2 

-.., • 11.1.1,1,11, 

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 regarding ineffective 

assistance of counsel 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 claimed that his trial counsel failed to file a 

pretrial writ. Appellant failed to demonstrate that his trial counsel's 

performance was deficient or that he was prejudiced. Counsel filed a 

pretrial motion seeking dismissal of a charge. Appellant failed to 

demonstrate a reasonable probability of a different outcome had counsel 

filed additional pretrial writs. Therefore, the district court did not err in 

denying this claim. 

Second, appellant claimed that his trial counsel failed to 

obtain police radio logs to ascertain the exact time various officers arrived 

at the scene. Appellant failed to demonstrate that his trial counsel's 

performance was deficient or that he was prejudiced. The officers testified 

regarding the approximate time-frame in which they arrived at the crime 

scene and appellant failed to demonstrate that it was unreasonable for 

counsel to not discover the exact time certain officers arrived. Appellant 

failed to demonstrate a reasonable probability of a different outcome at 

trial had counsel sought logs or other information showing the exact time 

officers arrived at the scene. Therefore, the district court did not err in 

denying this claim. 

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Third, appellant claimed that his trial counsel failed to obtain 

exculpatory evidence. Appellant failed to demonstrate that his trial 

counsel's performance was deficient or that he was prejudiced. Counsel 

filed a motion requesting disclosure of evidence. The district court granted 

appellant's request except for the use-of-force reports and disciplinary 

reports for the officers involved in this matter, as the district court 

reviewed the reports and concluded they were irrelevant to appellant's 

case. 2Appellant failed to demonstrate a reasonable probability of a 

different outcome at trial had counsel made further attempts to obtain 

evidence from the State. Therefore the district court did not err in 

denying this claim. 3 

2Appellant also claimed that his appellate counsel should have 

argued that the district court erred in denying his request for the use-offorce and disciplinary reports for the officers involved in this incident. 

"District courts are vested with considerable discretion in determining the 

relevance and admissibility of evidence," Archanian v. State, 122 Nev. 

1019, 1029, 145 P.3d 1008, 1016 (2006), and appellant failed to 

demonstrate that the district court abused its discretion in concluding the 

challenged reports were irrelevant. Therefore, appellant failed to 

demonstrate his appellate counsel was ineffective for failing to raise the 

underlying claim on appeal. See Kirksey v. State, 112 Nev. 980, 998, 923 

P.2d 1102, 1114 (1996); Strickland, 466 U.S. at 697. 

3To the extent appellant asserted that counsel should have obtained 

photographs from the State from inside the apartment, which could have 

shown appellant's view from the apartment windows, counsel argued at 

trial that the State did not collect such evidence. The State could not have 

disclosed evidence it did not possess and appellant failed to demonstrate 

that this was material evidence. See Daniels v. State, 114 Nev. 261, 267, 

956 P.2d 111, 115 (1998). To the extent appellant claimed counsel should 

have independently obtained photographs, appellant failed to demonstrate 

continued on next page . . . 

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4 

• 

Fourth, appellant claimed that his trial counsel should have 

hired a crime scene analyst and an expert in bullet ricochets. Appellant 

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

that he was prejudiced. The State's crime scene analyst testified 

regarding the bullet evidence, including instances where the bullets hit a 

surface and ricocheted. Appellant failed to demonstrate reasonable 

counsel would have hired an independent expert for this type of evidence, 

and appellant failed to demonstrate a reasonable probability of a different 

outcome at trial had further testimony regarding this evidence been 

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

Fifth, appellant claimed that his trial counsel should have 

hired a psychologist to testify regarding appellant's suicidal actions or 

present an insanity defense. Appellant failed to demonstrate that his trial 

counsel's performance was deficient or that he was prejudiced. Testimony 

regarding appellant's suicidal actions was presented during the trial and 

counsel argued those actions demonstrated appellant lacked intent for the 

charged crimes. In light of appellant's mother's testimony that appellant 

made statements that he intended to harm others, appellant failed to 

demonstrate a reasonable probability of a different outcome at trial had 

further testimony of this nature been presented. Moreover, appellant did 

not allege any specific facts that would indicate that he was in a 

. . . continued 

a reasonable probability of a different outcome at trial given the strength 

of the evidence of his guilt. 

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delusional state such that he could not know or understand the nature 

and capacity of his act or could not appreciate the wrongfulness of his act. 

See Finger v. State, 117 Nev. 548, 576, 27 P.3d 66, 84-85 (2001). 

Accordingly, appellant failed to demonstrate a reasonable probability of a 

different outcome at trial had counsel sought to present an insanity 

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

Sixth, appellant claimed that his trial counsel failed to argue 

that the State did not properly endorse expert witnesses pursuant to NRS 

174.234(2) because information about the substance of their anticipated 

testimony was not provided to the defense. Appellant failed to 

demonstrate that his trial counsel's performance was deficient or that he 

was prejudiced. The State's notice of expert witnesses stated that the 

defense was provided the substance of the expected testimony and a copy 

of the witnesses' reports. At trial, counsel questioned the experts 

extensively on their findings. Given this information, appellant failed to 

demonstrate reasonable counsel would have asserted the State failed to 

properly provide notice to the defense regarding the expert witnesses. 

Appellant failed to demonstrate a reasonable probability of a different 

outcome at trial had counsel raised arguments related to the notice of 

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

claim. 

Seventh, appellant claimed that his trial counsel failed to 

interview possible witnesses to show that no shots were fired before the 

police kicked the front door. Appellant failed to demonstrate that his trial 

counsel's performance was deficient or that he was prejudiced. The 

witnesses who testified at trial regarding the timing of the shots stated 

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4 5111M;iMIEVii 
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1:7,111=1:1411-4,1 

that they heard shots from inside appellant's apartment before the police 

kicked the front door in an attempt to enter the residence. Appellant 

failed to demonstrate that any other witness would have testified in a 

different manner or that further investigation would have revealed 

witnesses who could have testified in a different manner. See Molina v. 

State,120 Nev. 185, 192, 87 P.3d 533, 538 (2004). Therefore, the district 

court did not err in denying this claim. 

Eighth, appellant claimed that his trial counsel failed to argue 

that admission of the SWAT report without the report's author actually 

testifying violated his right to confrontation. Appellant failed to 

demonstrate that his counsel's performance was deficient or that he was 

prejudiced. The SWAT report was not admitted into evidence; the district 

court merely reviewed the report outside of the presence of the jury and 

concluded that the State had disclosed the pertinent information 

contained in the report to the defense prior to trial. Appellant failed to 

demonstrate a reasonable probability of a different outcome at trial had 

counsel argued the district court's review of the report violated appellant's 

right to confrontation. Therefore, the district court did not err in denying 

this claim. 4 

4Appellant also claimed that his appellate counsel was ineffective for 

failing to argue admission of the SWAT report violated his right to 

confrontation. As the report was not admitted into evidence, appellant 

failed to demonstrate his appellate counsel was ineffective for failing to 

raise the underlying claim on direct appeal. See Kirksev,112 Nev. at 998, 

923 P.2d at 1114; Strickland,466 U.S. at 697. 

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Ninth, appellant claimed that his trial counsel failed to 

demonstrate that the jury pool did not contain the appropriate percentage 

of minorities. Appellant failed to demonstrate that his trial counsel's 

performance was deficient or that he was prejudiced. Trial counsel argued 

during jury selection that minorities were underrepresented in the jury 

pool. On direct appeal, this court noted that appellant failed to 

demonstrate systematic exclusion of minorities from the jury pool. Dixon 

v. State, Docket No. 53700 (Order of Affirmance, March 17, 2011). 

Appellant provided no additional information to demonstrate systematic 

exclusion of minorities and, therefore, failed to demonstrate a reasonable 

probability of a different outcome at trial had counsel raised further 

arguments regarding this issue. See Williams v. State, 121 Nev. 934, 940, 

125 P.3d 627, 631 (2005). Therefore, the district court did not err in 

denying this claim. 

Tenth, appellant claimed that his trial counsel failed to object 

to the reasonable doubt instruction. Appellant failed to demonstrate that 

his trial counsel's performance was deficient or that he was prejudiced. 

Counsel sought different language in the reasonable doubt instruction, but 

the district court denied that request. Further, appellant failed to 

demonstrate a reasonable probability of a different outcome had counsel 

sought additional changes to the instruction as the statutorily-prescribed 

reasonable doubt instruction was used at trial. NRS 175.211; see, e.g., 

Chambers v. State, 113 Nev. 974, 982-83, 944 P.2d 805, 810 (1997); Milton 

v. State,111 Nev. 1487, 1492, 908 P.2d 684, 687 (1995). Therefore, the 

district court did not err in denying this claim. 

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-11- 
Eleventh, appellant claimed that his trial counsel failed to 

argue and obtain evidence to demonstrate that the police did not follow 

police procedures and policy during the incident. Appellant failed to 

demonstrate that his trial counsel's performance was deficient or that he 

was prejudiced. Counsel did argue that the police should have performed 

different actions during the incident. Given the strength of the evidence 

produced at trial, appellant failed to demonstrate a reasonable probability 

of a different outcome had counsel made additional arguments of this 

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

Twelfth, appellant claimed that his counsel failed to crossexamine witnesses. Appellant failed to demonstrate that his trial 

counsel's performance was deficient or that he was prejudiced. Counsel 

cross-examined the majority of the State's witnesses and appellant failed 

to demonstrate reasonable counsel would have questioned the few that 

counsel did not. Appellant failed to demonstrate a reasonable probability 

of a different outcome at trial had counsel questioned all of the State's 

witnesses or posed additional questions to those witnesses. Therefore, the 

district court did not err in denying this claim. 

Thirteenth, appellant claimed that his trial counsel was 

ineffective for failing to argue that the district court was biased because 

the court denied appellant's motions. Appellant failed to demonstrate 

deficiency or prejudice because adverse rulings "during the course of 

official judicial proceedings do not establish legally cognizable grounds for 

disqualification." In re Petition to Recall Dunleavy, 104 Nev. 784, 789-90, 

769 P.2d 1271, 1275 (1988). Therefore, the district court did not err in 

denying this claim. 

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WW1 
Parraguirre Cherry 

Fourteenth, appellant claimed that cumulative errors of 

counsel amounted to ineffective assistance of counsel. Appellant failed to 

demonstrate deficiency and/or prejudice for any of his claims and, 

therefore, failed to demonstrate that any errors of counsel cumulatively 

amounted to ineffective assistance of counsel. Therefore, the district court 

did not err in denying this claim. 5 

Having considered appellant's contentions and concluding 

they are without merit, we 

ORDER the judgment of the district court AFFIRMED. 6 

/ 

Hardesty 

5Appellant also appeared to claim that trial counsel failed to conduct 

pretrial investigation. Appellant failed to demonstrate deficiency or 

prejudice. Appellant made only a bare claim and provided no information 

for what counsel could have discovered had further investigation been 

undertaken. See Molina, 120 Nev. at 192, 87 P.3d at 538. Therefore, the 

district court did not err in denying this claim. 

6We have reviewed all documents that appellant has submitted in 

proper person to the clerk of this court in this matter, and we conclude 

that no relief based upon those submissions is warranted. To the extent 

that appellant has attempted to present claims or facts in those 

submissions which were not previously presented in the proceedings 

below, we have declined to consider them in the first instance. 

,J. 

9 
cc: Hon. Kathleen E. Delaney, District Judge 

Terry Dewayne Dixon 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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