Fernandez (Rene) v. State ( 2013 )

 (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).
First, appellant claimed that his counsel was ineffective for
allowing the State to voluntarily dismiss the charges without prejudice.
Appellant failed to demonstrate that his trial counsel's performance was
deficient or that he was prejudiced. The State properly dismissed the
charges without prejudice prior to appellant's preliminary hearing. See
NRS 174.085(5). Appellant failed to demonstrate a reasonable probability
of a different outcome had counsel argued the initial dismissal of the
charges was improper. Therefore, the district court did not err in denying
this claim.
Second, appellant claimed that his counsel was ineffective for
failing to argue that he did not receive proper notice of the grand jury
proceedings. Appellant failed to demonstrate that his counsel's
performance was deficient or that he was prejudiced. Appellant's second
counsel filed a pretrial petition for a writ of habeas corpus, arguing that
appellant was not properly notified of the grand jury proceedings. Given
the overwhelming evidence of appellant's guilt presented at trial, he failed
to demonstrate a reasonable probability of a different outcome had counsel
raised further arguments regarding the grand jury proceedings. See
United States v. Mechanik, 475 U.S. 66, 70 (1986); Lisle v. State, 113 Nev.
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540, 551-52, 937 P.2d 473, 480 (1997). Therefore, the district court did not
err in denying this claim. 2
Third, appellant claimed that his trial counsel had a conflict of
interest because counsel conceded his guilt for two counts during
appellant's first trial. Appellant failed to demonstrate that his counsel
had a conflict of interest. Appellant's first trial ended in a mistrial and
counsel did not concede appellant's guilt during the second trial. Under
these circumstances, appellant failed to demonstrate an actual conflict of
interest or that his counsel had divided loyalties. See Clark v. State, 108
Nev. 324, 326, 831 P.2d 1374, 1376 (1992). Moreover, appellant did not
demonstrate that the attorney-client relationship had collapsed. See
Young v. State, 120 Nev. 963, 969, 102 P.3d 572, 576 (2004). Therefore,
the district court did not err in denying this claim.
Fourth, appellant claimed that his trial counsel was ineffective
for failing to argue that the Double Jeopardy Clause barred the second
trial after the first trial was declared a mistrial. Appellant failed to
demonstrate that his counsel's performance was deficient or that he was
prejudiced. After a mistrial, the retrial will not be barred by double
jeopardy if the "mistrial was dictated by manifest necessity or the ends of
justice" and, "in the presence of manifest necessity, whether the
2To the extent appellant claimed that his initial counsel was
ineffective for failing to notify him of the grand jury proceedings or for
failing to argue that the notice of the grand jury hearing was inadequate,
appellant failed to demonstrate he was prejudiced given the overwhelming
evidence of his guilt for the charged crimes. See id.SUPREME COURT
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prosecutor is responsible for the circumstances which necessitated
declaration of a mistrial." Beck v. Seventh Judicial Dist. Ct., 113 Nev. 624,
627, 939 P.2d 1059, 1060 (1997) (quotations omitted). Here, the district
court declared a mistrial because appellant's counsel conceded appellant's
guilt to two counts without first obtaining appellant's consent. Under
these circumstances, appellant was properly retried after his first trial
was declared to be a mistrial. See NRS 174.085(4). Therefore, the district
court did not err in denying this claim.
Fifth, appellant claimed that his trial counsel was ineffective
for failing to cross-examine the State's expert witnesses. Appellant failed
to demonstrate that he was prejudiced. The State's experts testified
regarding their testing of the cocaine and additional evidence discovered
in the vehicle. Given the nature of the expert testimony and the
overwhelming evidence of appellant's guilt, appellant failed to
demonstrate a reasonable probability of a different outcome at trial had
counsel cross-examined these experts. Therefore, the district court did not
err in denying this claim.
Sixth, appellant claimed that his trial counsel was ineffective
for failing to argue that there was insufficient evidence for his convictions
because they were based solely on the testimony of his accomplice.
Appellant failed to demonstrate that his trial counsel's performance was
deficient or that he was prejudiced. The evidence necessary to corroborate
accomplice testimony need not, by itself, be sufficient to establish guilt.
Ramirez-Garza v. State, 108 Nev. 376, 379, 832 P.2d 392, 393 (1992). "If
the evidence, independent of the accomplice testimony, tends to connect
the accused with the commission of the offense, then the corroboration
4
requirement contained in NRS 175.291 is satisfied." Id.; see also
Heglemeier v. State, 111 Nev. 1244, 1250-51, 903 P.2d 799, 803-04 (1995);
Austin v. State, 87 Nev. 578, 585, 491 P.2d 724, 728-29 (1971) (observing
that in determining if sufficient evidence corroborates accomplice's
testimony, that testimony must be eliminated and remaining evidence
examined to ascertain if there is inculpatory evidence tending to connect
defendant to offense). Appellant was discovered driving a vehicle that
contained approximately 10 pounds of cocaine, which was sufficient to
corroborate his accomplice's testimony. In addition, all of the evidence
produced at trial provided overwhelming evidence of appellant's guilt.
Therefore, the district court did not err in denying this claim. 3
Seventh, appellant claimed that his trial counsel was
ineffective for failing to discuss the evidence or trial strategy with him.
Appellant failed to demonstrate that he was prejudiced. Given the
overwhelming evidence of appellant's guilt presented at trial, appellant
failed to demonstrate a reasonable probability of a different outcome at
3 Appellant also appears to assert that his counsel was ineffective for
failing to argue that the jury should have determined whether his
codefendant was an accomplice to the crime. As appellant's codefendant
agreed to enter a guilty plea prior to the trial, the jury was not charged
with determining the codefendant's guilt for these crimes. Moreover, the
evidence clearly established that appellant and his codefendant both
participated in the purchase and transfer of a large quantity of cocaine,
demonstrating that they were accomplices. See Austin, 87 Nev. at 587,
491 P.2d at 730; NRS 175.291(2).
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trial had counsel discussed the evidence or trial strategy with appellant.
Therefore, the district court did not err in denying this claim.
Eighth, appellant claimed that his counsel knew that his
codefendant both committed perjury while testifying against appellant
and was paid by the government to be an informant, yet counsel did not
inform the jury of these issues. Appellant failed to demonstrate that his
trial counsel's performance was deficient or that he was prejudiced.
Appellant failed to demonstrate that his codefendant committed perjury
and he failed to demonstrate reasonable counsel would have argued that
the codefendant committed perjury. Counsel cross-examined the
codefendant regarding his plea deal with the State and his motivations for
testifying against appellant. Appellant failed to demonstrate a reasonable
probability of a different outcome at trial had counsel questioned the
codefendant further regarding his potential biases. Therefore, the district
court did not err in denying this claim.
Ninth, appellant claimed that his trial counsel was ineffective
for failing to argue that cocaine is only a Schedule II drug, and therefore,
his convictions were improper. Appellant failed to demonstrate deficiency
or prejudice for this claim because cocaine is a Schedule I drug. See NRS
453.146 (stating that State Board of Pharmacy has the duty to classify
controlled substances); NAC 453.510(8) (classifying cocaine as a Schedule I
controlled substance). Therefore, the district court did not err in denying
this claim.
Next, appellant claimed that his appellate counsel was
ineffective. To prove ineffective assistance of appellate counsel, a
petitioner must demonstrate that counsel's performance was deficient in
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that it fell below an objective standard of reasonableness, and resulting
prejudice such that the omitted issue would have 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
v. Washington, 466 U.S. 668, 697 (1984). 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).
First, appellant claimed that his appellate counsel had a
conflict of interest because counsel did not raise available claims on appeal
and did not contact appellant during the direct appeal proceedings. These
issues do not demonstrate an actual conflict of interest or that his counsel
had divided loyalties. See Clark, 108 Nev. at 326, 831 P.2d at 1376.
Therefore, the district court did not err in denying this claim.
Second, appellant claimed that his appellate counsel should
have argued his convictions were improper because cocaine is a Schedule
II drug. Appellant failed to demonstrate either deficiency or prejudice for
this claim because, as discussed previously, cocaine is classified as a
Schedule I drug. See NRS 453.146; NAC 453.510(8). Therefore, the
district court did not err in denying this claim.
Third, appellant claimed that his appellate counsel was
ineffective for failing to argue that the Double Jeopardy Clause barred the
second trial after the first trial was declared a mistrial. Appellant failed
to demonstrate that his counsel's performance was deficient or that he was
prejudiced. As discussed previously, appellant failed to demonstrate that
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the Double Jeopardy Clause barred the second trial. See Beck, 113 Nev. at
627, 939 P.2d at 1060; NRS 174.085(4). Therefore, the district court did
not err in denying this claim.
Having concluded appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED. 4
OC4,•,•CA , •
Hrnsty
b.ot
Parraguirre
J.
cc: Hon. Doug Smith, District Judge
Rene F. Fernandez
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
4 We have reviewed all documents that appellant has submitted in
proper person 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 attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
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