Adkins (Frederick) v. State ( 2013 )

 petitioner would not have pleaded guilty and would have insisted on going
to trial). 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 if supported by substantial evidence and not clearly erroneous 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 claimed his counsel had a conflict of interest
because his first counsel threatened to physically harm appellant.
Appellant's first counsel testified at the evidentiary hearing that he and
appellant got into an argument, during which counsel threatened to harm
appellant. Following that argument, a different attorney represented
appellant for the district court proceedings, including the preliminary
hearing, plea negotiations, plea canvass, and sentencing hearing. The
second counsel testified at the evidentiary hearing that he and appellant
had a fine working relationship. Under these circumstances, appellant
failed to demonstrate an actual conflict of interest. See Clark v. State, 108
Nev. 324, 326, 831 P.2d 1374, 1376 (1992). Moreover, the collapse of the
initial attorney-client relationship was cured by the substitution of the
second counsel. Therefore, the district court did not err in denying this
claim.
Second, appellant claimed that his counsel failed to challenge
the amended information. Appellant failed to demonstrate that his
counsel's performance was deficient or that he was prejudiced. Appellant
made only a bare claim that counsel should have challenged the amended
information and did not identify any grounds upon which such a challenge
would have been successful. See Hargrove v. State, 100 Nev. 498, 252-53,
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686 P.2d 222, 225 (1984). Therefore, the district court did not err in
denying this claim.
Third, appellant claimed that his counsel was ineffective for
failing to pursue an insanity defense. Appellant failed to demonstrate
that his counsel's performance was deficient or that he was prejudiced.
Prior to appellant's plea, appellant was evaluated and determined to be
competent. Counsel testified that he reviewed the evaluation and did not
find anything to support an insanity defense. Moreover, appellant did not
demonstrate that he was in a delusional state during the crime such that
he could not know or understand the nature and capacity of his acts or
could not appreciate the wrongfulness of his acts. See Finger v. State, 117
Nev. 548, 576, 27 P.3d 66, 84-85 (2001). Accordingly, appellant failed to
demonstrate a reasonable probability of a different outcome had counsel
sought to present an insanity defense. Therefore, the district court did not
err in denying this claim.
Fourth, appellant claimed that his counsel should have moved
to dismiss the charges due to the State's suborning perjury from witnesses
at the preliminary hearing. Appellant failed to demonstrate that his
counsel's performance was deficient or that he was prejudiced. Appellant
made only a bare claim that witnesses committed perjury at the
preliminary hearing and provided no evidence that the State suborned
perjury. Bare claims are insufficient to demonstrate that a petitioner is
entitled to relief. See Hargrove, 100 Nev. at 252-53, 686 P.2d at 225.
Therefore, the district court did not err in denying this claim. 2
2Appellant also claimed that his appellate counsel was ineffective for
failing to argue on direct appeal that the State suborned perjury at the
preliminary hearing. Given the lack of evidence to support the underlying
claim, appellant failed to demonstrate a reasonable likelihood of success
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Fifth, appellant claimed that his counsel was ineffective for
failing to investigate appellant's mental health or argue that he was
incompetent. Appellant failed to demonstrate that counsel's performance
was deficient or that he was prejudiced. Counsel testified that he had
appellant evaluated for competency and that the evaluation showed that
appellant was competent. Counsel testified that appellant was able to
help in his defense and appeared to understand the proceedings. 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)). Appellant failed to
demonstrate a reasonable probability of a different outcome had counsel
conducted further investigation into appellant's mental health. Therefore,
the district court did not err in denying this claim.
Sixth, appellant claimed that his counsel coerced his plea and
forced him to enter a plea under duress. Appellant failed to demonstrate
that his counsel's performance was deficient or that he was prejudiced.
Appellant acknowledged in the guilty plea agreement and at the plea
canvass that he entered his guilty plea voluntarily and did not act under
duress or coercion. Therefore, the district court did not err in denying this
claim.
Seventh, appellant claimed that his counsel failed to
investigate witnesses. Appellant failed to demonstrate that his counsel's
performance was deficient or that he was prejudiced. Counsel testified at
the evidentiary hearing that he attempted to subpoena potential witnesses
for the preliminary hearing, but two of appellant's requested witnesses
. . . continued
on appeal had counsel argued that the State suborned perjury. Kirksey v.
State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996).
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testified for the State and four others did not attend the hearing. Counsel
testified that after the hearing, appellant indicated that he wished to
accept a plea offer and that further investigation into witnesses ceased.
Appellant failed to demonstrate that this was an unreasonable decision by
counsel or a reasonable probability of a different outcome had counsel
conducted further investigation into witnesses. Therefore, the district
court did not err in denying this claim.
Eighth, appellant claimed that his counsel did not present
mitigation evidence at the sentencing hearing or argue for a lower
sentence. Appellant failed to demonstrate that his counsel's performance
was deficient or that he was prejudiced. Counsel testified that he
attempted to demonstrate that the court should give appellant a lesser
sentence due to appellant's mental health problems. Appellant failed to
demonstrate a reasonable probability of a different outcome at the
sentencing hearing had counsel provided further evidence or arguments
for leniency. Therefore, the district court did not err in denying this claim.
Ninth, appellant claimed that his counsel was ineffective for
failing to challenge the improper notice of intent to seek sentencing as a
habitual criminal. Appellant asserted the notice was improper because
the enhancement was listed as a charge in the information and a later
corrected notice was filed less than 15 days before the sentencing hearing.
Appellant failed to demonstrate that his counsel's performance was
deficient or that he was prejudiced. Counsel stated at the evidentiary
hearing that he was aware of a potential defect in the notice, but did not
want to ruin a favorable plea agreement by arguing the notice was
improper. As appellant was aware in a timely manner of the State's
intent to seek adjudication as a habitual criminal and appellant had
sufficient prior felonies to be eligible for such a sentence, he failed to
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argued the notice was improper. Therefore, the district court did not err
in denying this claim.
Tenth, appellant claimed that his counsel was ineffective for
failing to argue that adjudication as a habitual criminal by a judge rather
than a jury is unconstitutional. Appellant failed to demonstrate either
deficiency or prejudice because this court has held a defendant is not
entitled to a jury determination on a habitual criminal allegation. See
O'Neill v. State, 123 Nev. 9, 16, 153 P.3d 38, 43 (2007). Therefore, the
district court did not err in denying this claim.
Next, appellant claimed that his appellate counsel was
ineffective. 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, 112 Nev. at 998, 923 P.2d at 1114. Both
components of the inquiry must be shown. Strickland, 466 U.S. at 697.
Appellate counsel is not required to raise 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 claimed that his appellate counsel was
ineffective for failing to raise facts on appeal. Appellant failed to
demonstrate deficiency or prejudice for this claim as he failed to identify
what facts counsel failed to address on appeal. See Hargrove, 100 Nev. at
252-53, 686 P.2d at 225. Therefore, the district court did not err in
denying this claim.
Second, appellant claimed that his appellate counsel was
ineffective for failing to prepare an adequate record for the appeal and
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demonstrate that his counsel's performance was deficient or that he was
prejudiced. Appellant did not identify what portions of the record his
counsel failed to include for the direct appeal and he failed to demonstrate
a reasonable likelihood of success on appeal had counsel discussed the
direct appeal with him. See id. Therefore, the district court did not err in
denying this claim.
Third, appellant claimed that his appellate counsel failed to
argue on appeal that appellant was incompetent. Appellant failed to
demonstrate that his counsel's performance was deficient or that he was
prejudiced. Appellant was examined prior to entry of his plea and
determined to be competent, and appellant failed to demonstrate that
reasonable counsel would have argued on direct appeal that appellant was
actually incompetent. Appellant failed to demonstrate a reasonable
likelihood of success for this claim as he did not demonstrate that he did
not have the ability to consult with his attorney with a reasonable degree
of rational understanding and that he did not have a rational and factual
understanding of the proceedings against him. See Melchor-Gloria, 99
Nev. at 179-80, 660 P.2d at 113. Therefore, the district court did not err in
denying this claim.
Next, appellant claimed that the trial court should not have
sentenced him as a habitual criminal, should not have sentenced him
when he was under the influence of antipsychotic medication, allowed
hearsay, did not properly canvas him on his plea, and did not consider the
totality of the circumstances surrounding his plea. Appellant also claimed
his sentence was disproportionate to the crimes and the State committed
malicious prosecution. These claims were not based on an allegation that
appellant's plea was involuntarily or unknowingly entered or that his plea
was entered without effective assistance of counsel, and therefore, were
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stemming from a guilty plea. See NRS 34.810(1)(a). Therefore, the
district court did not err in denying these claims.
Having concluded that appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED. 3
Hardesty
Parraguirre '4`` Cherry
cc: Hon. Robert W. Lane, District Judge
Frederick William Adkins
Nye County District Attorney
Attorney General/Carson City
Fifth District Court Clerk
3 We have reviewed all documents that appellant has submitted in
proper person 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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