by a preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012, 

103 P.3d 25, 33 (2004). 

First, appellant claimed that his trial counsel had a conflict of 

interest and was ineffective because counsel worked for the public 

defender's office and was compensated for expenses at the beginning of the 

case rather than at the end. Appellant failed to demonstrate that 

counsel's performance was deficient or that he was prejudiced. That 

counsel worked for the public defender's office was insufficient to 

demonstrate an actual conflict of interest and appellant provided no 

additional facts which would demonstrate that his counsel had divided 

loyalties. See Clark v. State, 108 Nev. 324, 326, 831 P.2d 1374, 1376 

(1992). Appellant failed to demonstrate it was unreasonable for counsel to 

receive expenses at the beginning of the case or a reasonable probability of 

a different outcome had counsel requested a different payment schedule 

for expenses. Therefore, the district court did not err in denying this 

claim. 

Second, appellant claimed that counsel failed to communicate 

with him regarding trial strategy and failed to investigate appellant's 

theory of the case. Appellant failed to demonstrate that he was 

prejudiced. As appellant confessed to committing the crimes, appellant 

failed to demonstrate a reasonable probability of a different outcome at 

trial had he and counsel had discussions regarding trial strategy. 

Appellant also failed to demonstrate what further investigation into his 

theory of the case would have revealed. See Molina v. State, 120 Nev. 185, 

192, 87 P.3d 533, 538 (2004). Therefore, the district court did not err in 

denying this claim. 

Third, appellant claimed that counsel failed to interview the 

victim or the victim's mother prior to trial. Appellant failed to 

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demonstrate that his counsel's performance was deficient or that he was 

prejudiced. Counsel cross-examined the victim and the victim's mother at 

length during trial and appellant failed to demonstrate reasonable counsel 

would have needed further information from these witnesses for such 

questioning. Given appellant's confession, appellant failed to demonstrate 

a reasonable probability of a different outcome at trial had counsel 

obtained further information from the victim or the victim's mother before 

trial. Therefore, the district court did not err in denying this claim. 

Fourth, appellant claimed that counsel failed to seek a pretrial 

competency evaluation as appellant asserted he used antipsychotic 

medication during trial. Appellant failed to demonstrate that counsel's 

performance was deficient or that he was prejudiced. That appellant used 

medication during trial was insufficient to demonstrate that he did not 

have the ability to consult with his attorney with a reasonable degree of 

rational understanding and that he did not have a factual understanding 

of the proceedings against him. See Melchor-Gloria v. State, 99 Nev. 174, 

179-80, 660 P.2d 109, 113 (1983) (citing Dusky v. United States, 362 U.S. 

402, 402 (1960)). Appellant failed to demonstrate a reasonable probability 

of a different outcome had counsel sought a pretrial competency 

evaluation. Therefore, the district court did not err in denying this claim. 

Fifth, appellant claimed that counsel failed to argue that the 

justice court did not have jurisdiction to consider this matter as it was a 

felony. Appellant failed to demonstrate that counsel's performance was 

deficient or that he was prejudiced. Appellant only appeared before the 

justice court before he waived the preliminary hearing and then all 

remaining proceedings were properly conducted in district court. See NRS 

171.178(1), (4); NRS 171.196(1). Appellant failed to demonstrate a 

reasonable probability of a different outcome at trial had counsel argued 

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no proceedings should have been conducted in the justice court. Therefore, 

the district court did not err in denying this claim. 

Sixth, appellant claimed that counsel should have asserted the 

Iprior-bad-acts evidence was irrelevant, unduly prejudicial, and without 

sufficient proof. Appellant failed to demonstrate that counsel's 

performance was deficient or that he was prejudiced. Counsel objected to 

the admission of the prior bad acts, but the district court overruled the 

objection. Appellant failed to demonstrate a reasonable probability of a 

different outcome had counsel raised further objections as the district 

court conducted a pretrial hearing and concluded that (1) the prior bad 

acts were proven by clear and convincing evidence; (2) the prior bad acts 

were relevant to the crime charged and offered for a purpose other than 

proving the defendant's propensity; and (3) the probative value of the 

evidence was not substantially outweighed by the danger of unfair 

prejudice. See Bigpond v. State, 128 Nev. „ 270 P.3d 1244, 1249-50 

(2012). Therefore, the district court did not err in denying this claim. 

Seventh, appellant claimed that his trial counsel failed to 

argue that he had not been convicted of the prior bad acts and failed to file 

meritorious pretrial motions. Appellant failed to demonstrate that his 

counsel's performance was deficient or that he was prejudiced. A 

conviction is not necessary for a prior bad act to be admissible at trial. See 

Bostic v. State, 104 Nev. 367, 371, 760 P.2d 1241, 1244 (1988). Appellant 

failed to demonstrate a reasonable probability of a different outcome had 

counsel raised further challenges to the admission of the prior-bad-act 

evidence or filed additional pretrial motions. Therefore, the district court 

did not err in denying this claim. 

Eighth, appellant claimed that his counsel waived the 

preliminary hearing without appellant's consent. Appellant failed to 

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demonstrate that counsel waived the preliminary hearing without his 

consent. Appellant failed to demonstrate a reasonable probability of a 

different outcome had he proceeded to a preliminary hearing. Therefore, 

the district court did not err in denying this claim. 

Ninth, appellant claimed that counsel failed to challenge a 

juror who expressed aversion towards sexual-assault allegations as she 

had a friend who had been sexually assaulted in a different country, but 

the government in that country had not prosecuted the assailant. 

Appellant failed to demonstrate that counsel's performance was deficient 

or that he was prejudiced. Counsel questioned the juror and the juror 

stated she could be fair. Appellant failed to demonstrate a reasonable 

probability of a different outcome at trial had counsel taken further 

actions regarding this juror. Therefore, the district court did not err in 

denying this claim. 

Tenth, appellant claimed that counsel failed to object to 

prosecutorial and judicial misconduct. Appellant failed to demonstrate 

that his counsel's performance was deficient or that he was prejudiced. 

Appellant failed to demonstrate that any of the challenged comments by 

the State were not supported by evidence. Greene v. State, 113 Nev. 157, 

177, 931 P.2d 54, 66-67 (1997), receded from on other grounds by Byford v. 

State, 116 Nev. 215, 235, 994 P.2d 700, 713 (2000)). Further, appellant 

failed to identify any judicial misconduct, and therefore, failed to 

demonstrate he was entitled to relief for this claim. See Hargrove v. State, 

100 Nev. 498, 502, 686 P.2d 222, 225 (1984). Appellant failed to 

demonstrate a reasonable probability of a different outcome at trial had 

counsel raised objections of this nature as appellant confessed. Therefore, 

the district court did not err in denying this claim. 

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Eleventh, appellant claimed that counsel was ineffective for 

failing to cross-examine the victim. Appellant failed to demonstrate that 

counsel's performance was deficient or that he was prejudiced. Counsel 

did cross-examine the victim. Given appellant's confession, appellant 

failed to demonstrate a reasonable probability of a different outcome at 

trial had counsel further questioned the victim. Therefore, the district 

court did not err in denying this claim. 

Twelfth, appellant claimed that counsel failed to allow 

appellant to testify at trial. Appellant failed to demonstrate that his 

counsel's performance was deficient or that he was prejudiced. Appellant 

personally informed the district court that he had discussed testifying 

with counsel and had decided not to testify. Appellant failed to 

demonstrate a reasonable probability of a different outcome at trial had he 

testified as he confessed to the police. Therefore, the district court did not 

err in denying this claim. 

Thirteenth, appellant claimed that counsel failed to object to 

the jury instruction regarding substantial bodily harm or argue there was 

insufficient evidence of substantial bodily harm. Appellant failed to 

demonstrate deficiency or prejudice as appellant was not charged with 

causing substantial bodily harm to the victim. Therefore, the district 

court did not err in denying this claim. 

Fourteenth, appellant claimed that counsel was ineffective for 

failing to request instructions on assault, coercion, and sexual seduction. 

Appellant failed to demonstrate counsel's performance was deficient or 

that he was prejudiced. Appellant failed to demonstrate that reasonable 

counsel would have requested instructions regarding uncharged criminal 

conduct in this matter. Appellant failed to demonstrate a reasonable 

probability of a different outcome at trial had counsel requested additional 

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instructions given the substantial evidence of his guilt for the charged 

crimes. Therefore, the district court did not err in denying this claim. 

Fifteenth, appellant claimed that counsel failed to argue there 

was insufficient evidence for counts three and four. Appellant failed to 

demonstrate that counsel's performance was deficient or that he was 

prejudiced. Counsel argued that the victim had fabricated the allegations 

of sexual misconduct and appellant was acquitted of count four, lewdness 

with a child under the age of 14. Regarding count three, a charge of 

sexual assault with a minor under the age of 14, sufficient evidence was 

presented that appellant unlawfully performed oral sex upon the child 

victim given the victim's testimony, her statements to the authorities, and 

appellant's confession. See Crowley v. State, 120 Nev. 30, 35, 83 P.3d 282, 

286 (2004). Appellant failed to demonstrate a reasonable probability of a 

different outcome had counsel made further arguments regarding the 

sufficiency of the evidence. Therefore, the district court did not err in 

denying this claim. 

Sixteenth, appellant claimed that counsel failed to argue that 

appellant was charged with committing the sexual acts on the same day, 

but the victim testified that they occurred on different days. Appellant 

failed to demonstrate that his counsel's performance was deficient or that 

he was prejudiced. Appellant was charged with committing the sexual 

offenses between August 2008 and October 2008, not on only one day. 

Further, time and date are not essential elements of a sexual offense 

against a minor. Cunningham v. State, 100 Nev. 396, 400, 683 P.2d 500, 

502 (1984). Appellant failed to demonstrate a reasonable probability of a 

different outcome had counsel objected to the victim's testimony regarding 

the timing of the sexual assaults. Therefore, the district court did not err 

in denying this claim. 

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771,r1rSeventeenth, appellant claimed that counsel failed to seek 

dismissal of the sexual assault charges based upon the victim's testimony 

that appellant's penis did not completely penetrate her. Appellant failed 

to demonstrate that counsel's performance was deficient or that he was 

prejudiced. The victim testified that appellant penetrated her, but that 

appellant was unable to go in the entire way. This was sufficient 

testimony to demonstrate that appellant committed sexual assault as 

penetration need only be slight. See NRS 200.364(4); NRS 200.366(1). 

Appellant failed to demonstrate a reasonable probability of a different 

outcome had counsel argued that the victim's testimony regarding 

penetration was insufficient to establish that appellant sexually assaulted 

her. Therefore, the district court did not err in denying this claim. 

Eighteenth, appellant claimed that counsel was ineffective for 

instructing him to decline to talk with the Division of Parole and 

Probation as he faced additional charges in Colorado. Appellant failed to 

demonstrate that counsel's performance was deficient or that he was 

prejudiced. Appellant failed to demonstrate that advice from counsel 

regarding possible charges in Colorado was unreasonable. Appellant 

failed to demonstrate a reasonable probability of a different outcome had 

counsel not advised appellant to decline to talk with the division. 

Therefore, the district court did not err in denying this claim. 

Nineteenth, appellant claimed that counsel was ineffective for 

failing to correct an error in the presentence investigation report (PSI), 

failing to argue consecutive sentences were illegal for this matter, failing 

to file a sentencing memorandum, and failing to submit mitigating 

evidence. Appellant failed to demonstrate that counsel's performance was 

deficient or that he was prejudiced. Appellant failed to identify any errors 

contained in the PSI. See Hargrove, 100 Nev. at 502, 686 P.2d at 225. 

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Moreover, it was within the district court's discretion to sentence 

appellant to consecutive terms, see NRS 176.035(1), and appellant failed to 

demonstrate that counsel was ineffective for failing to argue such a 

sentence was illegal. Appellant failed to demonstrate a reasonable 

probability of a different outcome at the sentencing hearing had counsel 

argued that the victim was not injured, appellant was a productive citizen, 

house arrest was more suitable than prison, appellant was cooperative, 

appellant was remorseful, appellant's confession was an attempt to receive 

counseling, concurrent sentences were warranted, or the police officer 

believed appellant was misguided and not a predator. Therefore, the 

district court did not err in denying this claim. 

Next, appellant claimed that his appellate counsel was 

ineffective. 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 had a reasonable 

probability of success on appeal. Kirksey v. State, 112 Nev. 980, 998, 923 

P.2d 1102, 1114 (1996). Both components of the inquiry must be shown. 

Strickland v. Washington, 466 U.S. 668, 697 (1984). 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). 

First, appellant claimed that his appellate counsel was 

ineffective for failing to raise the previous underlying claims on direct 

appeal. Appellant failed to demonstrate that appellate counsel's 

performance was deficient or that he was prejudiced. Appellant asserted 

that he requested counsel to raise the previous underlying claims on direct 

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iaL',.fi;ViaakikAg10,1 
appeal, but was told by appellate counsel that they were improper claims. 

Tactical decisions such as a decision to decline to raise certain arguments 

on direct appeal "are virtually unchallengeable absent extraordinary 

circumstances," id., which appellant did not demonstrate. As discussed 

previously, appellant failed to demonstrate that the underlying claims had 

merit, and therefore, failed to demonstrate a reasonable likelihood of 

success had they been argued on direct appeal. Therefore, the district 

court did not err in denying these claims. 

Second, appellant claimed that his appellate counsel was 

ineffective because his direct appeal was dismissed due to a jurisdictional 

error and the remittitur has not issued. Appellant failed to demonstrate 

either deficiency or prejudice because his direct appeal was not dismissed 

due to a jurisdictional error. This court considered appellant's claims on 

the merits and affirmed the judgment of conviction. Moore v. State, 

Docket No. 55527 (Order of Affirmance, June 8, 2011). The remittitur 

issued on July 5, 2011. Therefore, the district court did not err in denying 

this claim. 

Next, appellant claimed that the jury contained only 

Caucasians, the district court sentenced him after the start of appellate 

proceedings, he was improperly charged by criminal complaint and did not 

waive his right to a grand jury, Nevada sentences are longer than 

neighboring states, and MRS 200.364 and NRS 200.366 are 

unconstitutional. Appellant also claimed his sentence was 

unconstitutional because it violated the Equal Protection Clause, his due 

process rights were violated, it was a bill of attainder or of pains and 

penalties, it violated his right to confrontation, it was cruel and unusual 

punishment because it imposed excessive fines and penalties, and it 

violated his rights regarding privileges and immunities. These claims are 

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Iy 
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waived as they could have been raised in appellant's direct appeal, and 

appellant failed to demonstrate good cause for his failure to do so. See 

NRS 34.810(1)(b)(2), Pellegrini v. State, 117 Nev. 860, 884, 34 P.3d 519, 

535 (2001). Therefore, the district court did not err in denying these 

claims. 

Having concluded appellant is not entitled to relief, we 

ORDER the judgment of the district court AFFIRMED. 2 

cc: Hon. James M. Bixler, District Judge 

Devell Moore 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

2We have reviewed all documents that appellant 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 appellant 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. 

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