Silva (Francisco) v. State ( 2014 )

 First, appellant argues that his trial counsel was ineffective
for failing to investigate and present evidence that the victim and her
family fabricated the allegations out of concern that appellant would move
from the family home, bringing his wife and children with him. Appellant
fails to demonstrate that his trial counsel's performance was deficient or
that he was prejudiced. Counsel challenged the victim's version of events
on cross-examination. Counsel also questioned the victim's mother
regarding her concerns that appellant would leave with his wife, who was
also the victim's sister, and their children. In addition, appellant testified
at trial and had the opportunity to inform the jury of these issues.
Appellant fails to demonstrate a reasonable probability of a different
outcome at trial had counsel investigated this issue as he did not
demonstrate that there was evidence counsel could have discovered to
support this claim. 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.
Second, appellant argues that his trial counsel was ineffective
for failing to fully challenge the charges against him, as appellant asserts
that the evidence was insufficient to prove sexual assault because there
was no physical evidence of sexual activity and the only evidence came
from the testimony of the victim. Appellant fails to demonstrate that his
trial counsel's performance was deficient or that he was prejudiced. We
have repeatedly held that the uncorroborated testimony of a victim is
sufficient to uphold a conviction for sexual assault when the victim
testifies with some particularity regarding the incident. See Mejia v.
State, 122 Nev. 487, 493 & n.15, 134 P.3d 722, 725 & n.15 (2006); Gaxiola
v. State, 121 Nev. 638, 648, 119 P.3d 1225, 1232 (2005); State v. Gomes,
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112 Nev. 1473, 1481, 930 P.2d 701, 706 (1996). Here, the victim testified
that appellant touched her inappropriately on multiple occasions and had
also forced her to have sexual intercourse. In addition, the victim's
brother witnessed appellant in bed with the 12-year-old victim. Appellant
fails to demonstrate a reasonable probability of a different outcome had
counsel argued that there was insufficient evidence to support the
charges. Therefore, the district court did not err in denying this claim
without conducting an evidentiary hearing.
Next, appellant argues that the district court erred by denying
his petition because it did not conduct a full and fair evidentiary hearing
as required by Mack v. Cupp, 564 F.2d 898 (9th Cir. 1977). The district
court concluded that appellant did not demonstrate that any of his claims
were not belied by the record and would have entitled him to relief if true,
and therefore, that he was not entitled to an evidentiary hearing. See
Hargrove, 100 Nev. at 502-03, 686 P.2d at 225.
On appeal, appellant only raises the two claims discussed
previously and fails to discuss any of the additional claims raised below or
why the district court erred in declining to conduct an evidentiary hearing
for those claims. Therefore, appellant fails to meet his burden to
demonstrate that the district court should have conducted an evidentiary
hearing over those remaining claims. See 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."). Accordingly, appellant fails to demonstrate
that the district court erred by denying the petition without conducting an
evidentiary hearing. Moreover, appellant fails to demonstrate that an
evidentiary hearing is necessary in order for a district court to fully and
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fairly consider all of a petitioner's claims. See Mack, 564 F.2d at 901; see
also United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (a
petitioner is not entitled to an evidentiary hearing when his allegations
"do not state a claim for relief' (internal quotations omitted)). We
therefore conclude that appellant is not entitled to relief and we
ORDER the judgment of the district court AFFIRMED.
J.
Pickering
k CIA A c J.
Parrag-uirre
Saitta
cc: Hon. Valerie Adair, District Judge
The Kice Law Group, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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