allow certain jury instructions and verdict options; the validity of his 

waiver of rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966); and 

the constitutionality of his sentence as disproportionate to his crime. The 

first two claims were raised on direct appeal and rejected on their merits 

and are therefore barred by the doctrine of the law of the case. Hall v. 

State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975) (stating that the holding 

on direct appeal is the law of the case on all subsequent appeals). The 

other two claims could have been raised on direct appeal and were 

therefore procedurally barred absent a demonstration of good cause and 

actual prejudice. NRS 34.810(1)(b). Appellant made no cogent argument 

of good cause or actual prejudice. We therefore conclude that the district 

court did not err in denying these claims. 

Appellant next claimed that he received ineffective assistance 

of trial counsel. To prove ineffective assistance of 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 there is a reasonable probability that, but for counsel's errors, 

the outcome of the proceedings would have been different. Strickland v. 

Washington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 

432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland). Both 

components of the inquiry must be shown, Strickland, 466 U.S. at 697, 

and the petitioner must demonstrate the underlying facts by a 

preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012, 103 

P.3d 25, 33 (2004). We give deference to the district court's factual 

findings regarding ineffective assistance of counsel but review the court's 

application of the law to those facts de novo. Lader v. Warden, 121 Nev. 

682, 686, 120 P.3d 1164, 1166 (2005). 

2 
First, appellant claimed that counsel was ineffective for 

making a flawed double-jeopardy argument, which was the result of 

improper investigation. Appellant failed to demonstrate deficiency or 

prejudice. Appellant did not state what the results of a more thorough 

investigation would have been. Molina v. State, 120 Nev. 185, 192, 87 

P.3d 533, 538 (2004). Further, the law of the case is that appellant's 

convictions for both trespass and burglary arising from the same event do 

not violate the Double Jeopardy Clauses of the United States and Nevada 

constitutions. Manning v. State, Docket No. 56797 (Order of Affirmance, 

September 14, 2011); Hall, 91 Nev. at 316, 535 P.2d at 799; see also Smith 

v. State, 120 Nev. 944, 946, 102 P.3d 569, 571 (2004). We therefore 

conclude that the district court did not err in denying this claim. 

Second, appellant claimed that counsel was ineffective for 

failing to investigate the discovery, resulting in an improper charge of 

burglary where he only intended to commit petit larceny. Appellant failed 

to demonstrate deficiency or prejudice. In his petition, appellant admitted 

that he did what he has done "countless times": find a discarded receipt 

and "reenter the retailer with the objective of 'pretending' to return 

whatever items appeared on that receipt for a cash refund." Appellant's 

admission that he entered the store with the intent to commit petit 

larceny and/or obtain money by false pretenses satisfied the elements for 

burglary. See NRS 205.060(1); Manning v. State, Docket No. 56797 

(Order of Affirmance, September 14, 2011) (holding that sufficient 

evidence supported appellant's conviction for burglary). We therefore 

conclude that the district court did not err in denying this claim. 

Finally, appellant claimed that he received ineffective 

assistance from appellate counsel, who failed to include an adequate 

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appendix for this court's review on direct appeal. Specifically, counsel 

failed to provide this court with the charging document that led to 

appellant's conviction in municipal court for trespass in violation of NRS 

207.200, a conviction that preceded his burglary prosecution. We conclude 

that the district court erred in denying this claim without an evidentiary 

hearing. 

Appellant pleaded sufficient facts that, if true, would have 

entitled him to relief, and thus to an evidentiary hearing on this claim. 

See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984). 

Counsel's failure to include the document precluded this court from 

reaching the merits of appellant's redundancy argument. Manning v. 

State, Docket No. 56797 (Order of Affirmance, September 14, 2011). 

Further, it appears that appellant's dual convictions for trespass and 

burglary may have violated Nevada's prohibition against cumulative 

punishments under an "alternative-offense 'redundancy" theory. Jackson 

v. State, 128 Nev. „ 291 P.3d 1274, 1283 (2012), petition for cert. 

filed 81 U.S.L.W. (U.S. Mar. 5, 2013) (No. 12-9118); compare NRS 

207.200 (defining trespass in part as "under circumstances not amounting 

to a burglary"), with NRS 201.230, and Braunstein v. State, 118 Nev. 68, 

78-79, 40 P.3d 413, 420-21 (2002); see also Kirksey v. State, 112 Nev. 980, 

998, 923 P.2d 1102, 1114 (1996) (applying the Strickland test to claims 

regarding ineffective appellate counsel). In addition to conducting an 

evidentiary hearing, because of the complex legal issues involved, the 

district court should appoint post-conviction counsel to assist the 

petitioner. NRS 34.750(1). 

4 
J. 

Parraguirre 

Docket No. 61647 

Appellant filed a second notice of appeal from the same order 

that was the subject of Docket No. 60883. The clerk of this court 

inadvertently docketed an appeal in Docket No. 61647 as a separate 

matter when appellant filed the second, duplicative notice of appeal. 

Accordingly, we direct the clerk of this court to administratively close the 

instant appeal. 

For the foregoing reasons, we 

ORDER the judgment of the district court AFFIRMED IN 

PART AND REVERSED IN PART AND REMAND to the district court for 

proceedings consistent with this order in Docket No. 60883 and 

ADMINISTRATIVELY CLOSE THE APPEAL in Docket No. 61647. 

Hardesty 

cc: Hon. Jessie Elizabeth Walsh, District Judge 

Juan Deleon Manning 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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