P.2d 920, 922 (1996). 1Therefore, the district court did not err in 

dismissing this claim. 

Next, appellant argues 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 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 argues that counsel was ineffective for failing 

to investigate phone records of the victim and her mother to demonstrate 

that they frequently called appellant at all hours, even after the abuse 

'To the extent appellant requests this court to adopt an additional 

standard for establishing a fundamental miscarriage of justice, we decline 

to do so. 

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allegations were reported. Appellant claims that this evidence would cast 

doubt on the victim's accounts of the abuse and would support his defense 

that the victim fabricated the allegations because appellant's time, money, 

and attention were drawn away from the victim and her mother and 

towards appellant's new girlfriend. Appellant fails to demonstrate 

deficiency or prejudice. At the evidentiary hearing, appellant's former 

counsel testified that he did not believe the records were relevant, that it 

was known that the victim and appellant had contact, and that he was 

worried that phone records might show evidence of grooming. The district 

court stated at the evidentiary hearing that counsel was not deficient in 

his questioning of the victim and her mother regarding their motives to lie 

and in his attempts to impeach their credibility where he could, 

strategically evaluating which areas to delve into and which to omit 

without causing appellant more harm than good. The district court 

further stated that no additional evidence or lines of argument could have 

been presented that would have changed the result of the trial. The 

district court's findings are supported by substantial evidence, and we 

agree with the district court's determinations and conclude that it did not 

err by denying this claim. 

Second, appellant argues that counsel was ineffective for 

failing to provide witnesses on appellant's behalf. Specifically, appellant 

argues that counsel should have secured appellant's girlfriend as a 

witness in order to testify that the victim and her mother called and made 

threatening, jealous statements to the girlfriend, thereby supporting the 

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defense that the victim fabricated the abuse allegations because of 

jealousy. 2Appellant fails to demonstrate deficiency or prejudice. At the 

evidentiary hearing, counsel testified that his investigator contacted 

witnesses at appellant's request and that, after receiving information from 

his investigator, counsel was concerned that the witnesses might open the 

door to character evidence. The district court stated at the evidentiary 

hearing that counsel was not deficient in determining that the witnesses 

were not relevant or were not helpful because of what evidence might be 

admitted as a result of the witnesses' testimony. See Doleman v. State, 

112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996) (trial counsel's strategic 

decisions are "virtually unchallengeable absent extraordinary 

circumstances" (internal quotation marks omitted)). The district court 

further stated that no additional evidence or lines of argument could have 

been presented that would have changed the result of the trial The 

district court's findings are supported by substantial evidence, and we 

agree with the district court's determinations and conclude that it did not 

err by denying this claim. 

Third, appellant argues that counsel was ineffective for failing 

to seek a legal and permissible middle ground to admit evidence that 

2To the extent appellant argues that counsel was ineffective for 

failing to call any other witness, appellant failed to allege specific facts 

that, if true, entitled him to relief. Hargrove v. State, 100 Nev. 498, 502, 

686 P.2d 222, 225 (1984). Appellant failed to identify what witnesses 

should have been called and what testimony those witnesses would have 

offered. 

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appellant was out of the state during a portion of the timeframe in which 

the victim alleged the abuse occurred without admitting that he was 

incarcerated. This argument was not raised below, and appellant "cannot 

change [his] theory underlying an assignment of error on appeal." Ford v. 

Warden, 111 Nev. 872, 884, 901 P.2d 123, 130 (1995). In his habeas 

petition, his supplement to the petition, and throughout his testimony at 

the evidentiary hearing, appellant maintained that counsel was ineffective 

for failing to present evidence that appellant was incarcerated, and that 

was the claim ruled upon by the district court. Therefore, we decline to 

consider this claim on appeal. 

Fourth, appellant argues that counsel was ineffective for 

failing to raise consent as a defense to the sexual assault charges. This 

argument was not raised below, and we decline to consider it on appeal in 

the first instance. 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). 

Fifth, appellant argues that counsel was ineffective for failing 

to investigate and effectively challenge the recorded phone calls between 

the victim and appellant. Appellant fails to demonstrate deficiency or 

prejudice. Appellant makes only a bare allegation that, had counsel 

investigated, he would have discovered that appellant was speaking to 

someone besides the victim, which is insufficient to demonstrate a 

reasonable probability of a different outcome. Furthermore, counsel filed 

a motion in limine to preclude introduction of the phone calls. The district 

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court granted the motion in limine but stated that the tapes could be 

admitted for impeachment purposes. 3Appellant contends that, had 

counsel done a better job, the tapes would not have been admitted for any 

purpose and that his cross-examination of the victim and her mother 

regarding the phone calls would not have been limited. We conclude that 

appellant fails to demonstrate deficiency or prejudice. On direct appeal, 

appellant challenged the district court's limitation of the crossexamination of the victim and her mother regarding the recorded phone 

calls, and we concluded that the inadmissible evidence could have been 

introduced to correct a false impression if one was created during counsel's 

examination. Yaag v. State, Docket No. 53787 (Order of Affirmance, April 

8, 2010). Therefore, the district court did not err in denying this claim. 

Sixth, appellant argues that counsel was ineffective for failing 

to challenge prosecutorial misconduct when the State threatened to reveal 

the details of appellant's incarceration if appellant presented evidence 

that he was out of Nevada during a portion of the timeframe in which the 

victim alleged the abuse occurred. This argument was not raised below, 

and appellant "cannot change [his] theory underlying an assignment of 

error on appeal." Ford, 111 Nev. at 884, 901 P.2d at 130. In his habeas 

petition, his supplement to the petition, and his reply, appellant failed to 

3As the recorded phone calls were not admitted into evidence, 

appellant fails to demonstrate deficiency or prejudice by counsel's failure 

to make an evidentiary objection to the recordings. 

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allege this theory when claiming prosecutorial misconduct; therefore, we 

decline to consider this claim on appeal. 

Seventh, appellant argues that counsel was ineffective for 

failing to challenge prosecutorial misconduct when the State repeatedly 

emphasized and relied on false testimony, specifically that the victim was 

11 years old when the abuse began in Nevada, in order to obtain a 

conviction. Appellant alleges that he was incarcerated in California until 

July 25, 2005; the State failed to correct the victim's testimony that she 

was 11 years old when the abuse began in Nevada, an impossibility given 

appellant's date of release from custody; and the State emphasized the 

victim's incorrect testimony by repeatedly arguing that the abuse began in 

Nevada when the victim was 11 years old. Appellant fails to demonstrate 

deficiency or prejudice. Appellant fails to demonstrate when he was 

released from custody, as he provided documentation that shows only his 

conviction date, his sentencing term, and his credit for time served. 

Therefore, appellant fails to demonstrate that counsel was objectively 

unreasonable for failing to challenge the State's conduct or that there was 

a reasonable probability of a different outcome at trial had counsel 

challenged the conduct. See Thomas v. State, 120 Nev. 37, 43 & n.4, 83 

P.3d 818, 822 & n.4 (2004) (concluding that appellant is ultimately 

responsible for providing this court with portions of the record necessary 

to resolve his claims on appeal); Greene v. State, 96 Nev. 555, 558, 612 

P.2d 686, 688 (1980) ("The burden to make a proper appellate record rests 

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on appellant."). Therefore, the district court did not err in denying this 

claim. 

Next, appellant argues that he received 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 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). Both components of the inquiry must be shown. Strickland, 

466 U.S. at 697. Appellate counsel is not required to raise every nonfrivolous 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). 

Appellant argues that appellate counsel was ineffective for 

failing to raise the following claims of prosecutorial misconduct on appeal: 

that the State threatened to reveal the details of appellant's incarceration 

and that the State repeatedly emphasized and relied on false testimony in 

order to obtain a conviction. Appellant failed to raise the claim regarding 

the State's threats below. He "cannot change [his] theory underlying an 

assignment of error on appeal," Ford, 111 Nev. at 884, 901 P.2d at 130, 

and we decline to consider this claim. As appellant fails to demonstrate 

that the State emphasized and relied on false testimony, he fails to 

demonstrate that appellate counsel was deficient in not raising this claim 

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J. 

or that the claim would have a reasonable probability of success on appeal. 

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

Lastly, appellant argues that the district court misconstrued 

the doctrine of the law of the case when relying upon this court's 

determination that the charging document provided sufficient notice. To 

the extent that there is any error in dismissing claims as barred by the 

law-of-the-case doctrine, for the reasons discussed above, we conclude that 

the district court reached the right result in denying appellant's petition. 

See Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970) ("If a 

judgment or order of a trial court reaches the right result, although it is 

based on an incorrect ground, the judgment or order will be affirmed on 

appeal."). Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 

J. 

Hardesty 

r—Dcm 

J. 

Douglas 

cc: Hon. Elissa F. Cadish, District Judge 

Mario D. Valencia 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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