Garner (Edward) v. State ( 2013 )

 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). 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). To warrant an evidentiary hearing, a petitioner
must raise claims that are supported by specific factual allegations that
are not belied by the record and, if true, would entitle him to relief.
Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).
First, appellant claimed that his trial counsel were ineffective
for failing to object when the district court refused to strike two jurors for
cause. Appellant failed to demonstrate that his counsel's performance was
deficient or that he was prejudiced. Counsel moved to strike the two
jurors for cause and the request was denied by the district court.
Appellant failed to demonstrate that reasonable counsel would have made
additional requests to strike those jurors for cause. Appellant also failed
to demonstrate a reasonable probability of a different outcome at trial had
counsel performed additional actions with respect to the two jurors as this
court determined on direct appeal that the district court did not err in
declining to remove the two jurors for cause. Garner v. State, Docket No.
56989 (Order of Affirmance, September 13, 2012). Therefore, the district
court did not err in denying this claim.
Second, appellant claimed that trial counsel should have
argued there was insufficient evidence to convict him of the use of a deadly
weapon during the crime. Appellant failed to demonstrate that his trial
counsel's performance was deficient or that he was prejudiced. Counsel
argued that a BB gun should not be considered a deadly weapon.
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However, appellant's BB gun met the statutory definition of a deadly
weapon. See NRS 193.165(6)(c); NRS 202.265(5)(b). Appellant failed to
demonstrate a reasonable probability of a different outcome at trial had
counsel made additional arguments regarding the deadly weapon
enhancement as testimony presented at trial demonstrated that appellant
threatened the victim with the weapon in order to rob him. See NRS
193.165(1). Therefore, the district court did not err in denying this claim.
Third, appellant claimed that trial counsel should have
objected to the State's use of a photograph from the night of his arrest, as
appellant asserted it was prejudicial because he wore a "doo-rag," was
with the police, and was in handcuffs. Appellant failed to demonstrate
that his trial counsel's performance was deficient or that he was
prejudiced. Counsel did object to the use of the photograph and the
district court denied the objection as it concluded the photograph was
proper to show that appellant matched the description given by the victim.
There was strong evidence of appellant's guilt presented at trial, including
that appellant was apprehended approximately seven minutes after the
victim called the police, appellant wore the clothing described by the
victim, and the victim's money and the pistol described by the victim were
discovered in appellant's backpack. Given the strong evidence of
appellant's guilt, appellant failed to demonstrate a reasonable probability
of a different outcome at trial had counsel raised additional objections to
the State's use of the photograph. Therefore, the district court did not err
in denying this claim.
Fourth, appellant claimed that counsel were ineffective for
going to trial without first obtaining discovery or exculpatory evidence.
Appellant failed to demonstrate deficiency or prejudice for this claim as he
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did not identify any discovery or evidence that counsel should have
requested prior to trial. See Hargrove, 100 Nev. at 502, 686 P.2d at 225.
Therefore, the district court did not err in denying this claim.
Fifth, appellant claimed that his counsel were ineffective for
allowing the State to invoke the exclusionary rule during the preliminary
hearing. Appellant failed to demonstrate deficiency or prejudice for this
claim as a party may properly request that witnesses are excluded from a
proceeding "so that they cannot hear the testimony of other witnesses."
NRS 50.155(1). To the extent appellant asserted that he was not
permitted to attend the preliminary hearing due to the exclusionary rule,
that assertion is belied by the record as appellant waived his right to
appear at the preliminary hearing. See State v. Sargent, 122 Nev. 210,
216-17, 128 P.3d 1052, 1056 (2006). Therefore, the district court did not
err in denying this claim.
Sixth, appellant claimed that his counsel were ineffective for
failing to argue that the witnesses' testimony was inconsistent. Appellant
failed to demonstrate that his counsel's performance was deficient or that
he was prejudiced. Counsel argued that the victim's version of events was
not believable and appellant failed to identify any additional
inconsistencies that counsel should have highlighted. See Hargrove, 100
Nev. at 502, 686 P.2d at 225. Appellant failed to demonstrate a
reasonable probability of a different outcome at trial had counsel made
further arguments regarding inconsistent testimony as it is for the jury to
determine the weight and credibility to give conflicting testimony. See
Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981). Therefore, the
district court did not err in denying this claim.
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Seventh, appellant claimed that his counsel were ineffective
for failing to argue that adjudication as a habitual criminal was not
appropriate because his prior convictions were non-violent. Appellant
failed to demonstrate that his counsel's performance was deficient or that
he was prejudiced. Counsel argued that appellant was not a danger to
society and requested that the court only sentence appellant for the
underlying offense and not as a habitual criminal. In addition, appellant's
claim was belied by the record as he did have a prior conviction for a crime
involving the use or threat of violence, a 2003 conviction for robbery.
Appellant failed to demonstrate a reasonable probability of a different
outcome had counsel raised further arguments regarding his previous
convictions as the habitual criminal statute makes no special allowance
for nonviolent crimes; that is merely a consideration within the discretion
of the district court. See Arajakis v. State, 108 Nev. 976, 983, 843 P.2d
800, 805 (1992). Therefore, the district court did not err in denying this
claim. 2
Eighth, appellant claimed that his trial counsel were
ineffective for failing to communicate appellant's acceptance of the State's
plea offer and that a month-long delay in communication of his acceptance
caused the State to rescind that offer. Appellant claimed that, but for the
errors of counsel in communicating his acceptance of the plea offer, he
2 Appellantalso appeared to claim that counsel was ineffective for
informing him that the district court would not adjudicate him as a
habitual criminal because his convictions were old and nonviolent.
Appellant failed to demonstrate a reasonable probability of a different
outcome at the sentencing hearing had counsel informed him differently
about the possibility of adjudication as a habitual criminal.
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would have received a sentence of 2 to 8 years for the robbery charge and 1
to 3 years for the deadly weapon enhancement. Appellant asserted that
he communicated his acceptance of the offer to counsel, but that the State
rescinded the offer due to counsel's delay in communicating the acceptance
to the State. The record does not belie appellant's claim that there was a
favorable plea offer that he attempted to accept. There is also no
indication from the record that the State would have cancelled the plea
offer even if it had been accepted in a timely manner and there is no
indication that the district court would have refused to accept such a plea
agreement. It would be deficient for counsel not to convey acceptance of a
time-sensitive plea offer, and appellant may have suffered prejudice by the
failure to communicate his acceptance of the offer. See Lafler v. Cooper,
566 U.S. , , 132 S. Ct. 1376, 1385 (2012) (stating that prejudice may
be shown by demonstrating a reasonable probability that there was a plea
offer from the State that the petitioner would have accepted, that the
State would not have withdrawn it in light of intervening circumstances,
that the district court would also have accepted it, and that it would have
been less severe than the actual sentence imposed).
Therefore, we reverse the district court's decision to deny this
claim and remand for an evidentiary hearing over whether such a plea
offer was made by the State, whether appellant actually communicated his
acceptance of a plea offer to counsel, whether any failure of counsel to
communicate appellant's acceptance to the State or other error of counsel
caused the State to rescind the offer, and whether the district court would
have actually accepted the plea agreement. 3
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
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 failed to
argue that the testimony presented at trial was inconsistent. Appellant
failed to demonstrate that his counsel's performance was deficient or that
he was prejudiced. As discussed previously, it is for the jury to determine
the weight and credibility to give conflicting testimony. See Bolden, 97
Nev. at 73, 624 P.2d at 20. Appellant failed to demonstrate a reasonable
likelihood of success had his appellate counsel argued the State's
3 Upon remand, the district court may exercise its discretion to
consider the factors set forth in NRS 34.750(1) and appoint post-conviction
counsel. We note appellant's counsel at trial were Jeremy Storms and
Michael Wilfong.
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witnesses' provided inconsistent testimony. Therefore, the district court
did not err in denying this claim.
Second, appellant claimed that his appellate counsel failed to
argue that the State did not disclose exculpatory evidence prior to trial.
Appellant failed to demonstrate deficiency or prejudice for this claim as he
did not identify any discovery or evidence that the State did not disclose
prior to trial. See Hargrove, 100 Nev. at 502, 686 P.2d at 225. Therefore,
the district court did not err in denying this claim.
Third, appellant claimed that his appellate counsel failed to
argue the State improperly invoked the exclusionary rule at the
preliminary hearing. Appellant cannot demonstrate deficiency or
prejudice for this claim because, as discussed previously, a party may
properly request exclusion of witnesses from a hearing. See NRS
50.155(1). Therefore, the district court did not err in denying this claim.
Next, appellant claimed that the victim's identification of him
was highly suggestive, he was not properly adjudicated as a habitual
criminal, the trial court should not have allowed correctional officers to
stand near him during trial, and the State's witnesses committed perjury.
These claims could have been raised on direct appeal and appellant failed
to demonstrate cause for the failure to do so and actual prejudice. See
NRS 34.810(1)(b). Therefore, the district court did not err in denying
these claims.
Finally, appellant claimed that the trial court erred in
rejecting his proposed jury instructions. This claim was considered and
rejected on direct appeal. Garner v. State, Docket No. 56989 (Order of
Affirmance, September 13, 2012). The doctrine of law of the case prevents
further litigation of this claim and "cannot be avoided by a more detailed
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and precisely focused argument." Hall v. State, 91 Nev. 314, 316, 535 P.2d
797, 799 (1975). Therefore, the district court did not err in denying this
claim. Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order. 4
J.
ibbons
, J.
Douglas
1
Saitta
, J.
cc: Hon. Stefany Miley, District Judge
Edward Garner
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
4 We have considered all proper person documents filed or received in
this matter. We conclude that appellant is only entitled to the relief
described herein.
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