McMahon (Johnny) v. State ( 2013 )

 First, McMahon contended that trial counsel was ineffective
because he failed to file a pretrial motion to sever the counts involving
different victims. This court has already determined that these counts
were properly joined because they were part of a common scheme or plan.
See McMahon v. State, Docket No. 52071 (Order of Affirmance, October 16,
2009). Accordingly, we conclude that trial counsel was not ineffective for
failing to file the pretrial motion and the district court did not err by
denying this claim.
Second, McMahon contended that trial counsel was ineffective
because he failed to challenge the State's flight instruction. We agree with
the district court that there was sufficient evidence for a jury to
reasonably infer flight. See Carter v. State, 121 Nev. 759, 770, 121 P.3d
592, 599 (2005) (explaining when it is proper to give a flight instruction).
Accordingly, we conclude that trial counsel was not ineffective and the
district court did not err by denying this claim.
Third, McMahon contended that trial counsel was ineffective
because he failed to file a motion to dismiss the criminal complaint based
on the absence of a probable cause determination within forty-eight hours.
Our review of the record reveals that McMahon failed to establish by a
preponderance of the evidence that a magistrate did not make a probable
cause determination within forty-eight hours. See Gerstein v. Pugh, 420
U.S. 103, 120 (1975) (approving of informal modes of proof based on
hearsay and written testimony); see also Means, 120 Nev. at 1012, 103
P.3d at 33 (explaining that petitioner must prove the factual allegations
underlying his claim by a preponderance of the evidence). Furthermore,
McMahon failed to establish resulting prejudice. See Powell v. State, 113
Nev. 41, 46, 930 P.2d 1123, 1126 (1997) (concluding that a Gerstein
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violation may be harmless). Accordingly, we conclude that the district
court did not err by denying this claim.
Fourth, McMahon contended that trial counsel was ineffective
for failing to challenge prosecutorial misconduct. Because McMahon fails
to make out a colorable claim of prosecutorial misconduct, we conclude
that he failed to demonstrate that trial counsel was ineffective and the
district court did not err by denying this claim.
Fifth, McMahon contended that trial counsel was ineffective
for failing to challenge the consensual search of his residence because he
did not secure the standard operating procedures for such a search or
properly investigate the conduct of law enforcement. McMahon fails to
explain how further investigation would have changed the outcome at
trial. We conclude that the district court did not err by denying this claim
because McMahon failed to establish deficiency or resulting prejudice with
regard to this contention.
Sixth, McMahon contended that trial counsel was ineffective
for failing to secure and present certain witnesses at trial. McMahon
failed to satisfy his burden of proving that there was a reasonable
probability that this testimony would have affected the outcome at trial.
Accordingly, we conclude that the district court did not err by denying this
claim.
Seventh, McMahon contended that trial and appellate counsel
were ineffective for failing to challenge mischaracterizations by the State
throughout the proceedings. These allegations were conclusory. We
conclude that McMahon failed to establish counsel's deficiency or resulting
prejudice in the proceedings below and the district court did not err by
denying this claim.
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Eighth, McMahon contended that appellate counsel was
ineffective for failing to discuss his direct appeal with him. McMahon
failed to explain what claims appellate counsel omitted and did not satisfy
his burden of proving that any omitted issue would have a reasonable
probability of success on appeal. See Kirksey v. State, 112 Nev. 980, 998,
923 P.2d 1102, 1114 (1996). Accordingly, we conclude that the district
court did not err by denying this claim.
Ninth, McMahon contended that the cumulative effect of
counsel's deficiencies resulted in prejudice. Because there was no
deficiency to cumulate, we conclude that no relief is warranted.
Having considered McMahon's contentions and concluded that
the district court did not err by denying his petition, we 2
ORDER the judgment of the district court AFFIRMED.
Hardesty
( PCIA-34 J.
Parraguirre
2 We have reviewed all documents that McMahon has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that McMahon has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance. See Davis
v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 (1991), overruled on other
grounds by Means, 120 Nev. at 1012-13, 103 P.3d at 33.
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cc: Hon. David B. Barker, District Judge
Nguyen & Lay
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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