Follett (Loren) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
LOREN RAYMOND FOLLETT, No. 67143
Appellant,
vs.
THE STATE OF NEVADA; AND FILED
ROBERT LEGRAND, WARDEN,
MAR 1 7 2016
LOVELOCK CORRECTIONAL
CENTER, NEVADA DEPARTMENT OF
CORRECTIONS,
Respondents.
ORDER OF AFFIRMANCE
This is an appeal from an order of the district court denying a
postconviction petition for a writ of habeas corpus. Second Judicial
District Court, Washoe County; Jerome M. Polaha, Judge.
On appeal from the denial of his April 21, 2014, petition,
appellant first argues that the district court erred in denying his claims
that the trial court had erred in failing to instruct the jury that a
reasonable but mistaken belief in consent is a defense to sexual assault
and in allowing the State's expert to give testimony regarding delayed
reporting of sexual assault. This court considered and rejected these
claims on direct appeal. See Follett v. State, Docket No. 60784 (Order of
Affirmance, May 15, 2013). Those holdings are the law of the case, which
"cannot be avoided by a more detailed and precisely focused argument
subsequently made after reflection upon the previous proceedings." Hall
v. State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975). Appellant has failed
to demonstrate that those holdings are "so clearly erroneous" as to
warrant departing from them. Tien Fu Hsu v. County of Clark, 123 Nev.
625, 631, 173 P.3d 724, 729 (2007) (quoting Clem v. State, 119 Nev. 615,
620, 81 P.3d 521, 525 (2003)).
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Appellant next argues that the district court erred in denying
his claims of ineffective assistance of trial and appellate counsel. 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); see also Kirksey v. State,
112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996). Both components of the
inquiry must be shown. Strickland, 466 U.S. at 697. Claims must be
supported by specific factual allegations that, if true and not repelled by
the record, would entitle a petitioner to relief. Hargrove v. State, 100 Nev.
498, 502, 686 P.2d 222, 225 (1984).
First, appellant argues that trial counsel was ineffective for
failing to interview witnesses despite a clear duty to investigate.
Appellant has failed to demonstrate deficiency or prejudice. For the
events where there were witnesses, appellant has not demonstrated that
counsel was objectively unreasonable in not interviewing the witnesses
because the discrepancies in appellant's and the victim's testimony were
minor. As to the beginning of the disagreement, both appellant and the
victim testified that they were alone, so there were no witnesses.
Moreover, appellant's bare claim does not indicate that he was prejudiced,
because he fails to indicate what the witnesses would have said or show
how their testimony would have resulted in a different outcome at trial.
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.
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Second, appellant argues appellate counsel was ineffective for
failing to contact the jurors after trial to learn what happened to cause
them to move from hung to a unanimous guilty verdict. Appellant has
failed to demonstrate deficiency or prejudice. Appellant has not
demonstrated that counsel was objectively unreasonable where the
general rule is that jurors may not impeach their own verdict. See Meyer
v. State, 119 Nev. 554, 562, 80 P.3d 447, 454 (2003). Moreover, appellant's
bare claim does not indicate that he was prejudiced, because he fails to
state what the jurors would have said or how it would have resulted in a
reasonable probability of success on appeal. We therefore conclude that
the district court did not err in denying this claim.
Third, appellant argues appellate counsel was ineffective for
failing to file a reply brief. Appellant has failed to demonstrate deficiency
or prejudice. Whether to file a reply brief is discretionary. See NRAP
28(c) ("The appellant may file a brief in reply." (emphasis added)).
Further, appellant has not identified any new matter that the State raised
in its answering brief such that a reply brief would have been appropriate.
See id. ("A reply brief. . . must be limited to answering any new matter set
forth in the opposing brief."). Moreover, appellant's bare claim does not
indicate what the reply brief should have said or how it would have
resulted in a reasonable probability of success on appeal. We therefore
conclude that the district court did not err in denying this claim.
Finally, appellant argues that cumulative error warrants a
reversal of his conviction. As this claim was not raised below, we need not
consider it on appeal 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, 1012-13, 103 P.3d 25, 33 (2004).
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For the foregoing reasons, we conclude that appellant's claims
lack merit, and we
ORDER the judgment of the district court AFFIRMED.
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cc: Hon. Jerome M. Polaha, District Judge
Kenneth J. McKenna
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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