ineffective assistance of trial counsel, a petitioner must demonstrate that 

trial 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 trial 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 if supported by 

substantial evidence and not clearly erroneous 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). 

First, appellant claims that trial counsel was ineffective for 

failing to object to the exclusion of all of the DNA evidence. Appellant fails 

to demonstrate that he was prejudiced. Because the DNA evidence that 

appellant claims should not have been excluded was neutral at best, 

appellant fails to demonstrate a reasonable probability of a different 

outcome at trial had the DNA evidence been admitted. Therefore, the 

district court did not err in denying this claim. 

Second, appellant claims that trial counsel was ineffective for 

failing to timely notice Meyer as a witness. Appellant fails to demonstrate 

that counsel was deficient. At the evidentiary hearing, trial counsel 

testified that appellant refused to inform him of what Meyer would testify 

about. It was not until the night before the first day of trial that trial 

counsel learned what Meyer would testify about. Therefore, trial counsel 

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was not deficient for failing to timely notice Meyer as a witness. 

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

Third, appellant claims that trial counsel was ineffective for 

failing to object to several instances of prosecutorial misconduct during 

closing arguments. Appellant fails to demonstrate that counsel was 

deficient or that he was prejudiced. Trial counsel testified at the 

evidentiary hearing that he could not pay attention to the State's closing 

argument because appellant would not stop talking to him. Therefore, 

trial counsel was not deficient for failing to object to the alleged instances 

of prosecutorial misconduct. Further, appellant fails to demonstrate a 

reasonable probability of a different outcome at trial had trial counsel 

objected because sufficient evidence was presented that appellant 

possessed the drugs and guns. Further, the jury was instructed that the 

statements, arguments, and opinions of counsel were not to be considered 

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

Fourth, appellant claims that trial counsel was ineffective for 

failing to cross-examine Barker with her inconsistent statements. 

Appellant fails to demonstrate that trial counsel was deficient or that he 

was prejudiced. Appellant fails to demonstrate that Barker's statements 

were inconsistent. Further, he fails to demonstrate a reasonable 

probability of a different outcome at trial had trial counsel asked her 

about those statements. Therefore, the district court did not err in 

denying this claim. 

Next, appellant claims that the district court erred by denying 

his claims of ineffective assistance of appellate counsel To prove 

ineffective assistance of appellate counsel, a petitioner must demonstrate 

that counsel's performance was deficient in that it fell below an objective 

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standard of reasonableness, and resulting prejudice such that the omitted 

issue would have a reasonable probability of success on appeal. Kirksey v. 

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

must be shown. Strickland, 466 U.S. at 697. We give deference to the 

court's factual findings if supported by substantial evidence and not 

clearly erroneous but review the court's application of the law to those 

facts de novo. Lader, 121 Nev. at 686, 120 P.3d at 1166. 

First, appellant claims that appellate counsel was ineffective 

for failing to raise claims on appeal that the State committed prosecutorial 

misconduct during closing arguments. Appellant fails to demonstrate that 

the claims had a reasonable probability of success on appeal for the 

reasons discussed above. Therefore, the district court did not err in 

denying this claim. 

Second, appellant claims that appellate counsel was 

ineffective for failing to provide this court with a pretrial hearing 

transcript that demonstrates that the State agreed not to introduce bad 

act evidence that appellant was wanted for other crimes. Appellant claims 

that had appellate counsel provided this transcript, his claim that the 

State improperly introduced bad act evidence would have been granted on 

appeal. Appellant fails to demonstrate that appellate counsel was 

deficient or that he was prejudiced. The transcript cited by appellant only 

demonstrates that the State agreed not to introduce evidence that 

appellant was being followed by the Repeat Offender Program officers. 

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There is no indication that the State agreed not to inform the jury that 

appellant was wanted for a misdemeanor, which was the basis for the stop 

of appellant. 1Therefore, appellant fails to demonstrate a reasonable 

probability of success on appeal had appellate counsel provided the 

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

Third, appellant claims that appellate counsel was ineffective 

for failing to appeal the district court's decision to exclude all of the DNA 

evidence. As discussed above, the DNA evidence was at best neutral, and 

appellant fails to demonstrate that there was a reasonable probability of 

success on appeal had appellate counsel raised this claim. Therefore, the 

district court did not err in denying this claim. 

Fourth, appellant claims that appellate counsel was ineffective 

for failing to argue on appeal that the evidence of trafficking in a 

controlled substance and being a felon in possession of a firearm was 

insufficient. Appellant fails to demonstrate that appellate counsel was 

deficient or that he was prejudiced because the evidence supporting the 

convictions, when viewed in the light most favorable to the State, was 

sufficient to establish guilt beyond a reasonable doubt as determined by a 

rational trier of fact. NRS 453.3385(1); NRS 202.360; Jackson v. Virginia, 

443 U.S. 307, 319 (1979); McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 

573 (1992). Therefore, the district court did not err in denying this claim. 

Fifth, appellant claims that appellate counsel was ineffective 

for failing to consult with him about the appeal. Appellant fails to 

lAppellant's claim that trial counsel was ineffective for failing to 

object to the State's use of the prior bad acts fails for the same reason. 

The State never agreed not to mention that appellant was wanted for a 

misdemeanor. 

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Pickering 

Pa...o. t%"tr 

Parragpjr-re 

J. 

J. 

demonstrate that he was prejudiced because he failed to demonstrate that 

there were any claims that appellate counsel should have raised that had 

a reasonable probability of success on appeal. Therefore, the district court 

did not err in denying this claim. 

Finally, appellant claims that the State committed 

prosecutorial misconduct when it argued in closing arguments that no one 

else could have put the duffel bag in the car and that Meyer had no 

connection whatsoever to the car and evidence found there. Appellant 

failed to allege this claim in terms of him receiving ineffective assistance 

of counsel. Therefore, to the extent that appellant attempted to raise this 

claim as an ineffective-assistance-of-counsel claim, he failed to provide 

cogent argument. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 

(1987). Further, to the extent that he raised this as strictly a 

prosecutorial misconduct claim, this claim should have been raised on 

direct appeal from his judgment of conviction and sentence and appellant 

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

34.810(1)(b)(2). Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 

Saitta 

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cc: Second Judicial District Court Dept. 10 

Hon. Steven P. Elliott, Senior Judge 

Janet S. Bessemer 

Attorney General/Carson City 

Washoe County District Attorney 

Washoe District Court Clerk 

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