Recktenwald, Jr. (Paul) v. State ( 2014 )

 proceedings would have been different. 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. We give deference to
the district court's factual 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 contends that counsel was ineffective for
failing to impeach the victim with her admission that she lied under oath
at the preliminary hearing and with evidence that would have
contradicted her testimony that she watched television at appellant's
house. We conclude that appellant has failed to demonstrate that the
district court erred in denying this claim. The district court found that
trial counsel did in fact cross-examine the witness about lying and making
prior inconsistent statements and that the evidence presented by
appellant did not establish that there was no electricity at his home when
the victim was there. Appellant fails to address the district court's specific
findings or present any argument on appeal demonstrating that the
district court erred in denying this claim. Further, appellant fails to
provide this court with an adequate appendix containing the complete
trial transcripts and other pertinent parts of the record for this court's
review on appeal. See Thomas v. State, 120 Nev. 37, 43 & n.4, 83 P.3d
818, 822 & n.4 (2004) (appellant is ultimately responsible for providing
this court with portions of the record necessary to resolve his claims on
appeal); Greene u. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The
burden to make a proper appellate record rests on appellant.").
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Accordingly, appellant has failed to demonstrate that counsel was
deficient or that there was a reasonable probability that, but for counsel's
alleged errors, the outcome of the trial would have been different.
Second, appellant argues that counsel was ineffective for
failing to file a pretrial motion to exclude the victim's testimony at trial.
I
Appellant has failed to demonstrate deficiency or prejudice, as he has no t
demonstrated that such a motion would have been successful. See
Donovan v. State, 94 Nev. 671, 675, 584 P.2d 708, 711 (1978) (holding that
counsel cannot be ineffective for failing to make futile motions).
Third, appellant argues that counsel was ineffective for failing
to question C. Moore about his status as a jailhouse informant for the
State and the beneficial plea and sentence that he received in exchange for
his testimony. Appellant fails to demonstrate deficiency or prejudice.
This claim is belied by the record, as counsel elicited from Moore that he
had written a letter to the district attorney offering to provide informatiOn
on various individuals, including appellant, in exchange for a plea
agreement. As Moore had not yet been sentenced at the time of his
testimony, counsel could not have questioned him about the terms of the
sentence. Thus, appellant fails to demonstrate that the district court
erred in denying this claim.
Fourth, appellant argues that counsel was ineffective for
failing to obtain records used by the State's expert witness Dr. Richett and
for failing to question her about the victim's prior allegations of sexual
assault and the victim's father who was a convicted child molester.
Appellant fails to demonstrate deficiency or prejudice. The record shows
that counsel elicited from the expert that she knew about the victini's
father and that this knowledge did not change her opinion that the victim
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had been sexually abused. Appellant does not explain which records
counsel should have obtained or how counsel's failure to do so affected the
outcome of the trial. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3,
6 (1987) ("It is appellant's responsibility to present relevant authority and
cogent argument; issues not so presented need not be addressed by this
court."). Furthermore, in light of appellant's failure to provide this court
with trial transcripts, appellant cannot demonstrate a reasonable
probability that, but for counsel's alleged errors, the outcome of the trial
would have been different. See Thomas, 120 Nev. at 43 & n.4, 83 P.3d at
822 & n.4; Greene, 96 Nev. at 558, 612 P.2d at 688. Thus, appellant fails
to demonstrate that the district court erred in denying this claim.
Fifth, appellant argues that counsel was ineffective for failing
to cross-examine the State's witness G. Wiley about his appropriation of
appellant's four-wheeler and camper, which would have shown that Wiley
had animosity toward appellant. Appellant fails to demonstrate deficiency
or prejudice. Excerpts of the trial transcripts show that counsel cross-
examined Wiley about his feelings toward appellant, and appellant fails to
demonstrate that further questioning would have had a reasonable
probability of changing the outcome at trial. Thus, appellant fails to
demonstrate that the district court erred in denying this claim.
Sixth, appellant argues that counsel was ineffective for failing
to cross-examine D. Coleman about the nature of her plea bargain and
whether she was being allowed to testify truthfully. Appellant fails to
demonstrate deficiency or prejudice. Coleman testified under oath that
she had entered an Alford plea to sexual seduction and that she had
received a very good deal by pleading guilty because she was initially
charged with multiple counts with potential sentences of life in prison.
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Appellant fails to demonstrate that any further questioning by counsel
about the nature or terms of her plea had a reasonable probability of
changing the outcome of the trial. Thus, appellant fails to demonstrate
that the district court erred in denying this claim.
Seventh, appellant argues that counsel was ineffective for
failing to file a motion to preclude "improper bad act evidence." Appellant
fails to demonstrate prejudice. This court concluded on direct appeal that
an incident testified to by L. Baumgartner should not have been admitted
at trial but that the admission was harmless error in light of the
overwhelming evidence against appellant. See Recktenwald, Jr. v. State,
Docket No. 32103 (Order Dismissing Appeal, January 25, 2000).
Accordingly, appellant does not demonstrate that, had counsel filed such a
motion, there was a reasonable probability of a different outcome at trial.
Thus, appellant fails to demonstrate that the district court erred in
denying this claim.
Eighth, appellant argues that counsel was ineffective for
eliciting testimony from a State witness that appellant had convictions for
rape and murder. Appellant fails to demonstrate prejudice. In light of
appellant's failure to provide this court with trial transcripts, he cannot
demonstrate a reasonable probability that, but for counsel's alleged errors,
the outcome of the trial would have been different. See Thomas, 120 Nev.
at 43 & n.4, 83 P.3d at 822 & n.4; Greene, 96 Nev. at 558, 612 P.2d at 688.
Thus, appellant fails to demonstrate that the district court erred in
denying this claim.
Ninth, appellant argues that counsel was ineffective for failing
to provide the jury with a transition instruction, which resulted in the jury
finding him guilty of both sexual assault and the lesser-related offense of
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statutory sexual seduction. This claim appears to be belied by excerpts of
the trial transcripts and by appellant's own allegations, which indicate
that the jurors were instructed that they could consider whether appellant
was guilty of statutory sexual seduction if they had a reasonable doubt
that he was guilty of sexual assault, but that they could not find him
guilty of both. Furthermore, appellant fails to demonstrate prejudice, as
the district court dismissed the sexual seduction counts after the jury
found him guilty of sexual assault. Therefore, appellant fails to
demonstrate that the district court erred in denying this claim.
Tenth, appellant argues that counsel was ineffective for failing
to object to appellant's adjudication as a habitual offender where the State
provided insufficient notice of intent to seek habitual offender
adjudication. Appellant claims that the State filed the notice of intent
prematurely and improperly. Appellant does not explain how the State's
notice was premature or improperly filed, nor does he provide a sufficient
appendix for us to review this claim. See Thomas, 120 Nev. at 43 & n.4,
83 P.3d at 822 & n.4; Greene, 96 Nev. at 558, 612 P.2d at 688. Thus, he
fails to demonstrate that the district court erred in denying this claim.
Eleventh, appellant argues that counsel was ineffective at
sentencing for failing to call appellant's son and friends as witnesses and
for failing to make "significant arguments" on appellant's behalf.
Appellant fails to demonstrate deficiency or prejudice. He does not
explain what testimony the witnesses would have provided at sentencing
or how their testimony would have affected the proceedings. Appellant
also does not identify any arguments that counsel should have made at
sentencing. See Maresca, 103 Nev. at 673, 748 P.2d at 6. Thus, appellant
fails to demonstrate that the district court erred in denying this claim.
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Twelfth, appellant argues that counsel was ineffective for
failing to object during closing argument to the prosecutor's statements
that the defense was "wispy vapor trails" and "rabbit trails" and to the
prosecutor's argument regarding inadmissible evidence. In light of
appellant's failure to provide the trial transcripts in his appendix, he
cannot demonstrate a reasonable probability that, but for counsel's failure
to object, the outcome of the trial would have been different. See Thomas,
120 Nev. at 43 & n.4, 83 P.3d at 822 & n.4; Greene, 96 Nev. at 558, 612
P.2d at 688. Thus, he fails to demonstrate that the district court erred in
denying this claim.
Thirteenth, appellant argues that counsel was ineffective for
failing to present evidence to the jury and to make a record, and appellant
also appears to contend that this resulted in a violation of his right to
confront the witnesses against him. Appellant makes no cogent argument
on appeal as to this claim, see Maresca, 103 Nev. at 673, 748 P.2d at 6, and
thus fails to demonstrate that the district court erred in denying it.
Next, appellant contends that he has new evidence that he is
actually innocent. Appellant asserts that, after trial, two witnesses
recanted their testimony and accused the prosecution of forcing them to
commit perjury. Even assuming a freestanding actual-innocence claim is
cognizable in a post-conviction petition for a writ of habeas corpus,
appellant's failure to provide the trial transcripts precludes our review of
this claim, especially given that there were 20 other witnesses, including
the victim, who testified against him at trial. See generally Calderon u.
Thompson, 523 U.S. 538, 559 (1998) (explaining that, to demonstrate
actual innocence, a petitioner must show that "it is more likely than not
that no reasonable juror would have convicted him in light of . . new
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evidence" (internal quotation marks omitted)). Thus, appellant fails to
demonstrate that the district court erred in denying this claim.
For the foregoing reasons, we conclude that the district court
did not err in denying the petition, and we
ORDER the judgment of the district court AFFIRMED. 2
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Pickering
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Parraguirre
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cc: Hon. Kimberly A. Wanker, District Judge
David H. Neely, III
Nye County District Attorney
Attorney General/Carson City
Nye County Clerk
2We decline appellant's request to take judicial notice of various
exhibits because it does not appear that those exhibits were presented in
the proceedings below.
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