Zamora (Gregory) v. Warden ( 2013 )

 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, 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). We give
deference to the district court's factual findings regarding ineffective
assistance of counsel 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 claims counsel was ineffective for failing to
adequately voir dire prospective jurors or review their questionnaires.
Appellant fails to demonstrate deficiency or prejudice. The district court
found that counsel reviewed the questionnaires and had tactical reasons
for not questioning each juror individually or belaboring points already
covered by the district court's questioning. The district court's findings
are supported by substantial evidence. Further, appellant failed to
present any evidence to support his claim that had counsel engaged in
further review or questioning, the outcome at trial would have been
different. We therefore conclude that the district court did not err in
denying this claim.
Second, appellant claims counsel was ineffective for failing to
take steps after the preliminary hearing to have the case addressed as a
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civil rather than a criminal matter. Appellant fails to demonstrate
deficiency or prejudice. Regardless of whether appellant's actions could
also have been the basis for a civil action, the district attorney had
discretion whether to seek to try the case as a civil matter, see
Salaiscooper v. Dist. Court, 117 Nev. 892, 902-03, 34 P.3d 509, 516 (2001),
and appellant concedes that the lower court determined there was
probable cause to bind appellant over for trial. Further, although
appellant suggests that counsel could have persuaded the district attorney
to drop the criminal charges or filed a pretrial petition for a writ of habeas
corpus in this court challenging the probable-cause finding, appellant
failed to specify what arguments such pleas and pleadings would have
contained or that either would have been successful, especially in light of
the jury having found him guilty. Cf. Kirksey v. State, 112 Nev. 980, 990,
923 P.2d 1102, 1109 (1996) (holding that petitioner did not demonstrate
prejudice where he failed to demonstrate that a motion to suppress
evidence would have succeeded); see also 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."). We therefore conclude that the district court
did not err in denying this claim.
Third, appellant claims counsel was ineffective for failing to
present to the jury evidence of appellant's background, family, and other
matters that show he "is a real person." Appellant fails to demonstrate
deficiency or prejudice. Appellant makes only bare claims and presented
no such "humanizing" evidence at the evidentiary hearing. Further, the
jury found appellant guilty, and he does not explain how a "humanized"
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defendant would have affected that outcome. We therefore conclude that
the district court did not err in denying this claim.
Fourth, appellant claims counsel was ineffective for not
making offers of proof at trial, fully investigating and arguing the critical
issues of the case, using visual aids to assist the jury with the financial
documents admitted into evidence, and offering jury instructions directing
the jury that this matter should be disposed of as a civil case and that he
was prejudiced by the cumulative effect of counsel's errors. These claims
were not raised below, and we therefore decline to consider them on
appeal in the first instance. Davis v. State, 107 Nev. 600, 606, 817 P.2d
1169, 1173 (1991), overruled on other grounds by Means, 120 Nev. at 1012-
13, 103 P.3d at 33.
Direct-appeal claims
Appellant next claims that the district court erred in not
considering his claims that the State failed to prove the requisite intent,
he was denied the right to a fair and impartial jury, and the trial court
erred in refusing to allow appellant to impeach the victim.' Each of these
claims was raised and rejected on direct appeal, and the doctrine of the
law of the case prevents further litigation of these issues. Hall v. State, 91
Nev. 314, 316, 535 P.2d 797, 799 (1975). Appellant made no attempt to
argue that the doctrine of the law of the case should not apply here. See
Hsu v. County of Clark, 123 Nev. 625, 632, 173 P.3d 724, 729-30 (2007);
see also Maresca, 103 Nev. at 673, 748 P.2d at 6. To the extent appellant
suggests that the ineffective assistance of appellate counsel may excuse
'Appellant's claim regarding impeachment was not raised in the
petition below, and we therefore decline to consider it on appeal in the
first instance. Davis, 107 Nev. at 606, 817 P.2d at 1173.
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any bar, appellant did not argue this below and we therefore decline to
consider it on appeal in the first instance. Davis, 107 Nev. at 606, 817
P.2d at 1173. We therefore conclude that the district court did not err in
denying these claims.
For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED.
Douglas
Saitta
cc: Hon. William Rogers, District Judge
Cheri K. Emm-Smith
Churchill County District Attorney
Attorney General/Carson City
Churchill County Clerk
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