Nev. 980, 988, 923 P.2d 1102, 1107 (1996). Both components of the

inquiry must be shown. Strickland v. Washington, 466 U.S. 668, 697 (1984). 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 v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). An evidentiary hearing is required if the petitioner presents claims supported by specific facts that are not belied the record, which if true, would entitle the petitioner to relief. See Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984).

Appellant argues that trial counsel was ineffective for failing to obtain independent DNA testing of the evidence in light of the subsequent firing of the technician who processed the evidence in his case. Appellant fails to demonstrate that his trial counsel was ineffective in regards to the DNA testing. Trial counsel could not have challenged the results of the DNA testing before the plea based upon the firing of the technician approximately one year after the conviction. And appellant fails to demonstrate that trial counsel should otherwise have had reason to independently test the DNA evidence. Appellant further fails to demonstrate by a reasonable probability that he would not have entered a plea and would have gone to trial absent trial counsel's failure to seek independent testing of the DNA test results in light of the benefit he received by entry of his plea and the evidence against him, including his own confession and the victim's testimony at the grand jury proceedings, which included her identification of appellant in a photograph. Therefore, the district court did not err in denying this claim without conducting an evidentiary hearing.

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### eNext, appellant argues that the district court erred in

permitting the State to retest the sample when the district court granted his motion for independent DNA testing. We conclude that appellant fails to demonstrate any error. First, the district court did not grant his motion for independent testing, but rather requested further proceedings on the motion to delve into the chronology of events and the involvement of the fired technician in this case. Second, an independent review was undertaken. At a subsequent hearing, an affidavit from the Director of Laboratory Services for the Las Vegas Metropolitan Police Department was presented averring that the "DNA case file for [the instant case] was independently reviewed by an external, unbiased third party entity and the DNA results previously rendered by [the former technician] were found to be supported by the data and case notes generated at the time of the original testing." In light of appellant's failure to demonstrate that his trial counsel was ineffective as set forth above, without any consideration of the subsequent affidavit, appellant fails to demonstrate any error in regards to his motion. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

J. Hardesty

Douglas 

# ga °
J.



## 1124( Cherry J.

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(0) 1947Acc: Hon. Rob Bare, District Judge Christopher R. Oram Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

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