Townsend (John) v. State ( 2015 )

 Townsend's lack of criminal intent; (3) the State committed prosecutorial
misconduct by asking the victim a misleading question; and (4) the State's
expert witness gave improper testimony. The district court dismissed the
ineffective-assistance claims as lacking in merit. Specifically, the district
court determined that Townsend failed to provide any specific factual
allegations to demonstrate that trial counsel had interfered with
Townsend's right to testify in his defense, and that Townsend's allegations
did not demonstrate that trial counsel acted deficiently by not calling
certain witnesses to testify at trial, as much of their testimony would not
have been admissible. The district court dismissed the remaining claims
as procedurally barred because they could have been raised on direct
appeal and Townsend failed to allege good cause.
Townsend argues that the district court should have held an
evidentiary hearing on his claim of ineffective assistance of trial counsel
for preventing Townsend from testifying at trial, as Townsend made this
ineffective-assistance allegation in his petition under oath, the record does
not indicate that Townsend was canvassed about his right to testify, and it
is reasonable to assume that trial counsel did not discuss with Townsend
his right to testify in light of Townsend's assertion that counsel met with
him only once before trial. Townsend fails to demonstrate that his single
statement in his petition—that trial counsel "denied [him] the opportunity
to testify in [his] own defense"—warranted relief. See id. at 502, 686 P.2d
at 225 (stating that a petitioner is not entitled to an evidentiary hearing
on 'bare' or 'naked' claims for relief, unsupported by any specific factual
allegations"). Townsend provided no explanation in his petition as to how
counsel prevented him from testifying, he made no allegation that he was
unaware of his• right to testify, and he did not assert that he actually
wanted to testify or explain how his testimony would have affected the
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outcome of the trial. See Strickland v. Washington, 466 U.S. 668, 687
(1984) (requiring a petitioner to demonstrate both deficient performance
and prejudice to establish ineffective assistance of counsel). Therefore, we
conclude the district court did not err in denying this claim without
holding an evidentiary hearing.
Townsend also argues that the district court erred in denying
his other claims without holding an evidentiary hearing. Townsend does
not specifically dispute the district court's factual findings or conclusions
of law as to those claims. Rather, he blames postconviction counsel for
failing to request an evidentiary hearing, for failing to investigate and
adequately supplement the claims raised in his petition, and for failing to
allege good cause for the procedural default of the prosecutorial
misconduct and expert testimony claims. Townsend's complaints about
postconviction counsel's performance do not demonstrate that the district
court erred in failing to hold an evidentiary hearing on these claims.
Townsend appears to contend that, in declining to hold an
evidentiary hearing, the district court should not have relied solely on the
allegations contained in the petition and supplemental petition because
other documents in the record indicated that Townsend was dissatisfied
with trial counsel. Townsend lists numerous concerns about trial counsel,
including counsel's failure to: (1) meet with Townsend more than once •
before trial; (2) investigate evidence requested by Townsend; (3) subpoena
an expert to negate any criminal intent; (4) qualify Townsend's counselor
as an expert; (5) file pretrial motions to exclude evidence, including
Townsend's statements to a detective; (6) request an independent
psychological examination of the victim or of Townsend; and (7) file a
motion for an independent defense expert. Townsend did not present any
of these allegations to the district court in either his petition or
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supplemental petition, and he provides no authority for his contention
that the district court was required to infer these allegations from the
record. Thus, he fails to demonstrate any error by the district court. To
the extent that he seeks our review of these allegations on appeal, we
decline to consider them in the first instance. See Davis v. State, 107 Nev.
600, 606, 817 P.2d 1169, 1173 (1991), overruled on other grounds by Means
v. State, 120 Nev. 1001, 103 P.3d 25 (2004).
The remainder of Townsend's arguments on appeal relate to
the performance of his postconviction counsel who represented him during
the district court proceedings. Townsend alleges that postconviction
counsel provided ineffective assistance by failing to meet with him,
supplement all of the claims raised in his pro se petition, and investigate
and raise additional claims. His claims of ineffective assistance of
postconviction counsel were not raised before the district court, and we
decline to consider them in the first instance. See id.For the foregoing reasons, we conclude that Townsend has
failed to demonstrate that the district court erred in denying his claims
without an evidentiary hearing, and we
ORDER the judgment of the district court AFFIRMED.
d-4,4L J.
Gibbons
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cc: Hon. Steve L. Dobrescu, District Judge
Kirsty E. Pickering Attorney at Law
Attorney General/Carson City
White Pine County District Attorney
Attorney General/Ely
White Pine County Clerk
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