Moe (Michael) v. Warden ( 2013 )

 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, Moe contends that the district court erred by denying
his claims that counsel was ineffective for failing to investigate and cross-
examine witnesses to determine whether they heard him confess. Moe
asserts that, if the witnesses heard him confess, counsel was ineffective for
failing to question them regarding why the confession was not in their
written reports, and if the witnesses did not hear him confess, counsel was
ineffective for failing to present their testimony and video footage which
would demonstrate that they would have heard the confession had it
occurred. The district court denied these claims because it determined
that counsel made a reasonable tactical decision not to investigate
whether the witnesses heard the confession and Moe failed to demonstrate
that the verdict would have otherwise been different. See State v. Powell,
122 Nev. 751, 759, 138 P.3d 453, 458 (2006) (tactical decisions must be
supported by thorough investigations or "reasonable decisions that
particular investigations are unnecessary"); Doleman v. State, 112 Nev.
843, 848, 921 P.2d 278, 280-81 (1996) (an attorney's tactical decisions are
virtually unchallengeable). The record supports these determinations,
and we conclude that the district court did not err by denying these
claims. See Lyons, 100 Nev. at 432-33, 683 P.2d at 505.
Second, Moe contends that the district court erred by denying
his claims that counsel was ineffective for failing to object or request a
continuance regarding the district court's order that there were only
sixteen minutes left of trial and for presenting a minimal defense to
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comply with the court's order. The district court denied these claims
because it found credible counsel's testimony that he understood the
district court's comment to refer to the time left in the day, he did not feel
constrained by the comment, and he would have presented more evidence
had he deemed it necessary. We conclude that the district court did not
err by denying these claims.
Third, Moe contends that the district court erred by denying
his claims that counsel was ineffective for failing to prepare and encourage
him and his girlfriend to testify. The district court denied these claims
because it found credible counsel's testimony that Moe did not want either
of them to testify and because it concluded that Moe failed to demonstrate
that the verdict would have otherwise been different. The record supports
the district court's determinations and we conclude that it did not err by
denying these claims.
Fourth, Moe contends that the district court erred by denying
his claim that counsel was ineffective for failing to introduce evidence
which would have supported claims made in the opening statement that
he did not enter the business with intent to steal. Because the record
demonstrates that this evidence, which consisted of a sales advertisement
and casino receipt, was not indicative of Moe's intent and would not have
changed the outcome at trial, we conclude that the district court did not
err by denying this claim.
Fifth, Moe contends that the district court erred by denying
his claims that counsel was ineffective for failing to present a theory of the
defense instruction and for arguing jury nullification. The district court
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denied these claims because it concluded that the jury was properly
instructed under the law and counsel made a strategic decision regarding
which strategy to present. Although Moe has not provided each jury
instruction for our review, the record indicates that the jury was
instructed regarding intent related to burglary; Moe does not suggest what
additional instructions counsel should have offered and fails to
demonstrate that the verdict would have otherwise been different. We
conclude that the district court did not err by denying these claims.
Sixth, Moe contends that the district court erred by denying
his claim that counsel was ineffective for failing to contest the state's
decision to seek habitual criminal adjudication. Moe contends that the
prosecutor promised not to seek habitual criminal charges but did so as
retaliation for Moe exercising his right to trial, and he would have pleaded
guilty but for the prosecutor's promise that no habitual criminal charges
would be filed. The district court denied this claim because it concluded
that counsel did not have a valid basis to contest the filing of the notice
and Moe's claim that he would have otherwise pleaded guilty was belied
by the record. The record supports the district court's determinations and
we conclude that it did not err by denying this claim.
Seventh, Moe contends that the district court erred by denying
his claim that counsel was ineffective for failing to object, investigate, and
move for a continuance after the prosecutor suggested at sentencing that
Moe's friend planned to sell the stolen merchandise. The district court
found credible counsel's testimony at the evidentiary hearing that he did
not think an objection was warranted and his strategy was to focus on the
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stale and nonviolent nature of Moe's prior convictions. Moe fails to
demonstrate that his sentence would have otherwise been different. We
conclude that the district court did not err by denying this claim.
Having considered Moe's contentions and concluded that they
lack merit, we
ORDER the judgment of the district court AFFIRMED.
J.
cc: Hon. Brent T. Adams, District Judge
Mary Lou Wilson
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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