petitions and the supplemental brief. The district court conducted an 

evidentiary hearing on November 1, 2013. See NRS 34.770(1). On 

December 19, 2013, the district court entered a written findings of fact, 

conclusions of law, and order denying Adkisson's petition. This appeal 

followed. After this appeal had been submitted for decision, Adkisson filed 

a motion to remove appointed counsel as post-conviction counsel and to 

proceed pro se, along with a supplemental brief. This court granted that 

motion. 

Adkisson argued that he received ineffective assistance from 

his trial and appellate counsel, asserting twelveS bases of error. To 

demonstrate ineffective assistance of counsel, a petitioner must show that 

counsel's performance was deficient and that prejudice resulted. 

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) (applying Strickland to claims of ineffective assistance of 

appellate counsel). We give deference to the district court's factual 

findings 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). 

Counsel is strongly presumed to have provided adequate assistance and 

exercised reasonable professional judgment in all significant decisions. 

Strickland, 466 U.S. at 689. 

First, Adkisson argued that trial counsel provided ineffective 

assistance by failing to adequately investigate prior to trial, specifically 

asserting that counsel should have obtained expert analysis of the 911 call 

recording and should have interviewed people living near the crime scene 

to corroborate his self-defense theory. An attorney must reasonably 

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investigate in preparing for trial or reasonably decide not to. Strickland, 

466 U.S. at 691; Kirksey, 112 Nev. at 992, 923 P.2d at 1110. Trial counsel 

testified that he did not enlist an expert because the 911 recording 

supported the State's narrative and not the defense's self-defense theory 

and he did not want to strengthen evidence that favored the State. 

Adkisson's assertion that analyzing the recording would undermine Alan 

Kofed's testimony lacks support in the record. Regarding neighbor 

interviews, trial counsel testified that he used an investigator who 

canvassed the neighborhood, and Adkisson failed to show that neighbor 

testimony would have supported the defense theory and led to a 

reasonable probability of a different outcome. See Strickland, 466 U.S. at 

687-88.' 

Second, Adkisson argued that trial counsel erred in failing to 

obtain gun registration sheets to impeach Kofed and Nason Schoeffler and 

in failing to obtain experts on ballistics, crime-scene investigations, and 

audio-recording analysis. Trial counsel cross-examined these witnesses at 

trial and testified at the evidentiary hearing that he consulted a medical 

expert about the fight-or-flight response and self-defense. Adkisson 

merely asserted potentially favorable evidence and failed to show that the 

gun registration sheets or additional experts would have led to a 

reasonable probability of a different outcome. See id. at 687-89; Mortensen 

v. State, 115 Nev. 273, 285, 986 P.2d 1105, 1113 (1999). 

Third, Adkisson argued that trial counsel should have objected 

to alleged prosecutorial misconduct when the State argued at closing that 

'We reject Adkisson's contention that appellate counsel was 

ineffective for failing to challenge the adequacy of the investigation on 

appeal. 

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the failure to test additional shell casings was a red herring and argued 

that the jury would have to believe that other witnesses were liars to 

believe Patricia Colacino's testimony. This court held on direct appeal 

that these arguments were not improper and did not affect Adkisson's 

substantial rights, especially in light of the overwhelming evidence 

against Adkisson. Therefore, we conclude that trial counsel was not 

ineffective in this regard. 

Fourth, Adkisson argued that trial counsel should have 

objected to the admission of photographs of the victim's body, the crime 

scene, himself post-arrest, and the victim with two children in his lap. 

Adkisson argued that the former were cumulative and unfairly prejudicial 

and the latter obscured the victim's criminal past. Counsel alone is 

entrusted with tactical decisions, Rhyne v. State, 118 Nev. 1, 8, 38 P.3d 

163, 167 (2002), such as when to object, and those decisions are "virtually 

unchallengeable absent extraordinary circumstances," Doleman v. State, 

112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996). Adkisson did not show 

extraordinary circumstances warranting challenge to counsel's tactics or 

that counsel's objection would have led to a reasonable probability of a 

different outcome. See Strickland, 466 U.S. at 687-88. 

Fifth, Adkisson argued that trial counsel should have 

requested a spoliation instruction because the investigation failed to 

preserve exculpatory evidence. Trial counsel raised this issue extensively 

in cross-examining police investigators and made this a prominent theme 

in arguing that the State failed to meet its burden. Trial counsel 

successfully proposed a jury instruction permitting the jury to consider 

whether certain tests that the police declined to perform would have been 

useful in determining guilt. Further, possession of the evidence that was 

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not collected would not likely benefit Adkisson's defense theory: the spent 

cartridge casings were found on the other side of the street and do not 

support self-defense, Kofed admitted to firing the handgun in question at 

the fleeing Adkisson's car, and Adkisson's assertion that the decedent fired 

the handgun was not supported by any evidence and conflicts with 

overwhelming evidence at trial. Adkisson did not show that trial counsel 

was deficient on this issue or that he was prejudiced by the loss of this 

evidence. See Strickland, 466 U.S. at 687-88, 691; Daniels v. State, 114 

Nev. 261, 267, 956 P.2d 111, 115 (1998). 

Sixth, Adkisson argued that trial counsel provided ineffective 

assistance by improperly advising Adkisson not to testify at trial. He 

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

he was prejudiced. The evidentiary hearing transcript showed that 

counsel's reasons for advising Adkisson not to testify stemmed from 

concern that his testimony would damage the defense's case. The district 

court thoroughly canvassed Adkisson on his right to testify and informed 

him that the decision to testify was his alone, and he declined to do so. 

Trial counsel was not ineffective on this basis. 

Seventh, Adkisson argued that trial counsel provided 

ineffective assistance in failing to object to jury instructions 6 (malice), 10 

(premeditation), and 34 (reasonable doubt). This court has upheld the 

implied-malice language used in jury instruction 6 in Byford v. State, 116 

Nev. 215, 232, 994 P.2d 700, 712 (2000), and the exact language of jury 

instruction 34 in NRS 175.211 in Elvik v. State, 114 Nev. 883, 897-98, 965 

P.2d 281, 290-91 (1998). And as Adkisson was convicted of second-degree 

murder and not first-degree murder, he cannot establish prejudice as to 

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jury instruction 10. Trial counsel was not deficient in not objecting to 

these proper instructions. See Strickland, 466 U.S. at 687-88. 2 

Eighth, Adkisson argued that trial counsel failed to convey a 

plea offer. During the evidentiary hearing, trial counsel discussed his 

extensive plea negotiations with the State and how no plea offer was 

made, and the prosecutor had a similar recollection of the proceedings. 

The district court found trial counsel to be credible and that no offer was 

made. See Lader, 121 Nev. at 686, 120 P.3d at 1166. The record confirms 

that the defense requested an offer but does not show that a formal offer 

ever arose from these requests, and no evidence supported Adkisson's 

allegations that a plea offer existed or that he accepted a plea offer. 

Adkisson failed to show that counsel's performance was deficient. See 

Strickland, 466 U.S. at 688. 

Ninth, Adkisson argued that appellate counsel provided 

ineffective assistance by failing to appeal the admissionS of each and every 

instance of prior bad act evidence. Appellate counsel challenged the 

admission of certain instances of prior bad act evidence on appeal, and this 

court concluded that the admission of this testimony was not plain error. 

Appellate counsel was not deficient in failing to challenge other similar 

testimony. See Kirksey, 112 Nev. at 998, 923 P.2d at 1114; Hall v. State, 

91 Nev. 314, 535 P.2d 797 (1975). 

Tenth, Adkisson argued that appellate counsel provided 

ineffective assistance by failing to challenge the district court's failure to 

hold a hearing to determine admissibility under NRS 48.045 in admitting 

2We reject Adkisson's contention that appellate counsel was 

ineffective for not challenging jury instructions 6, 10, and 34 on appeal. 

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instances of prior bad act evidence. See Petrocelli v. State, 101 Nev. 46, 51, 

692 P.2d 503, 507 (1985), modified on other grounds by Sonner v. State, 

112 Nev. 1328, 930 P.2d 707 (1996). The absence of a Petrocelli hearing 

did not require reversal where, as here, the record showed that the prior 

bad act evidence was admissible or where the result would be the same 

absent the evidence. McNelton v. State, 115 Nev. 396, 405, 990 P.2d 1263, 

1269 (1999). Given the affirmed admission of nearly equivalent evidence, 

the overwhelming evidence against Adkisson's self-defense claim, and the 

conceded fact that he shot the decedent, the outcome would be the same 

absent this prior bad act evidence. See id. 

Eleventh, Adkisson argued that appellate counsel provided 

ineffective assistance by failing to challenge the admission of 

impermissible hearsay. Adkisson highlighted a brief exchange in which a 

witness testified when asked to describe another witness's tone of voice: 

"She was scared. She's a single mom. She has four kids." This testimony 

did not relate an out-of-court statement admitted to prove the truth of the 

matter asserted and therefore is not hearsay. See NRS 51.035. 

Accordingly, this issue would not have had a reasonable probability of 

success on appeal. See Kirksey, 112 Nev. at 998, 923 P.2d at 1114. 

Twelfth, Adkisson argued that cumulative error by counsel 

compels relief. Assuming that more than one deficiency in counsel's 

performance may be cumulated to show prejudice under Strickland, see 

McConnell v. State, 125 Nev. 243, 259 n.17, 212 P.3d 307, 318 n.17 (2009), 

because we have found only the Pet rocelli error for which Adkisson failed 

to demonstrate prejudice, there is nothing to cumulate. 

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Having considered Adkisson's contentions and concluded that 

they were without merit, we 

ORDER the judgment of the district court AFFIRMED. 3 

/ AAA free,a; , C.J. 

Hardesty 

Pickering 

cc: Hon. David B. Barker, District Judge 

Christopher R. Oram 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

Michael Dean Adkisson 

3This court will not consider claims for relief that were not raised in 

the post-conviction petition for habeas corpus or considered by the district 

court. 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, 103 P.3d 25 

(2004). Therefore, we decline to consider arguments raised for the first 

time in Adkisson's pro se brief. 

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