Hidalgo, III (Luis) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
LUIS ALONSO HIDALGO, III, No. 67640
Appellant,
vs.
THE STATE OF NEVADA,
SLED
Respondent. MAY 1 1 2016
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying
appellant's postconviction petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Valerie Adair, Judge.
Appellant contends that the district court erred by denying his
claims of ineffective assistance of counsel. To prove ineffective assistance
of counsel, a petitioner must demonstrate that counsel's performance was
deficient in that it fell below an objective standard of reasonableness, and
resulting prejudice. 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); see Kirksey v. State, 112 Nev. 980, 998,
923 P.2d 1102, 1114 (1996) (applying Strickland to appellate counsel). 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 contends that the district court erred by
denying his claim that trial counsel were ineffective for failing to tender
appropriate instructions regarding second-degree murder. Specifically,
appellant challenges the instructions relating to co-conspirator liability
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and second-degree felony murder. Regarding the co-conspirator liability
instructions, appellant failed to demonstrate that the instructions given at
trial were inaccurate. See Bolden v. State, 121 Nev. 908, 923, 124 P.3d
191, 201 (2005) (holding that "vicarious coconspirator liability may be
properly imposed for general intent crimes only when the crime in
question was a 'reasonably foreseeable consequence' of the object of the
conspiracy"). To the extent appellant argues that second-degree murder is
not a general intent crime pursuant to Ho v. Carey, 332 F.3d 587, 592 (9th
Cir. 2003), his reliance on Ho is misplaced because Ho addressed
California law. Regarding second-degree felony murder, even assuming
that the jury was not properly instructed pursuant to Labastida v. State,
115 Nev. 298, 307, 986 P.2d 443, 449 (1999), appellant failed to
demonstrate that trial counsel were deficient or that he was prejudiced
given the evidence presented at trial and the theories of vicarious liability
alleged in the charging document. Therefore, we conclude that the district
court did not err by denying this claim. 1
Second, appellant contends that the district court erred by
denying his claim that trial counsel were ineffective for failing to challenge
the deadly-weapon enhancement based on Moore v. State, 117 Nev. 659,
663, 27 P.3d 447, 450 (2001) (holding that "it is improper to enhance a
sentence for conspiracy using the deadly weapon enhancement."). Because
the deadly weapon enhancement was not applied to the conspiracy
conviction, appellant failed to demonstrate that counsel was ineffective.
To the extent appellant challenges the instruction given at trial based on
the same reasons, we conclude the district court did not err by
1 For
denying appellant's claim regarding appellate counsel.
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Brooks v. State, 124 Nev. 203, 180 P.3d 657 (2008), no relief is warranted
because the instruction complied with Brooks; moreover, appellant has
challenged the instruction for the first time on appeal. Therefore, we
conclude that the district court did not err by denying this claim.
Third, appellant contends that the district court erred by
denying his claim that trial counsel were ineffective for failing to proffer
an instruction regarding the admissibility of co-conspirator statements
that was consistent with the Federal Rules of Evidence, and appellate
counsel was ineffective for failing to argue that the admission of his co-
conspirator's statements violated Crawford v. Washington, 541 U.S. 36, 56
(2004). Appellant failed to demonstrate that the instructions given at trial
were incorrect or that the statements should not have been admitted. See
McDowell v. State, 103 Nev. 527, 529, 746 P.2d 149, 150 (1987) (adopting
the "slight evidence" standard in Nevada); see also Crawford, 541 U.S. at
56 (recognizing that statements made in furtherance of a conspiracy are
nontestimonial); Lilly v. Virginia, 527 U.S. 116, 137 (1999) (recognizing
that statements made in the furtherance of a conspiracy are reliable).
Therefore, he fails to demonstrate that counsel were ineffective.
Accordingly, we conclude that the district court did not err by denying this
claim.
Fourth, appellant contends that the district court erred by
denying his claim that trial counsel were ineffective for failing to seek a
severance during trial to admit evidence that was favorable to him but
unfavorable to his codefendant. We disagree because the trial court did
not decline to admit the evidence based on prejudice to appellant's
codefendant and therefore a severance would not have been granted on
this basis. Because appellant failed to demonstrate that a severance
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would have been granted under the circumstances, trial counsel were not
ineffective. Therefore, we conclude that the district court did not err by
denying this claim.
Fifth, appellant contends that the district court erred by
denying his claim that trial counsel were ineffective for failing to seek a
severance of the solicitation counts. Appellant failed to demonstrate that
a severance would have been granted because the counts were clearly
connected together. See Weber v. State, 121 Nev. 554, 573, 119 P.3d 107,
120 (2005). Therefore counsel were not ineffective. Accordingly, we
conclude that the district court did not err by denying this claim.
Sixth, appellant contends that cumulative error entitles him
to relief. Because we have found no error, there are no errors to cumulate.
Having considered appellant's contentions and concluded that
no relief is warranted, we
ORDER the judgment of the district court AFFIRMED.
J.
Douglas
1-(1 J.
Gibbons
cc: Hon. Valerie Adair, District Judge
Richard F. Cornell
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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