Lee v. State, 111519 NVSC, 76330

Docket Nº:76330
Opinion Judge:GIBBONS, C.J.
Party Name:MICHAEL ALAN LEE, Appellant, v. THE STATE OF NEVADA, Respondent.
Judge Panel:Silver, J., Douglas, J. Hon. Stefany Miley, District Judge
Case Date:November 15, 2019
Court:Supreme Court of Nevada
 
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MICHAEL ALAN LEE, Appellant,

v.

THE STATE OF NEVADA, Respondent.

No. 76330

Supreme Court of Nevada

November 15, 2019

UNPUBLISHED OPINION

ORDER OF REVERSAL AND REMAND

GIBBONS, C.J.

This is an appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Stefany Miley, Judge. Appellant Michael Alan Lee argues that the district court erred in denying his claim that trial and appellate counsel should have challenged certain jury instructions as misstating the elements of first-degree murder based on child abuse. We agree.1

To demonstrate ineffective assistance of counsel, a petitioner must show that counsel's performance was deficient in that it fell below an objective standard of reasonableness and that prejudice resulted in that there was a reasonable probability of a different outcome absent counsel's errors. 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 also Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996) (applying Strickland to claims of ineffective assistance of appellate counsel). 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), and both components of the inquiry must be shown, Strickland, 466 U.S. at 697.

Lee argues that trial and appellate counsel should have challenged the jury instructions on first-degree felony murder by child abuse because they impermissibly expanded the definition of child abuse to encompass child neglect. NRS 200.030(1)(b) provides that murder committed in the perpetration of child abuse is first-degree murder. Child abuse, in this context, is "physical injury of a nonaccidental nature to a child under the age of 18 years." NRS 200.030(6)(b). We have held that jury instructions that expand the category of offenses that constitute child abuse for purposes of defining first-degree murder are impermissible, particularly where they permit a jury to convict a defendant of first-degree felony murder...

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