Winn (Manuel) v. State ( 2013 )

 the inquiry must be shown. Strickland, 466 U.S. at 697. To warrant an
evidentiary hearing, a petitioner must raise claims that are supported by
specific factual allegations that are not belied by the record and, if true,
would entitle him to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686
P.2d 222, 225 (1984).
First, appellant claimed that trial counsel conspired with the
State by revealing privileged attorney-client information to the State.
Appellant failed to demonstrate deficiency or prejudice, as he did not
identify any privileged information that was revealed or allege any specific
facts to support this claim. See id. at 502, 686 P.2d at 225 (holding that no
relief is warranted where petitioner raises "bare' or 'naked' claims for
relief, unsupported by any specific factual allegations"). Thus, the district
court did not err in denying this claim.
Second, appellant claimed that trial counsel failed to file a
pretrial petition for a writ of habeas corpus. Appellant failed to
demonstrate prejudice, as he did not explain what issues counsel should
have raised. See id. Thus, the district court did not err in denying this
claim.
Third, appellant claimed that trial counsel failed to file any
pretrial motions on appellant's behalf despite appellant's requests.
Appellant failed to demonstrate deficiency or prejudice. The record repels
his claim that counsel failed to file any motions, and he did not explain
which motions counsel should have filed and how they would have
changed the outcome of the trial. See id. Thus, the district court did not
err in denying this claim.
Fourth, appellant claimed that trial counsel failed to obtain
formal discovery until four days before trial, and failed to object to the
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appellant's prosecution by the Clark County District Attorney because
appellant's sister worked there. Appellant failed to demonstrate
deficiency or prejudice, as he failed to support these claims with any
specific facts that would entitle him to relief. See id. Therefore, the
district court did not err in denying these claims.
Fifth, appellant claimed that trial counsel failed to investigate
defense witnesses, call any witnesses to testify for the defense, or present
a defense. Appellant failed to demonstrate deficiency or prejudice, as he
did not identify any defense witnesses or the nature of their testimony.
See id. Therefore, the district court did not err in denying these claims.
Sixth, appellant claimed that trial counsel failed to interview
police officers and alibi witnesses or cross-examine the victim about his
inconsistent identification testimony, which prevented appellant from
pursuing a misidentification defense. Appellant failed to demonstrate
prejudice, as two detectives identified appellant as the person who was
fighting with the victim, and a store clerk, who was familiar with
appellant, identified him as the person who stabbed the victim. In light of
his identification by three different witnesses, appellant could not show a
reasonable probability that a misidentification defense would have been
successful. Thus, the district court did not err in denying this claim.
Seventh, appellant claimed that trial counsel failed to
investigate the store clerk and Detective Mendoza and thus failed to
discover that the clerk had mental health issues and was taking
medication and that Detective Mendoza made prior inconsistent
statements. Appellant also claimed that counsel should have objected to
Detective Mendoza's "lies." Appellant failed to demonstrate deficiency or
prejudice. His claim regarding the clerk's mental illness and use of
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medications is purely speculative without any factual support. See id. As
to his claim regarding Detective Mendoza, trial counsel cross-examined
the detective about any inconsistent statements that he made as to
whether he saw the stabbing. Appellant failed to identify any further
questions that counsel should have asked or explain how any further
questioning would have affected the outcome of the trial. See id.Therefore, the district court did not err in denying this claim.
Eighth, appellant claimed that trial counsel failed to request
an instruction on a lesser-included offense. Appellant appeared to assert
that counsel should have requested a charge of battery as a lesser-
included offense to the charge of battery with the use of a deadly weapon.
Appellant failed to demonstrate prejudice. Given the jury's verdict, the
jury necessarily found that the elements of battery with the use of a
deadly weapon were proven beyond a reasonable doubt. Therefore, the
district court did not err in denying this claim.
Ninth, appellant claimed that trial counsel coerced him into
involuntarily waiving his right to testify at trial. Appellant failed to
demonstrate deficiency and prejudice. The record shows that appellant
indicated a desire to testify, counsel strongly advised him not to testify,
and appellant accepted counsel's advice and chose not to testify. There is
no indication that his decision was involuntary or coerced. Therefore, the
district court did not err in denying this claim.
Tenth, appellant claimed that trial counsel failed to object to
the victim's coerced testimony. Appellant failed to demonstrate deficiency
or prejudice. The victim testified at trial that Detective Mendoza told him
that he would be sentenced to prison for three years if he failed to appear
and testify at trial, and Detective Mendoza testified that he did not make
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such a statement. There was no basis for counsel to object, as it was for
the jury to determine the weight and credibility of the testimony. See
Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also Ennis v.
State, 122 Nev. 694, 706, 137 P.3d 1095, 1103 (2006) ("Trial counsel need
not lodge futile objections to avoid ineffective assistance of counsel
claims."). Therefore, the district court did not err in denying this claim.
Eleventh, appellant claimed that trial counsel failed to
investigate and present evidence at trial that appellant's fingerprints and
DNA were not found on the knife. Appellant failed to demonstrate
deficiency or prejudice. Trial counsel cross-examined an investigator
about whether the knife was tested for fingerprints and DNA, and the
investigator stated that it was tested only for DNA and none was found.
Appellant failed to explain what further actions counsel should have
taken. See Hargrove, 100 Nev. at 502-03, 686 P.2d at 225. Further, he
could not demonstrate prejudice in light of the clerk's and the victim's
testimony that they saw appellant with the knife. Therefore, the district
court did not err in denying this claim.
Twelfth, appellant claimed that trial counsel withheld from
him the State's notice of habitual criminal treatment until sentencing.
Appellant asserted that he would have testified as to his innocence at trial
if he had known that he was facing a habitual criminal sentence if
convicted. Appellant failed to demonstrate prejudice, as he did not show a
reasonable probability of a different outcome at trial had he testified.
Therefore, the district court did not err in denying this claim.
Thirteenth, appellant claimed that trial counsel refused to
review the presentence investigation report with him or provide it to him
before sentencing, which prevented appellant from correcting inaccurate
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information in the presentence investigation report. Appellant failed to
demonstrate deficiency or prejudice, as he did not identify any inaccurate
information in the report or explain how the information affected his
sentence. See id. Therefore, the district court did not err in denying this
claim.
Next, appellant claimed that he received ineffective assistance
of appellate counsel on direct appeal. 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). 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). Both components of the inquiry
must be shown, Strickland, 466 U.S. at 697.
First, appellant claimed that appellate counsel was ineffective
for failing to argue on appeal that the victim's testimony should have been
precluded because trial counsel was unable to sufficiently prepare for it.
Appellant failed to demonstrate deficiency or prejudice, as the State
properly noticed the victim as a witness and counsel was aware prior to
trial that the victim could testify. Therefore, the district court did not err
in denying this claim.
Second, appellant claimed that appellate counsel failed to
argue that the State's notice of intent to seek an indictment did not
provide appellant with the date, time, and location of the grand jury
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hearing, but rather only informed him to call the district attorney's office
to obtain such information. Appellant claimed that this prevented him
from testifying before the grand jury. Appellant failed to demonstrate
deficiency or prejudice, as the notice was sufficient. See NRS 172.241(2).
Therefore, the district court did not err in denying this claim.
Third, appellant claimed that appellate counsel failed to argue
that the photo identification of appellant at the grand jury hearing was
impermissible, that the State improperly questioned witnesses and
admitted hearsay evidence at the grand jury hearing, that Detective
Mendoza's declaration of, arrest and arrest report conflicted with his
testimony at the grand jury hearing, and that there was insufficient
evidence to support his indictment. Appellant failed to demonstrate
prejudice, as he was ultimately convicted by a jury and thus could not
demonstrate a reasonable probability that these issues regarding the
grand jury proceedings would have been successful on appeal. See United
States v. Mechanik, 475 U.S. 66, 70 (1986) (holding that any error in grand
jury proceedings was harmless where defendants were found guilty
beyond a reasonable doubt at trial); Lisle v. State, 114 Nev. 221, 224-25,
954 P.2d 744, 746-47 (1998) (citing Mechanik). Therefore, the district
court did not err in denying these claims.
Fourth, appellant claimed that appellate counsel was
ineffective for failing to raise certain meritorious issues on appeal, for
having a conflict of interest with appellant, for failing to adequately
communicate with appellant, and for failing to federalize the issues on
appeal. Appellant failed to demonstrate deficiency or prejudice, as he
failed to support these claims with any specific facts that would entitle
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him to relief. See Hargrove, 100 Nev. at 502-03, 686 P.2d at 225.
Therefore, the district court did not err in denying these claims.
Next, appellant claimed that: (1) the State improperly sought
a continuance of the preliminary hearing in order to seek a grand jury
indictment; (2) the State withheld evidence by failing to produce the
weapon at the grand jury proceedings; (3) the steak knife was not a deadly
weapon; (4) the State presented false testimony that the knife was not
tested for fingerprints; (5) the State and police officers coerced the victim's
testimony, and the district court abused its discretion by allowing the
victim to testify at trial; (6) the district court erred by forcing appellant to
proceed at trial with counsel who had a conflict of interest; (7) the
indictment, jury instructions, and convictions violated double jeopardy;
(8) the Clark County District Attorney should have been recused from
prosecuting appellant's case because appellant's sister worked there;
(9) the district court erred by failing to hold evidentiary hearings on
various motions; (10) the district court coerced him into involuntarily
waiving his right to testify at trial; (11) his sentences are disproportionate
to the offenses; (12) the district court was biased against appellant and
ignored inaccuracies in the presentence investigation report; (13) the State
failed to submit proof of appellant's prior convictions, and the district
court abused its discretion at sentencing by failing to ensure that the
State submitted adequate records of those felony convictions; and
(14) appellant is actually innocent of the offenses. These claims were
waived as they should have been raised on direct appeal, and appellant
failed to demonstrate good cause for his failure to do so. NRS 34.810(1)(b).
Therefore, we conclude that the district court did not err in denying these
claims.
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Accordingly, having considered appellant's contentions and
concluded that they are without merit, we
ORDER the judgment of the district court AFFIRMED.
J.
cc: Hon. Doug Smith, District Judge
Manuel Winn
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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