Brand v. State, 031920 NVCA, 76706-COA

Docket Nº:76706-COA
Opinion Judge:GIBBONS C.J.
Party Name:PATRICK COLE BRAND, Appellant, v. THE STATE OF NEVADA, Respondent.
Judge Panel:Tao J., Bulla J.
Case Date:March 19, 2020
Court:Court of Appeals of Nevada
 
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PATRICK COLE BRAND, Appellant,

v.

THE STATE OF NEVADA, Respondent.

No. 76706-COA

Court of Appeals of Nevada

March 19, 2020

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

GIBBONS C.J.

Patrick Cole Brand appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on December 13, 2017, and a supplemental petition filed on January 9, 2018, Eighth Judicial District Court, Clark County; Elissa F. Cadish, Judge.

Brand argues the district court erred by denying his claims that counsel was ineffective. The State argues Brand did not raise these claims in his petition below and improperly raised them for the first time at the evidentiary hearing. The State argues this was error, and this court should not consider these claims on appeal. After reviewing the petition, supplemental petition, and the evidentiary hearing transcript, we conclude the district court should have explicitly stated on the record Brand demonstrated good cause to raise new claims at the evidentiary hearing. See Barnhart v. State, 122 Nev. 301, 303, 130 P.3d 650, 652 (2006). However, we conclude the district court did not abuse its discretion by considering the new claims raised at the evidentiary hearing. See id. at 303, 130 P.3d at 651-52. Therefore, we will consider these claims on the merits on appeal.1

To prove ineffective assistance of counsel, a petitioner must demonstrate 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, 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 j 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...

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