the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 

P.3d 1164, 1166 (2005). 

Appellant first argues that the district court erred by 

dismissing his claim that counsel was ineffective for not objecting to the 

admission of a victim impact letter, which referenced charges that had 

been dismissed pursuant to the plea negotiations, and the prosecutor's 

argument concerning that evidence. Counsel testified at the evidentiary 

hearing that she did not object to the victim impact evidence because she 

believed the letter was admissible under the plea agreement, as the 

prosecution was allowed to argue about the dismissed charges. While we 

cautioned the State against the use of that evidence on direct appeal, we 

cannot say that appellant suffered prejudice even assuming counsel 

should have objected to the evidence. The record shows that the 

sentencing court focused on the nature of the offense—robbery with the 

use of a firearm—appellant's alcohol and drug problem, and his criminal 

history, which included at least two felony convictions and absconding 

from parole. The district court's factual findings are supported by 

substantial evidence, and we conclude that appellant failed to 

demonstrate that the district court erred by dismissing this claim. 

Appellant next argues that the district court erred by 

dismissing his claim that counsel was ineffective for not presenting 

mitigation evidence including his military records showing that he was 

seriously wounded, resulting in post-traumatic stress disorder (PTSD), a 

letter from his mother, evidence showing that he had been continuously 

employed, and a psychological evaluation. Counsel advised the sentencing 

court that appellant served two tours in the military and he suffered 

injuries from an explosion during the Gulf War; he became• addicted to 

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alcohol; his father's death significantly affected him; and that he is in 

counseling. Also, the sentencing court was aware of the presentence 

investigation report (PSI), which noted appellant's PTSD and bipolar 

diagnoses. Further, counsel testified that appellant insisted on proceeding 

to sentencing despite not having received his military records. 

Additionally, counsel testified that, with appellant's consent, she did not 

present appellant's mother's letter because it was "rambling" and the PSI 

explained his childhood. Counsel also explained that appellant did not 

inform her that he was continuously employed and that in fact he had 

"quite a few periods of unemployment." Finally, counsel testified that she 

did not present the psychological evaluation because of the many 

discrepancies between what appellant told the mental health provider, 

what appellant had told her, and what she later learned from appellant's 

military records. Although appellant disputed aspects of counsel's 

testimony at the evidentiary hearing, matters of credibility are left to the 

district court. The district court's factual findings are supported by 

substantial evidence, and we conclude that appellant failed to 

demonstrate that the district court erred by dismissing this claim. 1 

'Appellant argues that the district court erred by dismissing his 

claim that appellate counsel was ineffective for not challenging his 

sentence as excessive under the Eighth Amendment. However, he did not 

raise this claim in his post-conviction petition below and therefore we will 

not consider it. See Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 

(1991) (observing that this court need not consider arguments raised on 

appeal that were not presented to the district court in the first instance), 

overruled on other grounds by Means v. State, 120 Nev. 1001, 103 P.3d 25 

(2004). 

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Having considered appellant's arguments and concluded that 

no relief is warranted, we 

ORDER the judgment of the district court AFFIRMED. 2 

Pickering 

J. 

J. 

ek.x.1 

Parragurirre 

cc: Hon. Scott N. Freeman, District Judge 

Karla K. Butko 

Attorney General/Carson City 

Washoe County District Attorney 

Washoe District Court Clerk 

2Despite counsel's verification that the fast track statement complies 

with applicable formatting requirements, the fast track statement does 

not comply with NRAP 32(a)(4) because it does not have 1-inch margins on 

all four sides. See NRAP 3C(h)(1). We caution counsel that future failure 

to comply with Nevada Rules of Appellate Procedure when filing briefs 

with this court may result in the imposition of sanctions. See NRAP 

3C(n); NRAP 28.2(b). 

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