Agavo (Reynaldo) v. State ( 2013 )

 victim that appellant sexually abused her. Appellant fails to demonstrate
that his trial counsel's performance was deficient or that he was
prejudiced. Counsel sought introduction of this evidence at trial, the
district court concluded it was inadmissible, and this court affirmed that
decision on direct appeal. Agavo v. State, Docket No. 48444 (Order of
Affirmance, May 29, 2009). Appellant fails to demonstrate a reasonable
probability of a different outcome at trial had counsel raised additional
arguments pretrial regarding this evidence as appellant fails to
demonstrate the victim's allegations were false. See Abbott v. State, 122
Nev. 715, 733, 138 P.3d 462, 474 (2006) (citing Efrain M. v. State, 107 Nev.
947, 950, 823 P.2d 264, 265 (1991)). Therefore, the district court did not
err in denying this claim.
Second, appellant argues that his trial counsel was ineffective
for failing to hire an art expert to testify that appellant did not create a
drawing that the child victim stated appellant gave to her. Appellant
failed to demonstrate that his trial counsel's performance was deficient or
that he was prejudiced. Appellant testified at trial that he did not create
the drawing and appellant does not demonstrate that it was unreasonable
for counsel to fail to present further testimony of this nature. Appellant
fails to demonstrate a reasonable probability of a different outcome at trial
had counsel sought expert testimony regarding creation of the drawing.
Therefore, the district court did not err in denying this claim.
Next, appellant argues that the district court erred by
declining to reconsider its decision pursuant to NRCP 60(b) or allow him
to amend a denied claim pursuant to NRS 34.750. Appellant argues that
he had a misunderstanding regarding his burden to provide an expert
opinion for his claim regarding the creation of the drawing and that the
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district court should have allowed him to supplement his petition with a
report from an art expert. Even assuming, without deciding, that a
motion pursuant to NRCP 60(b) is applicable in a post-conviction
proceeding, see NRS 34.780(1) (stating that the Nevada Rules of Civil
Procedure apply to proceedings for post-conviction petitions for a writ of
habeas corpus to the extent they are not inconsistent with NRS Chapter
34); see also Klein v. Warden, 118 Nev. 305, 309-10, 43 P.3d 1029, 1032-33
(2002) (stating that civil tolling provisions related to the civil rules of
procedure do not apply to appeals from orders of the district court
resolving post-conviction habeas corpus petitions), appellant fails to
demonstrate that the district court abused its discretion in denying
appellant's motion. See Culinary & Hotel Serv. Workers Union v. Haugen,
76 Nev. 424, 430, 357 P.2d 113, 116 (1960). In addition, appellant fails to
demonstrate that the district court abused its discretion in declining to
allow appellant to amend his claims. Cf. State v. Powell, 122 Nev. 751,
758, 138 P.3d 453, 458 (2006) (stating that the district court has broad
authority to permit a petitioner to raise new claims in post-conviction
proceedings). Therefore, appellant fails to demonstrate that the district
court erred.
Having concluded that appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.
‘,„ „Let )43?.
Douglas Saitta
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Egi Rita
cc: Hon. Valorie J. Vega, District Judge
James C. Gallo, Jr.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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