Eubanks (Charles) v. Warden ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
CHARLES SHEA EUBANKS, No. 68628
Appellant,
vs.
RENEE BAKER, WARDEN, ELY STATE
PRISON,
Respondent.
FILED
MAY 0 9 2016
TRACIE K. LrNIDEMAN
CLERK OF SUPREME COURT
By -s
DEPUTY CLERK
ORDER OF AFFIRMANCE
This is a pro se appeal from an order of the district court
denying appellant Charles Shea Eubanks' postconviction petition for a
writ of habeas corpus. Fifth Judicial District Court, Nye County; Robert
W. Lane, Judge.
Eubanks claimed that trial and appellate counsel were
ineffective, accordingly, he bore the burden of demonstrating that (1)
counsel's performance fell below an objective standard of reasonableness
and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 694
(1984); Kirksey v. State, 112 Nev. 980, 987-88, 998, 923 P.2d 1102, 1107,
1114 (1996). To prove ineffective assistance of appellate counsel, a
petitioner must demonstrate that counsel's performance was deficient and
resulting prejudice such that the omitted issue would have had a
reasonable probability of success on appeal. Kirksey, 112 Nev. at 998, 923
P.2d at 1114. A court need not consider both prongs of the Strickland test
if a defendant makes an insufficient showing on either prong. Strickland,
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466 U.S. at 697. An evidentiary hearing is warranted only if a petitioner
raises claims supported by specific factual allegations that are not belied
by the record and, if true, would entitle him to relief. See Hargrove v.
State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984).
First, Eubanks claimed that trial counsel was ineffective for
failing to investigate his competency before trial. He asserts that he was
not competent to assist counsel in his defense, make an informed decision
regarding whether to accept a guilty plea or proceed to trial, or form the
specific intent for first-degree murder. Eubanks failed to demonstrate
that trial counsels' performance was deficient or that he was prejudiced.
Eubanks' history of drug abuse, possible PTSD, and mental health history,
without more, did not indicate that he was unable to consult with his
attorney or understand the proceedings against him See Melchor-Gloria
v. State, 99 Nev. 174, 179-80, 660 P.2d 109, 113 (1983) (citing Dusky v.
United States, 362 U.S. 402 (1960)). Notably, the record reveals multiple
interactions between Eubanks and the district court that did not cast
doubt on his competency. Eubanks even acknowledged in his petition that
he communicated with counsel. As Eubanks failed to demonstrate
sufficient circumstances raising doubt as to his competency, he did not
demonstrate that counsel's alleged failure to investigate his competency
was unreasonable. Therefore, the district court did not err in denying this
claim.
Second, Eubanks claimed that trial counsel was ineffective for
failing to reinstate the preliminary hearing after the State altered the
terms of the plea agreement. Eubanks failed to demonstrate that
counsel's performance in this respect was unreasonable where Eubanks
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waived his right to a preliminary hearing after he was personally advised
by the court that his waiver was unconditional and could not be
withdrawn if the plea negotiations, which had not been completed, failed
to result in an acceptable bargain. Therefore, the district court did not err
in denying this claim.
Third, Eubanks claimed that trial counsel failed to explain the
elements of first-degree murder and aiding and abetting liability. He
contended that had he known that he could be subject to liability for
aiding and abetting, he would have accepted the guilty plea offer.
Eubanks failed to demonstrate that counsel's performance was deficient or
that he was prejudiced. Witnesses testified that Eubanks walked toward
the trailer where the crimes occurred carrying knives, told his confederate,
Troy Jackson, that they had been given a "green light" to kill Michael
Frasher, and then started to stab Frasher while Jackson attacked
Antoinette Bell, who was also present. After his arrest, Eubanks admitted
to multiple people that he killed Frasher. As significant evidence pointed
to Eubanks' involvement as a principal, he failed to demonstrate that any
discussion concerning abetting liability would have affected his decision to
proceed to trial. Therefore, the district court erred in denying this claim.
Fourth, Eubanks claimed that trial counsel was ineffective for
failing to request a change of venue or have the jury selection transcribed.
He asserted that the crime occurred in a small town where people were
familiar with each other and many of the potential jurors attended the
same church as the district attorney. However, Eubanks did not allege
that these relationships rendered any of the jurors or potential jurors
unfairly biased against him. See Sommer v. State, 112 Nev. 1328, 1336, 930
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P.2d 707, 712-13 (1996) (recognizing that a defendant seeking a change of
venue must "demonstrate actual bias on the part of the jury empaneled"),
modified on rehearing on other grounds by 114 Nev. 321, 955 P.2d 673(1998). Further, Eubanks failed to identify an empanelled juror who was
biased against him and therefore did not demonstrate that the failure to
transcribe the jury selection hindered appellate counsel's ability to raise
claims on appeal. See Daniel v. State, 119 Nev. 498, 508, 78 P.3d 890, 897
(2003) (recognizing that the failure to record part of the proceedings is not
grounds for reversal in and of itself but an appellant must demonstrate
the missing record was so significant that the appellate court could not
meaningfully review the appeal). Therefore, the district court did not err
in denying this claim.
Fifth, Eubanks claimed that trial counsel was ineffective for
failing to call character witnesses during the penalty phase of trial who
would have testified that he could not have committed the crime based on
the type of person he is. As the question of Eubanks guilt was not
relevant to the penalty phase of trial, see Gallego v. State, 117 Nev. 348,
368, 23 P.3d 227, 241 (2001), abrogated on other grounds by Nunnery v.
State, 127 Nev. 749, 263 P.3d 235 (2011), he failed to demonstrate that
counsel's decision to not introduce this testimony was unreasonable, see
Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996) (noting
that whom to call as a witness "is a tactical decision that is 'virtually
unchallengeable absent extraordinary circumstances" (quoting Howard v.
State, 106 Nev. 713, 722, 800 P.2d 175, 180 (1990), abrogated on other
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grounds by Harte ix State, 116 Nev. 1054, 1072, 13 P.3d 420, 432 (2000))).
Therefore, the district court did not err in denying this claim.'
Sixth, Eubanks claimed that trial counsel was ineffective for
failing to call an expert on methamphetamine abuse, as the witnesses
against him were methamphetamine abusers. Further, the expert could
have testified that as an abuser himself, Eubanks could not have
possessed malice aforethought prior to the murder. We disagree. Given
that multiple witnesses provided similar accounts that Eubanks stabbed
Frasher to death and admitted to doing so to enforce a drug debt, he failed
to demonstrate that trial counsel acted unreasonably in not seeking out
such an expert, see id., or that he was prejudiced by the failure to
introduce this testimony. Therefore, the district court did not err in
denying this claim.
Seventh, Eubanks claimed that trial and appellate counsel
were ineffective for failing to object to the court illegally sentencing him.
He asserted that the district court sentenced him to a term greater than
the maximum sentence for attempted robbery with the use of a deadly
weapon. According to the second amended judgment of conviction, the
district court sentenced Eubanks to two consecutive terms of four to ten
years in prison for attempted robbery with the use of a deadly weapon. As
these sentences were within the proscribed statutory limits, see NRS
'To the extent that Eubanks claimed that trial counsel was
ineffective for not introducing this testimony during the guilt phase of
trial, he failed to demonstrate prejudice given the overwhelming evidence
of guilt.
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193.330(1)(a)(2); NRS 193.165; NRS 200.380, counsel were not deficient in
failing to challenge the sentences. Therefore, the district court did not err
in denying this claim.
Having considered Eubanks' contentions and concluding that
no relief is warranted, 2 we
ORDER the judgment of the district court AFFIRMED. 3
/ 4a thItol teli
Hardesty
J.
S aitta. Pickering
cc: Hon. Robert W. Lane, District Judge
Charles Shea Eubanks
Attorney General/Carson City
Nye County District Attorney
Nye County Clerk
Eubanks also claimed that the cumulative effect of counsel's errors
2
entitles him to relief. As we have found no error, there is nothing to
cumulate. Therefore, no relief is warranted on this claim.
3 We
have reviewed all documents that appellant has submitted to
the clerk of this court in this matter, and we conclude that no relief based
upon those submissions is warranted. To the extent that appellant has
attempted to present claims or facts in those submissions which were not
previously presented in the proceedings below, we have declined to
consider them in the first instance.
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