Farrey (Benjamin) v. State ( 2014 )

 inquiry must be shown. Strickland, 466 U.S. at 697. To warrant an
evidentiary hearing, a petitioner must raise claims supported by specific
factual allegations that, if true and not repelled by the record, would
entitle him to relief. Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222,
225 (1984).
First, appellant argues that counsel was ineffective for failing
to request a competency evaluation. Appellant has failed to demonstrate
deficiency or prejudice. Appellant points largely to physical limitations
that he had, including being paraplegic and having undergone a procedure
that impaired his ability to speak. Such limitations do not constitute
specific facts that should have caused objectively reasonable counsel to
doubt appellant's ability to understand the nature of the criminal charges
against him or aid and assist counsel in his defense. See Hernandez v.
State, 124 Nev. 978, 992, 194 P.3d 1235, 1244 (2008), overruled on other
grounds by Armenta-Carpio v. State, 129 Nev. , 306 P.3d 395 (2013).
Appellant also points to his having amnesia regarding the events of the
day of the murder, but this alone would not implicate appellant's
competency. See French v. State, 95 Nev. 586, 588-89, 600 P.2d 218, 219-
20 (1979). We therefore conclude that the district court did not err in
denying this claim without an evidentiary hearing.
Second, appellant argues that counsel was ineffective for
failing to adequately investigate appellant's case prior to advising him to
enter a guilty plea. Specifically, appellant argues that counsel should
have explored "potential scenarios or defenses" that would have
exculpated him and perhaps inculpated the victim. Appellant has failed to
demonstrate deficiency or prejudice. Appellant has not demonstrated that
counsel was objectively unreasonable in failing to delve into the victim's
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history of violence in order to inculpate her where the victim had defensive
wounds but appellant did not and where he does not allege that anything
in the victim's past would have caused him to reasonably believe that she
"could kill or seriously harm him" so as to justify the murder. Culverson v.
State, 106 Nev. 484, 487, 797 P.2d 238, 239 (1990). Moreover, as appellant
claims that the victim had been violent with him, he knew of her alleged
history of violence and thus fails to demonstrate a reasonable probability
that, but for counsel's failure to investigate the victim's past violence, he
would have insisted on going to trial. Appellant also fails to indicate what
a more thorough investigation into his leap or fall from his balcony would
have revealed such that he did not demonstrate prejudice. See Molina v.
State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004). We therefore conclude
that the district court did not err in denying this claim without an
evidentiary hearing.
Third, appellant argues that counsel was ineffective for failing
to ensure that the guilty plea was entered into knowingly, voluntarily, and
with an understanding of the consequences of the plea. Appellant has
failed to demonstrate deficiency or prejudice. Appellant acknowledged in
his guilty plea agreement and during his plea colloquy that he was
entering his plea voluntarily and without duress and that he understood
the elements of the charges and the sentencing ranges he would face. See
State v. Freese, 116 Nev. 1097, 1104, 13 P.3d 442, 447 (2000) (holding that
we apply a totality-of-the-circumstances test in reviewing the validity of a
guilty plea). Further, appellant's claim that he was misinformed by the
court as to his maximum potential sentence is belied by the record. We
therefore conclude that the district court did not err in denying this claim
without an evidentiary hearing.
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Fourth, appellant argues that counsel was ineffective for
failing to object when the sentencing court failed to elaborate on each of
the five sentencing factors set forth in NRS 193.165(1). Appellant has
failed to demonstrate prejudice. Insofar as he is arguing that such an
objection would have resulted in a more favorable standard of review on
direct appeal, he fails to make any cogent argument to support such an
assertion. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
Further, this court held on appellant's direct appeal from his judgment of
conviction that the record supported the sentence imposed, Farrey v. State,
Docket No. 56903 (Order of Affirmance, November 18, 2011), that holding
is the law of the case, Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797,
798-99 (1975), and accordingly, appellant fails to demonstrate a
reasonable probability of a different outcome had counsel insisted that the
district court address each sentencing factor individually. We therefore
conclude that the district court did not err in denying this claim without
an evidentiary hearing.
Finally, appellant argues that counsel was ineffective for
failing to present sufficient mitigating evidence at the sentencing hearing.
Appellant has failed to demonstrate deficiency or prejudice. Appellant
raises bare claims that counsel should have called additional witnesses
where he fails to state what additional information those witnesses would
have offered beyond what was already in the sentencing memorandum
and its attachments. Further, the State had informed the district court of
appellant's "miniscule" prior criminal history, which was confirmed by the
presentence investigation report, and appellant's parents, through their
mitigation letters to the court, suggested that perhaps the victim was the
aggressor. Where appellant had twice been convicted of battering the
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victim, he fails to state how stressing his lack of other significant criminal
history or that the victim could be to blame would have resulted in a
reasonable probability of a different outcome at sentencing. We therefore
conclude that the district court did not err in denying this claim without
an evidentiary hearing.
Having considered the foregoing arguments and concluding
that appellant's claims lack merit, we
ORDER the judgment of the district court AFFIRMED.
Hardesty
Douglas 1 7# J.
J.
Cherry
cc: Hon. Kathleen E. Delaney, District Judge
Langford McLetchie LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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