Hereford (Deshon) v. State ( 2013 )

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).
First, appellant claimed that his trial counsel was ineffective
for failing to object to the jury instructions regarding aiding and abetting
in a conspiracy and the use of a deadly weapon. Appellant failed to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced. Trial counsel did object to the aiding-and-abetting-in-a-
conspiracy instruction. Further, the instruction informing the jury that
evidence of appellant's participation in a conspiracy may be sufficient to
demonstrate that appellant aided and abetted an act in furtherance of the
conspiracy was a proper statement of the law. See Lewis v. State, 100
Nev. 456, 460, 686 P.2d 219, 221-22 (1984). The instructions regarding
the use of a deadly weapon were also correct statements of the law. See
NRS 193.165(6); CuIverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221
(1979). Appellant failed to demonstrate a reasonable probability of a
different outcome at trial had counsel raised additional arguments
regarding these instructions. Therefore, the district court did not err in
denying this claim. 2
2 Appellant also had an additional claim where he asserted his
counsel was ineffective for failing to object to the jury instructions, but
appellant did not highlight any specific instruction in that claim. To the
extent appellant challenged additional instructions other than the ones
listed in his other claims, appellant failed to demonstrate deficiency or
prejudice. Counsel objected to many instructions and offered alternative
instructions, yet the district court denied counsel's objections. Appellant
continued on next page . . .
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kioN
Second, appellant claimed that his trial counsel was
ineffective for failing to attack the creditability of J. Damm. Appellant
failed to demonstrate that his trial counsel's performance was deficient or
that he was prejudiced. Counsel questioned Damm regarding his memory
of the incident, Damm's lack of certainty regarding identification of the
suspects during the police investigation, and Damm's lack of familiarity
with firearms. Appellant failed to demonstrate a reasonable probability of
a different outcome at trial had counsel questioned Damm further.
Therefore, the district court did not err in denying this claim.
Third, appellant claimed that his trial counsel was ineffective
for failing to object during closing arguments. Appellant failed to
demonstrate that he was prejudiced. The challenged statements by the
State were considered on direct appeal under a plain error standard and
this court concluded that the comments did not prejudice appellant.
Hereford v. State, Docket No. 52664 (Order of Affirmance, May 7, 2010).
Appellant failed to demonstrate a reasonable probability of a different
outcome had counsel objected to the challenged statements. Therefore, the
district court did not err in denying this claim.
Fourth, appellant claimed that his trial counsel was ineffective
for failing to argue appellant should only have been convicted of one
robbery count for one of the convenience store robberies. Appellant failed
. . . continued
failed to demonstrate a reasonable probability of a different outcome had
additional objections been raised.
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to demonstrate that his trial counsel's performance was deficient or that
he was prejudiced. The evidence established that there were two clerks
present when appellant committed one of the robberies and one clerk
present at the other store. Therefore, appellant was properly convicted of
three separate robberies. See NRS 200.380; see also Barkley v. State, 114
Nev. 635, 637, 958 P.2d 1218, 1219 (1998); Robertson v. Sheriff, 93 Nev.
300, 302, 565 P.2d 647, 647-48 (1977). Appellant failed to demonstrate a
reasonable probability of a different outcome had counsel argued he
should have received fewer convictions. Therefore, the district court did
not err in denying this claim.
Fifth, appellant claimed that his trial counsel was ineffective
for failing to attack the credibility and methodology of the State's
fingerprint expert. Appellant failed to demonstrate that his trial counsel's
performance was deficient or that he was prejudiced. Counsel did
question the State's expert regarding the methodology used to assess the
fingerprint evidence. Appellant failed to demonstrate a reasonable
probability of a different outcome had counsel asked further questions
regarding the expert's methodology. Therefore, the district court did not
err in denying this claim.
Sixth, appellant claimed that his trial counsel was ineffective
for failing to object to the instruction regarding the voluntariness of a
confession. Appellant failed to demonstrate that his trial counsel's
performance was deficient or that he was prejudiced. Counsel offered an
alternative to the challenged instruction, the district court rejected that
alternative, and this court concluded on direct appeal that the district
court did not abuse its discretion in so doing. Hereford v. State, Docket
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No. 52664 (Order of Affirmance, May 7, 2010). Appellant failed to
demonstrate a reasonable probability of a different outcome at trial had
counsel raised additional objections or proposed additional alternatives to
the challenged instruction. 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 v. State, 112 Nev. 980, 998, 923 P.2d 1102,
1114 (1996). 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).
Appellant claimed that his appellate counsel was ineffective
for failing to include a transcript of his confession to the police in the
record before this court for his direct appeal in order to show that his
confession was involuntary. Appellant failed to demonstrate that he was
prejudiced. Given the overwhelming evidence of guilt presented at trial,
including evidence that appellant's fingerprints and palm prints were
discovered at both robbery sites, surveillance video, and the identification
of appellant by the victims, appellant failed to demonstrate a reasonable
likelihood of success on appeal had counsel included the transcript of his
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confession for this court's review on direct appeal. Therefore, the district
court did not err in denying this claim. 3
Having concluded that appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.
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