No. 67143 

FILED 

MAR 1 7 2016 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

LOREN RAYMOND FOLLETT, 

Appellant, 

vs. 

THE STATE OF NEVADA; AND 

ROBERT LEGRAND, WARDEN, 

LOVELOCK CORRECTIONAL 

CENTER, NEVADA DEPARTMENT OF 

CORRECTIONS, 

Respondents. 

ORDER OF AFFIRMANCE 

This is an appeal from an order of the district court denying a 

postconviction petition for a writ of habeas corpus. Second Judicial 

District Court, Washoe County; Jerome M. Polaha, Judge. 

On appeal from the denial of his April 21, 2014, petition, 

appellant first argues that the district court erred in denying his claims 

that the trial court had erred in failing to instruct the jury that a 

reasonable but mistaken belief in consent is a defense to sexual assault 

and in allowing the State's expert to give testimony regarding delayed 

reporting of sexual assault. This court considered and rejected these 

claims on direct appeal. See Follett v. State, Docket No. 60784 (Order of 

Affirmance, May 15, 2013). Those holdings are the law of the case, which 

"cannot be avoided by a more detailed and precisely focused argument 

subsequently made after reflection upon the previous proceedings." Hall 

v. State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975). Appellant has failed 

to demonstrate that those holdings are "so clearly erroneous" as to 

warrant departing from them. Tien Fu Hsu v. County of Clark, 123 Nev. 

625, 631, 173 P.3d 724, 729 (2007) (quoting Clem v. State, 119 Nev. 615, 

620, 81 P.3d 521, 525 (2003)). 

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Appellant next argues that the district court erred in denying 

his claims of ineffective assistance of trial and appellate 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); see also Kirksey v. State, 

112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996). Both components of the 

inquiry must be shown. Strickland, 466 U.S. at 697. Claims must be 

supported by specific factual allegations that, if true and not repelled by 

the record, would entitle a petitioner to relief. Hargrove v. State, 100 Nev. 

498, 502, 686 P.2d 222, 225 (1984). 

First, appellant argues that trial counsel was ineffective for 

failing to interview witnesses despite a clear duty to investigate. 

Appellant has failed to demonstrate deficiency or prejudice. For the 

events where there were witnesses, appellant has not demonstrated that 

counsel was objectively unreasonable in not interviewing the witnesses 

because the discrepancies in appellant's and the victim's testimony were 

minor. As to the beginning of the disagreement, both appellant and the 

victim testified that they were alone, so there were no witnesses. 

Moreover, appellant's bare claim does not indicate that he was prejudiced, 

because he fails to indicate what the witnesses would have said or show 

how their testimony would have resulted in a different outcome at trial. 

See Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004). We 

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

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Second, appellant argues appellate counsel was ineffective for 

failing to contact the jurors after trial to learn what happened to cause 

them to move from hung to a unanimous guilty verdict. Appellant has 

failed to demonstrate deficiency or prejudice. Appellant has not 

demonstrated that counsel was objectively unreasonable where the 

general rule is that jurors may not impeach their own verdict. See Meyer 

v. State, 119 Nev. 554, 562, 80 P.3d 447, 454 (2003). Moreover, appellant's 

bare claim does not indicate that he was prejudiced, because he fails to 

state what the jurors would have said or how it would have resulted in a 

reasonable probability of success on appeal. We therefore conclude that 

the district court did not err in denying this claim. 

Third, appellant argues appellate counsel was ineffective for 

failing to file a reply brief. Appellant has failed to demonstrate deficiency 

or prejudice. Whether to file a reply brief is discretionary. See NRAP 

28(c) ("The appellant may file a brief in reply." (emphasis added)). 

Further, appellant has not identified any new matter that the State raised 

in its answering brief such that a reply brief would have been appropriate. 

See id. ("A reply brief. . . must be limited to answering any new matter set 

forth in the opposing brief."). Moreover, appellant's bare claim does not 

indicate what the reply brief should have said or how it would have 

resulted in a reasonable probability of success on appeal. We therefore 

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

Finally, appellant argues that cumulative error warrants a 

reversal of his conviction. As this claim was not raised below, we need not 

consider it on appeal in the first instance. See Davis v. State, 107 Nev. 

600, 606, 817 P.2d 1169, 1173 (1991), overruled on other grounds by Means 

v. State, 120 Nev. 1001, 1012-13, 103 P.3d 25, 33 (2004). 

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J. 

Pickering 

For the foregoing reasons, we conclude that appellant's claims 

lack merit, and we 

ORDER the judgment of the district court AFFIRMED. 

ik---ICLA di—et\ ,J. 

Hardesty 

751 fil AWL, , J. 

Saitta 

cc: Hon. Jerome M. Polaha, District Judge 

Kenneth J. McKenna 

Attorney General/Carson City 

Washoe County District Attorney 

Washoe District Court Clerk 

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