IN THE SUPREME COURT OF THE STATE OF NEVADA 

LUIS ALONSO HIDALGO, III, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 67640 

SLED 

MAY 1 1 2016 

ORDER OF AFFIRMANCE 

This is an appeal from a district court order denying 

appellant's postconviction petition for a writ of habeas corpus. Eighth 

Judicial District Court, Clark County; Valerie Adair, Judge. 

Appellant contends that the district court erred by denying his 

claims of ineffective assistance of 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. 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 Kirksey v. State, 112 Nev. 980, 998, 

923 P.2d 1102, 1114 (1996) (applying Strickland to appellate counsel). 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 contends that the district court erred by 

denying his claim that trial counsel were ineffective for failing to tender 

appropriate instructions regarding second-degree murder. Specifically, 

appellant challenges the instructions relating to co-conspirator liability 

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and second-degree felony murder. Regarding the co-conspirator liability 

instructions, appellant failed to demonstrate that the instructions given at 

trial were inaccurate. See Bolden v. State, 121 Nev. 908, 923, 124 P.3d 

191, 201 (2005) (holding that "vicarious coconspirator liability may be 

properly imposed for general intent crimes only when the crime in 

question was a 'reasonably foreseeable consequence' of the object of the 

conspiracy"). To the extent appellant argues that second-degree murder is 

not a general intent crime pursuant to Ho v. Carey, 332 F.3d 587, 592 (9th 

Cir. 2003), his reliance on Ho is misplaced because Ho addressed 

California law. Regarding second-degree felony murder, even assuming 

that the jury was not properly instructed pursuant to Labastida v. State, 

115 Nev. 298, 307, 986 P.2d 443, 449 (1999), appellant failed to 

demonstrate that trial counsel were deficient or that he was prejudiced 

given the evidence presented at trial and the theories of vicarious liability 

alleged in the charging document. Therefore, we conclude that the district 

court did not err by denying this claim. 1 

Second, appellant contends that the district court erred by 

denying his claim that trial counsel were ineffective for failing to challenge 

the deadly-weapon enhancement based on Moore v. State, 117 Nev. 659, 

663, 27 P.3d 447, 450 (2001) (holding that "it is improper to enhance a 

sentence for conspiracy using the deadly weapon enhancement."). Because 

the deadly weapon enhancement was not applied to the conspiracy 

conviction, appellant failed to demonstrate that counsel was ineffective. 

To the extent appellant challenges the instruction given at trial based on 

1For the same reasons, we conclude the district court did not err by 

denying appellant's claim regarding appellate counsel. 

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Brooks v. State, 124 Nev. 203, 180 P.3d 657 (2008), no relief is warranted 

because the instruction complied with Brooks; moreover, appellant has 

challenged the instruction for the first time on appeal. Therefore, we 

conclude that the district court did not err by denying this claim. 

Third, appellant contends that the district court erred by 

denying his claim that trial counsel were ineffective for failing to proffer 

an instruction regarding the admissibility of co-conspirator statements 

that was consistent with the Federal Rules of Evidence, and appellate 

counsel was ineffective for failing to argue that the admission of his coconspirator's statements violated Crawford v. Washington, 541 U.S. 36, 56 

(2004). Appellant failed to demonstrate that the instructions given at trial 

were incorrect or that the statements should not have been admitted. See 

McDowell v. State, 103 Nev. 527, 529, 746 P.2d 149, 150 (1987) (adopting 

the "slight evidence" standard in Nevada); see also Crawford, 541 U.S. at 

56 (recognizing that statements made in furtherance of a conspiracy are 

nontestimonial); Lilly v. Virginia, 527 U.S. 116, 137 (1999) (recognizing 

that statements made in the furtherance of a conspiracy are reliable). 

Therefore, he fails to demonstrate that counsel were ineffective. 

Accordingly, we conclude that the district court did not err by denying this 

claim. 

Fourth, appellant contends that the district court erred by 

denying his claim that trial counsel were ineffective for failing to seek a 

severance during trial to admit evidence that was favorable to him but 

unfavorable to his codefendant. We disagree because the trial court did 

not decline to admit the evidence based on prejudice to appellant's 

codefendant and therefore a severance would not have been granted on 

this basis. Because appellant failed to demonstrate that a severance 

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would have been granted under the circumstances, trial counsel were not 

ineffective. Therefore, we conclude that the district court did not err by 

denying this claim. 

Fifth, appellant contends that the district court erred by 

denying his claim that trial counsel were ineffective for failing to seek a 

severance of the solicitation counts. Appellant failed to demonstrate that 

a severance would have been granted because the counts were clearly 

connected together. See Weber v. State, 121 Nev. 554, 573, 119 P.3d 107, 

120 (2005). Therefore counsel were not ineffective. Accordingly, we 

conclude that the district court did not err by denying this claim. 

Sixth, appellant contends that cumulative error entitles him 

to relief. Because we have found no error, there are no errors to cumulate. 

Having considered appellant's contentions and concluded that 

no relief is warranted, we 

ORDER the judgment of the district court AFFIRMED. 

cc: Hon. Valerie Adair, District Judge 

Richard F. Cornell 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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