Chen (Xue) v. State ( 2014 )

 To prove ineffective assistance of 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
there is a reasonable probability that, but for counsel's errors, the outcome
of the 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).
At the evidentiary hearing, Chen's trial counsel testified that
she acknowledged that Chen had a knife during the attack, but argued
that the knife was not actually used to cause the injuries sustained by the
victims, because she believed that the witnesses would testify that they
observed a knife and it would have been too hard to discredit all of the
witnesses. We agree with the district court's determination that this
tactical decision was not objectively unreasonable and we affirm the denial
of this claim. See Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953
(1989) ("Tactical decisions are virtually unchallengeable absent
extraordinary circumstances.").
Third, Chen contends that the district court erred by denying
his claim that his counsel was ineffective for failing to file pretrial motions
regarding the admissibility of prior bad acts. Chen argues that had
counsel obtained a pretrial determination regarding what evidence would
be admissible, counsel would not have had to object during the
SUPREME COURT
OF
NEVADA
2
(0) 1941A
prosecution's opening statement and the jury would not have heard the
words "prior bad acts." The district court determined that, because this
court held on direct appeal that the character evidence was not prior bad
act evidence, the issue was resolved by the law of the case and counsel's
objection to the character evidence was not objectively unreasonable. This
determination failed to address the merit of Chen's claim. Nevertheless,
Chen failed to demonstrate that counsel was deficient. Because the
statements counsel objected to did not actually reference evidence of prior
bad acts, Chen failed to demonstrate that the filing of a pretrial motion
regarding the admissibility of prior bad act evidence would have prevented
counsel's objection. Therefore, we affirm the denial of this claim. See
Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970) ("If a judgment
or order of a trial court reaches the right result, although it is based on an
incorrect ground, the judgment or order will be affirmed on appeal.").
Having concluded that Chen is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.
.--LL ciac
Hardesty
, J.
Douglas
cc: Hon. James Todd Russell, District Judge
Erik R. Johnson
Attorney General/Carson City
Carson City District Attorney
Carson City Clerk
SUPREME COURT
OF
NEVADA
3
(0) 1947A 4ito