Hammons (Benny) v. State ( 2014 )

 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).
First, appellant argues that counsel was ineffective for
conceding that appellant should be adjudicated a habitual criminal.
Appellant has failed to demonstrate deficiency or prejudice. In support of
his argument, appellant points to Jones v. State, in which this court held
that trial counsel was ineffective for conceding in closing argument during
the guilt phase of a jury trial that his client was guilty of a lesser-included
offense where the concession directly contradicted his client's own
testimony. 110 Nev. 730, 738, 877 P.2d 1052, 1057 (1994). Jones was
expressly limited to its facts, id. at 739, 877 P.2d at 1057, and is thus
inapposite here where counsel conceded before the sentencing judge to
habitual criminal treatment and did not contradict any testimony of
appellant at trial. Further, the district court's finding that it was a
reasonable strategic decision of counsel is supported by substantial
evidence in the record. We therefore conclude that the district court did
not err in denying this claim.
Second, appellant argues that counsel was ineffective for
failing to object to appellant's adjudication as a habitual criminal on the
grounds that the district court did not follow the proper procedures.
Specifically, appellant argues that the evidence of his prior convictions
was not formally offered and accepted into evidence, the district court did
not state on the record that the prior convictions were valid and proper for
enhancement purposes, he was not given an opportunity to admit or deny
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their validity, and the district court did not first sentence him on the
substantive crime charged and then invoke the recidivist statute to
determine the penalty. Appellant has failed to demonstrate deficiency or
prejudice. This court has never required a formal offering and acceptance
of evidence of prior convictions, see Hymon v. State, 121 Nev. 200, 215-16,
111 P.3d 1092, 1103 (2005), nor has it required the articulation of
"talismanic phrases," cf. Avery v. State, 122 Nev. 278, 284, 129 P.3d 664,
668 (2006). Further, trial counsel testified at the evidentiary hearing that
he had reviewed the prior convictions with appellant and that appellant
did not indicate that any were invalid. Appellant's testimony contradicted
this, but the district court found him to be largely incredible. Also, the
judgment of conviction unequivocally demonstrated that appellant was
convicted of the primary offenses, was adjudicated a habitual criminal,
and was sentenced accordingly. Finally, appellant failed to demonstrate
prejudice where, even were the procedures improper, a successful
objection would simply have resulted in the use of the proper procedure
but not a reasonable probability of a different outcome. We therefore
conclude that the district court did not err in denying this claim.
Third, appellant argues that counsel was ineffective for failing
to object to appellant's adjudication as a habitual criminal on the ground
that the State failed to prove beyond a reasonable doubt the existence of
each prior conviction and that each was a felony. Appellant has failed to
demonstrate deficiency or prejudice. Where the state in which the crime
was committed considers the crime to be a felony, it is a felony for
purposes of habitual criminal adjudication regardless of whether it would
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be a felony in Nevada. See NRS 207.010(1)(b). Moreover, appellant has
neither alleged nor demonstrated by a preponderance of the evidence that
any of his prior felony convictions were invalid and, accordingly, has failed
to demonstrate a reasonable probability of a different outcome had counsel
objected. We therefore conclude that the district court did not err in
denying this claim.
Fourth, appellant argues that counsel was ineffective when he
persuaded appellant to waive his preliminary hearing because, had he not
done so, counsel could have learned who knew of the victim's safe in order
to explore their motives and opportunities to commit the crime and could
have questioned the victim why, on the day of the crime, her written police
statement listed several possible suspects but did not include appellant.
Appellant has failed to demonstrate deficiency or prejudice. Substantial
evidence in the record supports the district court's finding that it was a
reasonable strategic decision of counsel and that counsel was in fact aware
of and had investigated many of the leads and alternative suspects
appellant suggests he should have. Further, although appellant failed to
provide this court with the victim's written police statement, see Greene v.
State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The burden to make a
proper appellate record rests on appellant."), the record reflects that at the
time she reported the theft, the victim told detectives about appellant and
gave them the paper on which he had written his name and number.
Moreover, appellant presented no evidence at his evidentiary hearing of
what additional leads or information would have developed from a
preliminary hearing, and accordingly, he failed to demonstrate a
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reasonable probability of a different outcome. See Molina v. State, 120
Nev. 185, 192, 87 P.3d 533, 538 (2004). We therefore conclude that the
district court did not err in denying this claim.
Fifth, appellant argues that counsel was ineffective for failing
to conduct adequate pretrial investigation. Appellant has failed to
demonstrate deficiency or prejudice. Appellant did not demonstrate by a
preponderance of the evidence that law enforcement stopped their
investigation as soon as they identified appellant's prints and thus did not
demonstrate that counsel was objectively unreasonable in not
investigating why they did. Also, the record demonstrates that counsel
made reasonable strategic decisions not to call J. Hightower as a witness
where he would not have been credible nor testified in a manner that
would have helped appellant and not to present appellant's cell phone
records that, at best, would have had no effect on the case. Moreover,
appellant failed to present any evidence at the evidentiary hearing of what
a more thorough investigation would have yielded or how it would have
affected the outcome of the trial, id., nor did he demonstrate a reasonable
probability of a different outcome where none of the hoped-for evidence
would have explained his fingerprints on the inside of the locked closet
where the stolen safe was kept. We therefore conclude that the district
court did not err in denying this claim.
Sixth, appellant argues that counsel was ineffective for failing
to challenge the State's fingerprint evidence. Appellant has failed to
demonstrate deficiency or prejudice. Counsel retained a fingerprint expert
to review the State's evidence, and the defense expert concurred with the
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State's expert that appellant's fingerprints were recovered from both the
inside and outside of the locked closet. Further, the district court's finding
that counsel made a strategic decision to offer an alternative explanation
for the presence of the prints instead of challenging their accuracy was
supported by substantial evidence in the record. Moreover, appellant's
references to a vacated federal case from Pennsylvania and to an article
questioning in general the rigor of the science underlying fingerprint
analysis failed to demonstrate by a preponderance of the evidence that
there was any admissible evidence that counsel could have used to
impeach the accuracy of the fingerprint identification, see, e.g., Sheriff v.
Harrington, 108 Nev. 869, 871, 840 P.2d 588, 589 (1992) (holding that the
ruling of a court is an opinion, not evidence), and, accordingly, failed to
demonstrate a reasonable probability of a different outcome had counsel
challenged the evidence. See Molina, 120 Nev. at 192, 87 P.3d at 538. We
therefore conclude that the district court did not err in denying this claim.
Seventh, appellant argues that counsel was ineffective for
failing to argue at sentencing that appellant's criminal history was
primarily of non-violent, theft-related crimes, that he was employable and
had family that he may never see again if adjudicated a large habitual
criminal, and that he had health issues that would render his sentence the
equivalent of life without the possibility of parole. Appellant has failed to
demonstrate deficiency or prejudice. The record demonstrates that the
sentencing court was well aware of the nature of appellant's criminal past
and the presentence investigation report indicated that appellant was
unemployed at the time of the crime and suffered from diabetes and high
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blood pressure. Moreover, in light of his extensive criminal history
spanning decades and the sentencing court's statement that it would have
considered an even stronger sentence than what the State advocated for
and what was imposed, appellant has failed to demonstrate a reasonable
probability of a more favorable sentence had counsel highlighted this
mitigating information. We therefore conclude that the district court did
not err in denying this claim.
Eighth, appellant argues that counsel was ineffective for
failing to object when the State commented on his silence which shifted
the burden of proof in closing argument because, had counsel done so, this
court would have analyzed those assignments of error under a more
favorable standard of review, resulting in a different outcome on direct
appeal. Appellant has failed to demonstrate deficiency or prejudice. On
direct appeal, this court held that the State's remarks were not a comment
on appellant's silence, Hammons v. State, Docket No. 55801 (Order of
Affirmance, September 14, 2011) and that ruling is the law of the case,
Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). Appellant
thus failed to demonstrate that counsel was objectively unreasonable in
not objecting to the argument and that there was a reasonable probability
of a different outcome had counsel objected. We therefore conclude that
the district court did not err in denying this claim.
Appellant next argues that the district court erred in denying
his 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
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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).
First, appellant argues that counsel was ineffective for failing
to challenge appellant's adjudication as a habitual criminal on the grounds
that some prior convictions were not felonies and that the district court
did not use the proper procedures to adjudicate appellant a habitual
criminal. For the reasons discussed previously, appellant has failed to
demonstrate that appellate counsel was deficient or that he was
prejudiced. We therefore conclude that the district court did not err in
denying these claims.
Second, appellant argues that counsel was ineffective for
failing to provide this court with a transcript in support of appellant's
direct-appeal claim that the district court erred in denying his request for
new trial counsel. Appellant has failed to demonstrate deficiency or
prejudice. Although this court noted on direct appeal that appellant failed
to provide the transcript for the hearing at which the district court ruled
on appellant's request, this court did affirm the district court's decision
based on the minutes of the hearing. See Hammons v. State, Docket No.
55801 (Order of Affirmance, September 14, 2011). Appellant has again
failed to provide this court with transcripts of the relevant hearing. See
Greene, 96 Nev. at 558, 612 P.2d at 688. Thus appellant has failed to
demonstrate by a preponderance of the evidence that the transcripts
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differed substantially from the minutes on which this court relied and,
accordingly, has failed to demonstrate that counsel was objectively
unreasonable in not providing the transcript or that there was a
reasonable probability of a different outcome on appeal had counsel
provided them. We therefore conclude that the district court did not err in
denying this claim.
Third, appellant argues that counsel was ineffective for failing
to argue that trial counsel erred in conceding that appellant should be
adjudicated a habitual criminal. Appellant has failed to demonstrate
deficiency because ineffective-assistance claims are generally
inappropriate to raise on direct appeal See Pellegrini v. State, 117 Nev.
860, 882-83, 34 P.3d 519, 534-35 (2001). We therefore conclude that the
district court did not err in denying this claim.
Appellant next argues that he was denied the right to testify
on his own behalf, that the length of his sentence constituted cruel and
unusual punishment, and that the cumulative effect of trial error deprived
him of due process. These claims could have been raised on direct appeal,
Hammons v. State, Docket No. 55801 (Order of Affirmance, September 14,
2011), and are therefore procedurally barred absent a demonstration of
good cause and actual prejudice. NRS 34.810(1)(b). Appellant made no
cogent argument of good cause or actual prejudice in his opening brief, 1
'In his reply brief, appellant claims that appellate counsel was
ineffective for not raising the first two claims on direct appeal and appears
to suggest that the cumulative errors of trial and appellate counsel
warrant relief under Strickland. However, arguments on appeal may not
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and we therefore conclude that the district court did not err in denying
these claims.
Finally, appellant lists several claims that had been raised in
his initial proper person petition for a writ of habeas corpus. They are
bare assertions without any context, cogent argument, or support, and we
decline to consider them. See Maresca v. State, 103 Nev. 669, 673, 748
P.2d 3, 6 (1987); NRAP 28(e)(2) (prohibiting incorporation by reference).
For the foregoing reasons, we conclude that appellant's claims
lack merit, and we
ORDER the judgment of the district court AFFIRMED.
x o, stAt, J.
J.
J.
...continued
be raised for the first time in a reply brief, see NRAP 28(c); Browning v.
State, 120 Nev. 347, 368 n.53, 91 P.3d 39, 54 n.53 (2004), and we therefore
decline to consider these claims on their merits.
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cc: Hon. James M. Bixler, District Judge
Brown Law Office
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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