Silva (Art) v. State

 Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). Here,
the district court conducted an evidentiary hearing, heard testimony from
Silva, several witnesses on his behalf, and his former defense counsel,
Tammy M. Riggs, and determined that Riggs provided "effective
assistance" at sentencing and that Silva "failed to prove prejudice, that is,
that the Court would have sentenced Petitioner differently had Ms. Riggs
done those things Petitioner alleges she should have." See Hill v.
Lockhart, 474 U.S. 52, 58-59 (1985); see also Strickland v. Washington,
466 U.S. 668, 687-88, 694 (1984); Kirksey v. State, 112 Nev. 980, 987, 923
P.2d 1102, 1107 (1996). Although the district court's order denying the
petition did not specifically address counsel's failure to object to
statements made by the prosecutor at the sentencing hearing, Silva failed
to demonstrate prejudice because this court determined in resolving his
direct appeal that he was not entitled to relief based on prosecutorial
misconduct. See Silva v. State, Docket No. 53680 (Order of Affirmance,
August 25, 2009). We conclude that the district court did not err by
rejecting Silva's ineffective-assistance claims.
Second, Silva contends that his right to due process and a fair
hearing were violated by the district court's overruling of his objection to
Riggs' testimony regarding his counseling records and her tactical decision
not to offer them for consideration at the sentencing hearing. According to
Riggs, the records indicated, among other things, that Silva had an anger
problem. Silva's post-conviction counsel objected to Riggs' testimony on
hearsay grounds and informed the district court that she had "never seen
these records" or "heard of an anger issue." In overruling the objection,
the district court noted that counsel would be allowed to cross-examine
Riggs about the counseling records, which she did. On appeal, Silva
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claims that evidence pertaining to his counseling records was suspect and
should be redacted from the record. We disagree. The discretion to admit
testimony at an evidentiary hearing on a post-conviction habeas petition
lies with the district court. See generally Brown v. State, 110 Nev. 846,
852, 877 P.2d 1071, 1075 (1994). Here, the subject of the counseling
records arose during the State's questioning of Riggs about her tactical
decisions in preparing for Silva's sentencing hearing. Silva fails to provide
any persuasive argument or legal authority in support of his claim for
relief, and we conclude that the district court did not abuse its discretion
by allowing Riggs' testimony. Accordingly, we
ORDER the judgment of the district court AFFIRMED. 2
' J.
Hardesty
P C0.4.31.
Parraguirre
cc: Hon. Patrick Flanagan, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
2 We
note that although Silva's counsel certified that the fast track
statement complies with the requirements of NRAP 32(a)(5) because it
was prepared using 14-point Times New Roman font, the font in the brief
appears smaller than represented. We remind Silva's counsel that
misrepresentations in the certificate of compliance can be a basis for the
imposition of sanctions. See NRAP 3C(h)(3), (n); NRAP 28.2; NRAP 32(e).
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