Murphy v. Gittere, 111219 NVCA, 77828-COA

Docket Nº:77828-COA
Opinion Judge:Gibbons, C.J.
Party Name:DAVID MARK MURPHY, Appellant, v. WILLIAM A. GITTERE, WARDEN, Respondent.
Judge Panel:Tao, Bulla, Judges. Hon. Carolyn Ellsworth, District Judge.
Case Date:November 12, 2019
Court:Court of Appeals of Nevada
 
FREE EXCERPT

DAVID MARK MURPHY, Appellant,

v.

WILLIAM A. GITTERE, WARDEN, Respondent.

No. 77828-COA

Court of Appeals of Nevada

November 12, 2019

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

Gibbons, C.J.

David Mark Murphy appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge.

Initially, Murphy argues the district court erred by denying his claims of ineffective assistance of counsel raised in his October 10, 2018, petition. In his petition, Murphy claimed his trial counsel was ineffective for failing to question Jorge Mendoza concerning Murphy's participation in the crimes. Murphy contended trial counsel should have asked Mendoza whether Murphy drove the vehicle to the victims' house, if Murphy participated in the planning of the crimes, and if Murphy participated in the commission of the crimes.

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 must be shown, Strickland, 466 U.S. at 697. To warrant an evidentiary hearing, a petitioner must raise claims supported by specific allegations not belied by the record, that if true, would entitle him to relief. See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).

At trial, Mendoza testified that Murphy participated in discussions where the codefendants planned the crimes and following the planning discussion, Murphy drove Mendoza and others to the victims' house. Mendoza also testified that Murphy waited in the vehicle while some of the codefendants entered the victims' house in an attempt to take the victims' marijuana, a shootout with the victims' ensued, and Mendoza was shot in his leg and he shot toward...

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