Talley (Omar) v. State

 (1984) (adopting the test in Strickland). Both components of the inquiry
must be shown. Strickland, 466 U.S. at 697.
First, appellant claimed that trial counsel was ineffective for
failing to investigate and obtain surveillance video from a clothing store
and information regarding a cab company, which would have revealed that
appellant was not with the victim on two occasions. Appellant failed to
demonstrate that he was prejudiced, as he did not demonstrate that any
such evidence would have been material to the charges of pandering of a
child, pandering by furnishing transportation to a child, or child abuse and
neglect. Therefore, the district court did not err in denying this claim.
Second, appellant claimed that trial counsel was ineffective for
failing to move for dismissal of the charges at the preliminary hearing and
at trial because there was no evidence corroborating the victim's
testimony. Appellant failed to demonstrate that counsel's performance
was deficient or that he was prejudiced. Contrary to appellant's assertion,
the juvenile victim was not an accomplice to the crimes of pandering and
child abuse and neglect, and no corroboration was required. See NRS
175.291; NRS 201.300(1)(a); NRS 201.340(1); NRS 200.508; Ford v. State,
127 Nev. „ 262 P.3d 1123, 1128 (2011). Appellant also appeared to
claim that counsel should have sought to dismiss the charges because
there was no evidence that the victim actually engaged in prostitution.
However, this claim lacks merit, as the crime of pandering is "an inchoate
crime of solicitation," not actual prostitution. See NRS 201.300(1)(a);
Ford, 127 Nev. at , 262 P.3d at 1130, 1133. Therefore, the district court
did not err in denying this claim.
Third, appellant claimed that trial counsel was ineffective for
failing to adequately advise appellant as to whether he should testify.
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Appellant failed to demonstrate that counsel's performance was deficient
or that he was prejudiced. Appellant failed to explain what advice counsel
gave him and how it was improper. See Hargrove v. State, 100 Nev. 498,
502-03, 686 P.2d 222, 225 (1984). Furthermore, this court concluded on
direct appeal that the district court properly admonished appellant and
that appellant acknowledged that he understood the admonishments.
Talley v. State, Docket No. 56228 (Order of Affirmance, March 17, 2011).
Therefore, appellant failed to demonstrate that he was not properly
informed of his right to testify. Accordingly, the district court did not err
in denying this claim.
Fourth, appellant claimed that trial counsel was ineffective for
failing to provide case law in support of his objection to the cross-section of
the jury pool. Appellant failed to demonstrate that he was prejudiced.
Appellant failed to demonstrate a prima facie violation of the fair cross-
section requirement. See Duren v. Missouri, 439 U.S. 357, 364 (1979);
Williams v. State, 121 Nev. 934, 939-40, 125 P.3d 627, 631 (2005).
Notably, appellant provided no information to demonstrate systematic
exclusion of minorities. See Williams, 121 Nev. at 939-40, 125 P.3d at 631.
Therefore, appellant failed to demonstrate a reasonable probability of a
different outcome at trial had counsel raised further arguments regarding
this issue. Accordingly, the district court did not err in denying this claim.
Next, appellant claimed that he received ineffective assistance
of appellate counsel. 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,
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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 challenge the jury pool on appeal. Appellant failed to
demonstrate that counsel's performance was deficient or that he was
prejudiced because, as discussed above, he failed to demonstrate a prima
facie violation of the fair cross-section requirement. Therefore, the district
court did not err in denying this claim.
Second, appellant claimed that appellate counsel was
ineffective for failing to challenge the sufficiency of the evidence on direct
appeal. Appellant failed to demonstrate that counsel's performance was
deficient or that he was prejudiced. The victim's testimony provided
sufficient evidence for a rational juror to infer that appellant engaged in
pandering of a child, pandering by furnishing transportation to a child,
and child abuse and neglect. See Jackson v. Virginia, 443 U.S. 307, 319
(1979); McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).
Specifically, the victim testified that appellant convinced her to leave her
home and engage in prostitution and she would not have done it
otherwise, and that appellant drove the victim to a location for
prostitution. NRS 201.300(1)(a); NRS 201.340(1); NRS 200.508. To the
extent that appellant argues that the victim's testimony was inconsistent
and incredible, the weight and credibility of testimony is for the jury to
decide. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981).
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Because appellant failed to demonstrate a reasonable probability of
success had appellate counsel challenged the sufficiency of the evidence on
direct appeal, the district court did not err in denying this claim.
Finally, appellant claimed that appellate counsel was
ineffective for failing to file a supplemental fast track statement on direct
appeal. He appeared to assert that appellate counsel should have raised
all of the underlying above-mentioned claims on direct appeal. Appellant
failed to demonstrate that he was prejudiced, as he did not demonstrate
that any of these claims had a reasonable probability of success on appeal.
Therefore, the district court did not err in denying this claim. Accordingly,
we
ORDER the judgment of the district court AFFIRMED.
Gibbons
Douglas
Saitta
cc: Hon. Jennifer P. Togliatti, District Judge
Omar J. Talley
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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