Sullivan (Marquion) v. State

 First, Sullivan claims that trial counsel was ineffective for
failing to challenge the admission of his confession to police officers and
request defense jury instructions, specifically an instruction regarding his
confession, a mere-presence instruction, and a lesser-included-offense
instruction for false imprisonment. At an evidentiary hearing on the
petition, trial counsel testified that he did not challenge the confession
because Sullivan claimed that no conversation took place. Sullivan
testified at the hearing and maintained that he said nothing to the police
when he was arrested. Trial counsel also testified that he chose not to ask
for a jury instruction regarding mere presence because the defense theory
was that Sullivan was not present at all, and an instruction on mere
presence would have been contrary to that defense. Further, trial counsel
believed that an instruction for false imprisonment was not applicable
based on the facts adduced at trial. Lastly, trial counsel testified that the
given jury instruction regarding Sullivan's confession informed the jury
that it could disregard any portion it did not believe and he believed no
additional instruction was necessary.
The district court found that trial counsel's decision not to file
a motion to suppress Sullivan's confession did not fall below an objective
standard of reasonableness as Sullivan testified that a statement never
occurred. The district court further found that, by failing to offer defense
jury instructions, trial counsel was not deficient because he believed the
jury instructions were sufficient and clearly set forth his defense. The
district court's findings are supported by substantial evidence and are not
clearly wrong, and Sullivan has not demonstrated that the district court
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erred as a matter of law. Therefore, we conclude the district court did not
err by denying these claims.'
Second, Sullivan contends that trial counsel was ineffective for
failing to file a written opposition to the State's motion to admit evidence
of prior bad acts. At the evidentiary hearing, trial counsel acknowledged
that no written opposition was filed but claimed that the parties
stipulated to an oral response. Trial counsel further testified that he
argued vigorously against the admission of such evidence at a pretrial
hearing and that he raised everything at the hearing that he would have
raised in a written response. The district court found that trial counsel
was allowed to orally present his opposition and legal position, and it
concluded that trial counsel was not deficient and that Sullivan failed to
demonstrate how a written opposition would have changed the outcome.
The district court's findings are supported by substantial evidence and are
not clearly wrong, and Sullivan has not demonstrated that the district
court erred as a matter of law. Therefore, we conclude the district court
did not err by denying this claim.
Third, Sullivan claims that trial counsel was ineffective for
failing to raise the issue that Sullivan's due process and equal protection
rights were violated when insufficient evidence was presented to the
grand jury. The claim raised below, that Sullivan's due process rights
"While Sullivan mentioned counsel's failure to file a motion to sever,
he failed to present any argument or authority on the issue. Therefore, we
decline to address this claim. See Maresca v. State, 103 Nev. 669, 673, 748
P.2d 3, 6 (1987) ("It is appellant's responsibility to present relevant
authority and cogent argument; issues not so presented need not be
addressed by this court.").
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were violated because insufficient evidence was presented to the grand
jury, was dismissed by the district court as untimely and waived. The
ineffective-assistance-of-counsel claim before this court was not a part of
Sullivan's petition for post-conviction relief or the supplements to his
petition and was not addressed in the district court's order. Therefore, we
need not consider this claim. 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.
Fourth, Sullivan contends that trial counsel was ineffective
based on a conflict of interest counsel had with a witness at trial. The
district court found that Sullivan knowingly and voluntarily waived the
conflict and that the witness was canvassed outside the presence of the
jury to establish that his testimony would not be improperly influenced.
The district court further found that Sullivan failed to establish any
prejudice and denied the claim. The district court's findings are supported
by substantial evidence and are not clearly wrong, and Sullivan has not
demonstrated that the district court erred as a matter of law. To the
extent that Sullivan argues that counsel was ineffective for not raising the
conflict prior to trial, thereby forcing Sullivan to waive the conflict mid-
trial, this issue was not presented in his petition or supplements and was
not addressed in the district court's order. Therefore, we need not
consider this claim. See id.
Fifth, Sullivan claims that trial counsel was ineffective for
failing to challenge the sufficiency of the evidence presented at trial and
file a motion to set aside the jury verdict based on insufficient evidence.
The district court considered the claim raised below, that Sullivan's
conviction violated his constitutional rights because there was insufficient
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evidence of his guilt, and found that the claim was barred by the doctrine
of the law of the case as the issue of insufficient evidence was raised on
direct appeal and rejected. The ineffective-assistance-of-counsel claim
before this court was not a part of Sullivan's petition for post-conviction
relief or the supplements to his petition and was not addressed in the
district court's order. Therefore, we need not consider this claim. See id.
Sullivan next argues that he is entitled to post-conviction
relief due to the cumulative errors of trial counsel. Where, as here,
appellant fails to demonstrate any error of counsel, there can be no error
to cumulate We therefore conclude that the district court did not err in
denying this claim.
Having considered Sullivan's claims and concluded that no
relief is warranted, we
ORDER the judgment of the district court AFFIRMED.
J.
Parraguirre
J. J.
cc: Hon. Stefany, Miley, District Judge
Bush & Levy, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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