Hampton (Anthony) v. State ( 2013 )

 preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012, 103
P.3d 25, 33 (2004). To warrant an evidentiary hearing, a petitioner must
raise claims that are supported by specific factual allegations that are not
belied by the record and, if true, would entitle him to relief. Hargrove v.
State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).
First, appellant argues that his trial counsel was ineffective
for failing to file a pretrial petition for a writ of habeas corpus arguing for
dismissal of the charges due to delay of the arraignment. Appellant failed
to demonstrate that his counsel's performance was deficient or that he was
prejudiced. Counsel made an oral motion to dismiss based on the delay,
which the court denied, and appellant fails to demonstrate that a
competent attorney would have filed a petition after the court's denial of
the oral motion. Moreover, If] allure to bring a defendant before a
magistrate without unnecessary delay does not warrant reversal absent a
showing of prejudice to the defendant's constitutional rights." Elvik v.
State, 114 Nev. 883, 895, 965 P.2d 281, 289 (1998) (citing Huebner v. State,
103 Nev. 29, 32, 731 P.2d 1330, 1333 (1987)). Appellant failed to
demonstrate prejudice to his constitutional rights due to the delay.
Accordingly, appellant failed to demonstrate a reasonable probability of a
different outcome had counsel filed a pretrial petition arguing for
dismissal based on delay of the arraignment. Therefore, the district court
did not err in denying this claim without conducting an evidentiary
hearing.
Second, appellant argues that trial counsel was ineffective for
failing to investigate and interview a woman who was alleged to have
conspired with appellant to commit the robbery. Appellant fails to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced. Appellant speculates that the woman might have
SUPREME COURT provided helpful testimony if she had been located, but bare claims are
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insufficient to demonstrate that a petitioner is entitled to relief. Hargrove,
100 Nev. at 502-03, 686 P.2d at 225. Appellant fails to demonstrate a
reasonable probability of a different outcome at trial had counsel
investigated this potential witness. See Molina v. State, 120 Nev. 185,
192, 87 P.3d 533, 538 (2004). Therefore, the district court did not err in
denying this claim without conducting an evidentiary hearing.
Third, appellant argues that his counsel was ineffective for
failing to communicate with him, as appellant asserts counsel was not
aware of the importance of the coconspirator and her potential testimony.
Appellant fails to demonstrate that his trial counsel's performance was
deficient or that he was prejudiced. Appellant only makes a bare claim
that his counsel did not communicate with him and the trial transcript
does not support appellant's claim that counsel was not aware of the
coconspirator's contribution to appellant's version of events. In addition,
as discussed previously, appellant makes only a bare allegation that the
coconspirator would have provided helpful testimony, which is insufficient
to demonstrate a reasonable probability of a different outcome had counsel
had further discussions with appellant regarding that potential witness.
Therefore, the district court did not err in denying this claim without
conducting an evidentiary hearing.
Next, appellant argues that the district court erred in denying
his claims of ineffective assistance of appellate counsel without conducting
an evidentiary hearing. To prove ineffective assistance of appellate
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 the omitted issue would have a reasonable
probability of success on appeal. Kirksey v. State, 112 Nev. 980, 998, 923
P.2d 1102, 1114 (1996). Both components of the inquiry must be shown.
SUPREME COURT Strickland, 466 U.S. at 697. Appellate counsel is not required to raise
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every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 751
(1983). Rather, appellate counsel will be most effective when every
conceivable issue is not raised on appeal. Ford v. State, 105 Nev. 850, 853,
784 P.2d 951, 953 (1989).
First, appellant argues that his appellate counsel was
ineffective for failing to properly assert on appeal that he was prejudiced
by pre-arraignment delay. Appellant fails to demonstrate that his
counsel's performance was deficient or that he was prejudiced. As noted
by appellant, counsel did raise this issue on direct appeal, but the claim
was rejected by this court. Hampton v. State, Docket No. 49887 (October
16, 2008). Further, as discussed on direct appeal, appellant's
constitutional rights were not violated by the delay. See Sheriff v.
Berman, 99 Nev. 102, 105-06, 659 P.2d 298, 300 (1983). Appellant fails to
demonstrate a reasonable likelihood of a different outcome on appeal had
counsel raised further arguments regarding this issue. Therefore, the
district court did not err in denying this claim without conducting an
evidentiary hearing.
Second, appellant argues that his appellate counsel was
ineffective for failing to assert there was insufficient evidence of
conspiracy to commit robbery. Appellant fails to demonstrate that his
counsel's performance was deficient or that he was prejudiced. Evidence
presented at trial demonstrated that the alleged coconspirator watched
the victim prior to the robbery, stopped her vehicle near appellant and
waited while appellant robbed the victim at knifepoint, and then drove
away with appellant. This was sufficient evidence that appellant and the
alleged coconspirator coordinated their actions towards robbing the victim.
See Thomas v. State, 114 Nev. 1127, 1143, 967 P.2d 1111, 1122 (1998)
(concluding that a coordinated series of acts furthering the underlying
SUPREME COURT offense is sufficient to infer the existence of an agreement, and thus is
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sufficient evidence to convict a defendant of conspiracy). Therefore, the
district court did not err in denying this claim without conducting an
evidentiary hearing.
Next, appellant argues that the errors of trial and appellate
counsel cumulatively amount to ineffective assistance of counsel. As
appellant fails to demonstrate deficiency or prejudice for any of his claims,
he fails to demonstrate that cumulative errors amount to ineffective
assistance of counse1. 2
Having concluded appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.
/dGu.
Hardesty
Parraguirre Cherry
cc: Hon. Michael Villani, District Judge
Law Office of Betsy Allen
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2 Appellant asserts that the district court did not address this claim
in its order. However, we conclude that the district court's order was
sufficient to allow this court to review appellant's claim on appeal.
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