Hicks, Jr. (Milo) v. State ( 2013 )

 2010, Hicks filed another petition for a writ of habeas corpus, which the
district court denied as untimely, because it was filed more than a year
after the judgment of conviction was filed, and successive. This court
reversed, concluding that because Hicks' Lozada petition was his appeal
deprivation remedy, his second petition was timely and not successive.
Hicks v. State, Docket No. 56486 (Order of Reversal and Remand, April 6,
2011). After remand, the district court denied Hicks' petition on the
merits,' and this appeal followed. 2
Hicks argues that the district court erred by denying his
claims that trial counsel was ineffective. To prove ineffective assistance of
trial counsel, a petitioner must demonstrate that counsel's performance
was deficient in that it fell below an objective standard of reasonableness,
and resulting prejudice in that there is a reasonable probability that, but
for counsel's errors, the outcome of the proceedings would have been
'While the district court's order states that Hicks' claims of
ineffective assistance of trial counsel are time-barred, it also addresses the
merits of Hicks' claims. Hicks' claims were not time-barred, see id., and
the district court appropriately reached the merits of his claims.
2 The State contends that Hicks' claims are successive because his
first petition raised some claims of ineffective assistance of counsel which
were addressed by the district court. However, this did not preclude Hicks
from raising additional claims of ineffective assistance of trial and Lozada
counsel in the instant petition. See generally NRAP 4(c)(4) (providing that
"[a] habeas corpus petition filed after a direct appeal conducted under [the
rule that replaced the Lozada remedy] shall not be deemed a 'second or
successive petition' under NRS 34.810(2)"); In re Olabode, 325 F.3d 166,
171 (3d Cir. 2003) (discussing the majority approach that a post-conviction
petition is not successive when it follows a petition which raised a valid
appeal deprivation claim).
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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). Both components of the inquiry must be shown.
Strickland, 466 U.S. at 697. We give deference to the district court's
factual findings 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).
Hicks argues that counsel was ineffective for failing to object to witness
bolstering, object to the prosecutor's use of a "golden rule" argument and
injection of personal opinion during closing argument, seek the recusal of
the trial judge, and move for a mistrial. The district court conducted an
evidentiary hearing and denied these claims because it concluded that
they were strategic decisions of counsel and Hicks failed to demonstrate
that the verdict would have otherwise been different. We conclude that
the district court did not err by denying these claims.
Hicks also argues that the district court erred by denying his
claims that trial counsel was ineffective for failing to timely file a notice of
appeal and that the Lozada remedy is not adequate to cure the deprivation
of a direct appeal. Because Hicks was provided an adequate appeal
deprivation remedy pursuant to Lozada, we conclude that the district
court did not err by denying these claims. See Evitts v. Lucey, 469 U.S.
387, 399 (1985) (expressing approval of a state court's use of a
"postconviction attack of the trial judgment as the appropriate remedy for
frustrated right of appeal" (internal quotation marks omitted)).
Finally, Hicks argues that the district court erred by denying
his claim that counsel's errors, considered cumulatively, warrant relief.
Because we agree with the district court that counsel was not ineffective,
there are no errors to cumulate.
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Having concluded that Hicks' contentions are without merit,
we 3
ORDER the judgment of the district court AFFIRMED.
fACtt
Hardesty
Parraguirre '" Cherry
cc: Hon. Elissa F. Cadish, District Judge
Matthew D. Carling
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 Hicksalso argues that the district court erred by denying his claims
that trial counsel was ineffective for failing to move for a directed verdict
on the conspiracy charge or object to the conspiracy instruction, and that
appellate counsel was ineffective for failure to raise "meritorious issues on
appeal." Hicks fails to support these claims with any cogent argument or
relevant authority and therefore we decline to consider them. Maresca v.
State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
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