Lions (Linkston) v. State ( 2013 )

 504, 505 (1984) (adopting the test in Strickland). Both components of the
inquiry must be shown. Strickland, 466 U.S. at 697.
First, appellant claimed counsel was ineffective for failing to
question the neighbors of the residence where the crime was committed
because the neighbors would have corroborated that squatters used it.
Appellant failed to demonstrate deficiency or prejudice. Appellant's claim
was belied by the record as counsel stated during an argument on a
motion for mistrial that a defense investigator did interview the
neighbors. See Hargrove v. State, 100 Nev. 498, 503, 686 P.2d 222, 225
(1984). Further, the testimony of the investigating officers corroborated
appellant's claim that squatters used the residence, and accordingly he
failed to demonstrate a reasonable probability of a different outcome had
the neighbors testified as appellant hoped. We therefore conclude that the
district court did not err in denying this claim.
Second, appellant claimed counsel was ineffective for failing to
object to the district court's characterization of the victim's identification
of appellant. Appellant failed to demonstrate deficiency or prejudice.
When asked to identify his attacker at trial, the victim testified that he
"couldn't say for sure" but identified appellant as "somebody who could fit"
his description of the attacker. The district court acknowledged this
identification, and the State clarified that it was with the understanding
that the jurors heard what the identification was. Appellant failed to
demonstrate a reasonable probability of a different outcome had counsel
objected to the district court's wording. We therefore conclude that the
district court did not err in denying this claim.
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Third, appellant claimed counsel was ineffective for failing to
play the audio recording of his voluntary statement to police because the
written transcript did not accurately reflect the interview. Appellant
failed to demonstrate deficiency or prejudice. Part of what appellant
claimed was missing was in fact testified to at trial by the interviewing
officer, and appellant did not claim that he told counsel of any
discrepancy. Further, in light of the physical evidence against him,
appellant failed to demonstrate a reasonable probability of a different
outcome had the jury heard the allegedly missing portions of the
interview. We therefore conclude that the district court did not err in
denying this claim.
Fourth, appellant claimed counsel was ineffective for failing to
call K. Moore as a witness. Appellant failed to demonstrate prejudice.
The State's expert recovered DNA from the area of the ligature that the
attacker would have to have held and concluded that appellant was the
major contributor with the victim being the minor contributor. In light of
this evidence as well as other, circumstantial evidence adduced at trial,
appellant failed to demonstrate a reasonable probability of a different
outcome had Moore, appellant's girlfriend at the time, testified that she
saw appellant buy the stolen vehicle from a third party. To the extent
appellant claimed that counsel's inaction was due to a conflict of interest,
his claim was unsupported by specific facts that, if true, would have
demonstrated that an actual conflict existed or that counsel's performance
was adversely affected. See Clark v. State, 108 Nev. 324, 326, 831 P.2d
1374, 1376 (1992); Hargrove, 100 Nev. at 502-03, 686 P.2d at 225. We
therefore conclude that the district court did not err in denying this claim.
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Fifth, appellant claimed counsel was ineffective for failing to
object when the State argued that appellant had changed the license
plates on the stolen vehicle he was driving to avoid being caught.
Appellant failed to demonstrate deficiency or prejudice. The State's
closing argument was a reasonable inference from the facts presented.
See Randolph v. State, 117 Nev. 970, 984, 36 P.3d 424, 433 (2001). We
therefore conclude that the district court did not err in denying this claim.
Sixth, appellant claimed counsel was ineffective for failing to
object to the State calling appellant a liar and attempting to shift the
burden of proof to appellant by arguing in closing that appellant first
mentioned having squatted at the residence—thereby explaining the
presence of his DNA on the ligature and t-shirt found at the scene—only
after he heard the officer testify that squatters used it and that appellant
was thus a liar. Appellant failed to demonstrate deficiency or prejudice.
The State did not call appellant a "liar" nor did it shift the burden of proof
to appellant. Rather, the State made a permissible comment on its view of
what the evidence showed. See id. Moreover, the jury was made aware by
the officer's testimony on cross-examination that appellant had not been
told during the interview where the attack occurred. We therefore
conclude that the district court did not err in denying this claim.
Seventh, appellant claimed counsel was ineffective for failing
to propose jury instructions for lesser-included offenses to robbery and
grand larceny auto. Appellant failed to demonstrate prejudice. Even if
possession of stolen property and/or the stolen vehicle were lesser-included
offenses of robbery and grand larceny auto, respectively, the jury found
appellant guilty beyond a reasonable doubt of the greater offenses.
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Accordingly, appellant failed to demonstrate a reasonable probability of a
different outcome had the jury received instructions on lesser offenses.
We therefore conclude that the district court did not err in denying these
claims.
Appellant also raised several claims 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 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). Both components of the inquiry must be shown. Strickland, 466
U.S. at 697.
First, appellant claimed counsel was ineffective for failing to
raise a violation of Brady v. Maryland, 373 U.S. 83 (1963), where the
testimony of the State's DNA expert differed from her written report.
Appellant failed to demonstrate deficiency or prejudice because his claim
was belied by the record. Appellant acknowledged that the expert's report
said there were "at least" two contributors of DNA to the ligature, which
necessarily admits the possibility of more than two contributors. Further,
although appellant claimed that the expert testified that there were in fact
five contributors of DNA, the expert testified in accordance with her report
that "two numbers" at a DNA reference point would indicate one DNA
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contributor and that at a couple of the reference points, there were "five
numbers," indicating "at least two" contributors. The expert further
testified that she could not identify who the contributors were beyond
appellant and the victim, but she did not state a reason. We therefore
conclude that the district court did not err in denying this claim.
Second, appellant claimed counsel was ineffective for not
arguing the officers' failure to gather evidence where they did not write
down the names and contact information of the neighbors they
interviewed. Appellant failed to demonstrate deficiency or prejudice.
Appellant did not demonstrate that the missing "evidence was material,
i.e., that there is a reasonable probability that the result of the
proceedings would have been different if the evidence had been available."
Gordon v. State, 121 Nev. 504, 509-10, 117 P.3d 214, 218 (2005). Rather,
in holding that the State did not violate Brady when it failed to disclose
the neighbor's contact information, this court concluded on direct appeal
that "there was no possibility" of the information having affected the
outcome of trial. Lions v. State, Docket No. 58108 (Order of Affirmance,
November 18, 2011). Accordingly, appellant failed to demonstrate a
reasonable probability of success on appeal. We therefore conclude that
the district court did not err in denying this claim.
Third, appellant claimed counsel was ineffective for failing to
challenge the improper admission of other bad act evidence—the
attempted use of the victim's credit cards to wire money to appellant—
where no pretrial hearing was conducted or limiting jury instruction was
given. Appellant failed to demonstrate deficiency or prejudice. Although
the district court erred in admitting the evidence without first conducting
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an evidentiary hearing, the evidence was relevant pursuant to NRS
48.045(2) as it tended to establish the identity of the attacker. See Qualls
v. State, 114 Nev. 900, 902-03, 961 P.2d 765, 766-67 (1998). Moreover, in
light of the physical evidence against appellant, any failure to instruct the
jury on the limited use of the evidence would have been harmless. See id.
at 904, o61 P.2d at 767. Accordingly, appellant failed to demonstrate a
reasonable probability of success on appeal had counsel raised the issue.
We therefore conclude that the district court did not err in denying this
claim.
Appellant's remaining claims could have been raised in prior
proceedings and were thus procedurally barred absent a demonstration of
cause for the delay and undue prejudice. See NRS 34.810(1)(b)(2).
Appellant failed to allege any cause to excuse the bar to his claims alleging
juror misconduct or challenging this court's application of Brady on direct
appeal, the constitutionality of the Nevada Revised Statutes in general
and the robbery and deadly-weapon-enhancement statutes in particular,
and the admission of his attempted use of the stolen credit cards. Further,
appellant acknowledged that his claims challenging the jury instruction
on flight, the State's failure to gather evidence, and the admission of the
license plate evidence were raised on direct appeal. These claims were
therefore barred by the doctrine of the law of the case. See Hall v. State,
91 Nev. 314, 316, 535 P.2d 797, 799 (1975). Moreover, appellant's claim
that he was re-raising them in the instant petition to exhaust state
remedies did not demonstrate good cause. See Hathaway v. State, 119
Nev. 248, 252-53, 71 P.3d 503, 506 (2003); Colley v. State, 105 Nev. 235,
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236, 773 P.2d 1229, 1230 (1989). We therefore conclude that the district
court did not err in denying these claims.
For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED. 2
, J.
Hardesty
J.
Parraguirre
J.
cc: Hon. Doug Smith, District Judge
Linkston Ashley Lions
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2 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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AMIEWfn