Giordano (John) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA
JOHN BATTISTA GIORDANO, No. 67521
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
JAN 1.4 2016
ORDER OF AFFIRMANCE
This is an appeal from an order of the district court denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; J. Charles Thompson, Senior Judge.
On appeal from the denial of his October 7, 2013, petition,
appellant John Giordano argues that the district court erred in denying
his claims of ineffective assistance of trial 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 such that there is a reasonable
probability, that, but for counsel's errors, the outcome of the proceedings
would have been different. 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). Both components of the inquiry
must be shown, Strickland, 466 U.S. at 697, and the petitioner must
demonstrate the underlying facts by a preponderance of the evidence,
Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We give
deference to the district court's factual findings if supported by substantial
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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).
Giordano first argues that counsel was ineffective for not
objecting to jury instruction no. 12 as an incorrect statement of law
regarding possession of a stolen vehicle. Giordano has failed to
demonstrate deficiency or prejudice. Giordano was not convicted of
possession of a stolen vehicle, so the claim is moot. Insofar as Giordano
intends his argument to apply to the conviction for grand larceny auto, he
has failed to provide this court with a copy of the jury instructions, which
precludes our review of his claims. 1 See Greene v. State, 96 Nev. 555, 558,
612 P.2d 686, 688 (1980) ("The burden to make a proper appellate record
rests on appellant."). However, evenS assuming that the jury was
instructed as Giordano claims, it was not an incorrect statement of law as
it limited the jury to considering only relevant evidence. See Dugan v.
Gotsopoulos, 117 Nev. 285, 288, 22 P.3d 205, 207 (2001).
Giordano next argues that counsel was ineffective for failing to
object to the admission of evidence regarding the value of the stolen
motorhome. Giordano has failed to demonstrate deficiency or prejudice. A
petitioner is not entitled to relief on claims that are bare or belied by the
record. See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225
1 Forthe same reason, we do not consider Giordano's suggestion that
counsel's failure to object to jury instruction no. 6 was an example of
ineffective assistance of counsel. And while Giordano appears to have at
least quoted jury instruction no. 12 in its entirety in his Fast Track
Statement, he has not quoted any portion of jury instruction no. 6.
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(1984). Counsel did object to the admission of the Kelly Blue Book pages
and NADA documentation, including the detective's and victim's
testimony regarding the latter. Thus the facts underlying his claim are
belied by the record. Further, Giordano's claim is bare insofar as he does
not identify any other part of the victim's testimony that counsel should
have objected to, especially given that "[a] party to a lawsuit may testify
as to the value of her personal or real property." Dugan, 117 Nev. at 288,
22 P.3d at 207.
Giordano next argues that counsel was ineffective for failing to
object to the admission of certain evidence on the ground of prosecutorial
misconduct. Giordano has failed to demonstrate deficiency or prejudice.
On the fourth day of trial, the State disclosed that it had "yesterday"
requested from the Department of Motor Vehicles information regarding
the license plate that was found on the recovered motorhome, and that it
had only requested the information because of the tenor of questioning
during trial. Counsel objected to the admission of the records on various
grounds, but not for prosecutorial misconduct. "Our evaluation begins
with the 'strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Means, 120 Nev. at 1011,
103 P.3d at 32 (quoting Strickland, 466 U.S. at 689). Giordano makes only
a bare statement that the State engaged in misconduct, and despite
bearing the burden of proof, he did not examine trial counsel regarding
this issue at the evidentiary hearing. He has thus failed to demonstrate
that counsel was ineffective.
Giordano next argues that counsel was ineffective for failing to
investigate the background of or request physical or psychological
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examinations of the victim. Giordano has failed to demonstrate deficiency
or prejudice. A petitioner claiming counsel did not conduct an adequate
investigation bears the burden of showing what a more thorough
investigation would have yielded or how it would have affected the
outcome of the trial. Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538
(2004). Giordano's bare claim fails to state what additional background
investigation counsel should have undertaken or to provide any authority
suggesting that counsel could have successfully sought an examination of
the victim. Further, Giordano does not state what the results of such
investigations would have been. 2
Giordano next argues that counsel was ineffective for failing to
investigate Giordano's history of mental illness with an eye toward
developing a defense of insanity or that he lacked specific intent.
Giordano has failed to demonstrate deficiency or prejudice. Counsel
testified that he did not question Giordano's mental state at the time of
the crimes because he was able to recall events and his recollection was
not inconsistent with the physical evidence. Giordano has not
2 Giordano complains that the district court failed to address his
motion to produce victim impeachment information, and he requests
remand for the district court to address the motion and to make
evidentiary findings. Because this claim was not raised until his reply, it
is not properly before this court. See NRAP 3C(e)(3) ("The reply must be
limited to answering matters set forth in the Fast Track Response.").
Further, the "motion" below was not properly before the district court as it
was made within Giordano's reply to the State's response to his petition.
See EDCR 2.20, 3.20. Accordingly, we do not reach the merits of this
claim
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demonstrated that this was objectively unreasonable. Further, Giordano
has presented no evidence that he was insane or unable to form the
necessary specific intent at the time of the crimes. 3
Giordano next argues that counsel was ineffective for failing to
investigate Giordano's criminal history, which was used to adjudicate him
an habitual criminal. Giordano has failed to demonstrate deficiency or
prejudice. Counsel testified that he discussed Giordano's prior convictions
with him and that Giordano did not indicate there were any inaccuracies.
Further, Giordano has failed to allege or demonstrate that any of the
convictions were inappropriately used to adjudicate him an habitual
criminal.
Giordano next argues that counsel was ineffective for failing to
challenge law enforcement's inventory search of the motorhome and to file
a motion to sever. Giordano's bare claims have failed to demonstrate
deficiency or prejudice. Giordano provides no basis on which counsel could
have challenged either the search or the joinder of crimes. He also fails to
state how, the suppression of any evidence resulting from the search would
have affected the outcome of trial or presented any argument suggesting
that a motion to sever would have been successful.
Finally, Giordano argues that the cumulative errors of counsel
warrant reversal of his convictions. Even assuming that multiple
3 Giordano complains that the district court failed to address his
motion for a psychiatric evaluation at the State's expense. For the same
reasons as with his victim-impeachment motion, we do not reach the
merits of this claim.
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deficiencies in counsel's performance may be cumulated to establish
prejudice, see McConnell v. State, 125 Nev. 243, 259, 212 P.3d 307, 318
(2009), Giordano has failed to demonstrate any deficiencies to cumulate.
For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED.
it
Hardesty
te4.4; J.
TA_
J.
aitta
J.
Pickering
cc: Chief Judge, The Eighth Judicial District Court
Hon. J. Charles Thompson, Senior Judge
Bailus Cook & Kelesis
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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