzoub's testimony at trial and the
overwhelming evidence of his guilt, we conclude that Elmajzoub fails to
demonstrate prejudice, see Mazzan v. Warden. 116 Nev. 48, 66-67, 993
P.2d 25, 36-37 (2000) (analyzing the prejudice prong of a Brady claim),
and therefore is not entitled to relief. 8
Cumulative Error
Elmajzoub argues that cumulative error entitles him to relief.
To the extent he argues cumulative error as an independent ground for
relief, we conclude that he fails to demonstrate good cause and prejudice,
or a fundamental miscarriage of justice, sufficient to overcome the
procedural default of NRS 34.810(1)(b)(2). To the extent he argues that
the cumulative errors of both trial and appellate counsel warrant relief,
this court has never determined whether multiple deficiencies in counsel's
performance can be considered cumulatively for purposes of the prejudice
prong of Strickland. See McConnell v. State, 125 Nev. 243, 259, n.17, 212
P.3d 307, 318, n.17 (2009). However, even assuming that counsel's
deficiencies may be cumulated, see Harris by and through Ramseyer v.
Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (concluding that prejudice may
result from cumulative effect of multiple counsel deficiencies); State v.
Thiel, 665 N.W.2d 305, 322 (Wis. 2003) (concluding that multiple incidents
of deficient performance may be aggregated in determining prejudice
8 Wereject the argument that the State conceded any argument or
claim raised by Elmajzoub.
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under Strickland), Elmajzoub has only established that counsel were
deficient for not challenging the denial of his right to jury sentencing
pursuant to NRS 200.400(4)(a), so there is nothing to cumulate. We
conclude that Elmajzoub is not entitled to relief on this ground.
Having considered the parties' arguments and concluded that
no relief is warranted, we
ORDER the judgment of the district court AFFIRMED. 9
Gibbons
'u p
Pickering
cc: Eighth Judicial District Court Dept. 15
Attorney General/Carson City
Clark County District Attorney
Kajioka & Bloomfield
Jihad M. Smaili
Eighth District Court Clerk
9 We deny Elmajzoub's request for oral argument.
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