First, McMahon contended that trial counsel was ineffective 

because he failed to file a pretrial motion to sever the counts involving 

different victims. This court has already determined that these counts 

were properly joined because they were part of a common scheme or plan. 

See McMahon v. State, Docket No. 52071 (Order of Affirmance, October 16, 

2009). Accordingly, we conclude that trial counsel was not ineffective for 

failing to file the pretrial motion and the district court did not err by 

denying this claim. 

Second, McMahon contended that trial counsel was ineffective 

because he failed to challenge the State's flight instruction. We agree with 

the district court that there was sufficient evidence for a jury to 

reasonably infer flight. See Carter v. State, 121 Nev. 759, 770, 121 P.3d 

592, 599 (2005) (explaining when it is proper to give a flight instruction). 

Accordingly, we conclude that trial counsel was not ineffective and the 

district court did not err by denying this claim. 

Third, McMahon contended that trial counsel was ineffective 

because he failed to file a motion to dismiss the criminal complaint based 

on the absence of a probable cause determination within forty-eight hours. 

Our review of the record reveals that McMahon failed to establish by a 

preponderance of the evidence that a magistrate did not make a probable 

cause determination within forty-eight hours. See Gerstein v. Pugh, 420 

U.S. 103, 120 (1975) (approving of informal modes of proof based on 

hearsay and written testimony); see also Means, 120 Nev. at 1012, 103 

P.3d at 33 (explaining that petitioner must prove the factual allegations 

underlying his claim by a preponderance of the evidence). Furthermore, 

McMahon failed to establish resulting prejudice. See Powell v. State, 113 

Nev. 41, 46, 930 P.2d 1123, 1126 (1997) (concluding that a Gerstein 

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violation may be harmless). Accordingly, we conclude that the district 

court did not err by denying this claim. 

Fourth, McMahon contended that trial counsel was ineffective 

for failing to challenge prosecutorial misconduct. Because McMahon fails 

to make out a colorable claim of prosecutorial misconduct, we conclude 

that he failed to demonstrate that trial counsel was ineffective and the 

district court did not err by denying this claim. 

Fifth, McMahon contended that trial counsel was ineffective 

for failing to challenge the consensual search of his residence because he 

did not secure the standard operating procedures for such a search or 

properly investigate the conduct of law enforcement. McMahon fails to 

explain how further investigation would have changed the outcome at 

trial. We conclude that the district court did not err by denying this claim 

because McMahon failed to establish deficiency or resulting prejudice with 

regard to this contention. 

Sixth, McMahon contended that trial counsel was ineffective 

for failing to secure and present certain witnesses at trial. McMahon 

failed to satisfy his burden of proving that there was a reasonable 

probability that this testimony would have affected the outcome at trial. 

Accordingly, we conclude that the district court did not err by denying this 

claim. 

Seventh, McMahon contended that trial and appellate counsel 

were ineffective for failing to challenge mischaracterizations by the State 

throughout the proceedings. These allegations were conclusory. We 

conclude that McMahon failed to establish counsel's deficiency or resulting 

prejudice in the proceedings below and the district court did not err by 

denying this claim. 

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(PCIA-34 

Parraguirre 

Hardesty 

J. 

Eighth, McMahon contended that appellate counsel was 

ineffective for failing to discuss his direct appeal with him. McMahon 

failed to explain what claims appellate counsel omitted and did not satisfy 

his burden of proving that any omitted issue would have a reasonable 

probability of success on appeal. See Kirksey v. State, 112 Nev. 980, 998, 

923 P.2d 1102, 1114 (1996). Accordingly, we conclude that the district 

court did not err by denying this claim. 

Ninth, McMahon contended that the cumulative effect of 

counsel's deficiencies resulted in prejudice. Because there was no 

deficiency to cumulate, we conclude that no relief is warranted. 

Having considered McMahon's contentions and concluded that 

the district court did not err by denying his petition, we 2 

ORDER the judgment of the district court AFFIRMED. 

2We have reviewed all documents that McMahon has submitted in 

proper person to the clerk of this court in this matter, and we conclude 

that no relief based upon those submissions is warranted. To the extent 

that McMahon has attempted to present claims or facts in those 

submissions which were not previously presented in the proceedings 

below, we have declined to consider them in the first instance. 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. 

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cc: Hon. David B. Barker, District Judge 

Nguyen & Lay 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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