Steve v. State

• Decision Date: 16 January 2014
• Docket Number: No. 63053,63053
• Parties: LAWSON GUY STEVE, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Supreme Court

LAWSON GUY STEVE, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 63053

SUPREME COURT OF THE STATE OF NEVADA

FILED: January 16, 2014

An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.

ORDER OF AFFIRMANCE

This is a proper person appeal from an order of the district court denying appellant's post-conviction petition for a writ of habeas corpus. Sixth Judicial District Court, Lander County; Richard Wagner, Judge.¹

In his November 18, 2011, petition, appellant raised numerous claims of ineffective assistance of trial counsel. To prove ineffective assistance of counsel, a petitioner must demonstrate that his 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 that, 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). To demonstrate prejudice sufficient to invalidate a judgment of conviction based on a guilty plea,² the petitioner must show that, but for trial counsel's errors, petitioner would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Kirksey v. State, 112 Nev. 980, 988, 923 P.2d 1102, 1107 (1996). Both components of the inquiry must be shown. Strickland, 466 U.S. at 697. 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 claimed that trial counsel was ineffective for filing pretrial motions utilizing Brady v. Maryland, 373 U.S. 83 (1963), a post-conviction remedy, to address ongoing discovery violations and speedy trial violations. Appellant claimed that counsel should have challenged the State's failure to turn over discovery as prosecutorial misconduct because the State tainted and fabricated evidence, abandoned its role as prosecutor, misrepresented evidence, and became a witness inthe chain of custody. Appellant failed to demonstrate deficiency or prejudice. From the onset, counsel filed numerous motions compelling discovery and challenging the delay in receiving laboratory results. Appellant failed to demonstrate prejudice by counsel's filing of motions to ensure all pertinent discovery was completed prior to trial. To the extent he claimed counsel should have alleged prosecutorial misconduct, appellant failed to demonstrate deficiency or prejudice as he failed to demonstrate that such a challenge would have been successful, and counsel is not deficient for failing to make futile motions. See Donovan v. State, 94 Nev. 671, 675, 584 P.2d 708, 711 (1978). Therefore, the district court did not err in denying this claim.

Second, appellant claimed that trial counsel failed to challenge the jail's policies that limited his communication with counsel and that prevented him from preparing for the initial trial date. Appellant failed to demonstrate deficiency or prejudice. Counsel raised the issue before the district court on at least two separate occasions and obtained an order specifically directing the jail to allow appellant to communicate with persons outside the jail in furtherance of trial preparation. Additionally, the initial trial date was continued and appellant was eventually released on house arrest during the pretrial proceedings. Appellant did not claim that he was subsequently denied communication with counsel in order to prepare for the rescheduled trial. Therefore, the district court did not err in denying this claim.

Third, appellant claimed that trial counsel failed to object to judicial coercion regarding the district court's involvement in the negotiation process. Appellant failed to demonstrate prejudice, as theunderlying claim of judicial coercion was considered on appeal and we concluded that appellant failed to demonstrate that any reversible error occurred. Steve v. State, Docket No. 56550 (Order of Affirmance, June 8, 2011). Appellant failed to demonstrate his counsel was ineffective in this regard. Therefore, the district court did not err in denying this claim.

Appellant also claimed that trial counsel (1) failed to contact any witness prior to a pretrial conference for the initial trial date, (2) failed to file the second motion to dismiss in a timely manner so that it could be argued at a hearing, (3) failed to make a motion to strike the three remaining counts as defective for failing to include a factual basis after successfully arguing to strike the first two counts of the information, (4) failed to require the State to give appellant notice of any unlawful act constituting a crime, and (5) failed to do anything to prevent the State from convicting him of pistol-whipping the victim. Appellant failed to demonstrate prejudice as he failed to indicate what difference the actions would have made in his decision to plead guilty. As to appellant's claims regarding the lack of a factual basis, the State offered what it could prove if appellant chose to proceed to trial, and the district court determined it had an adequate factual basis to accept the plea. See Tiger v. State, 98 Nev. 555, 558, 654 P.2d 1031, 1033 (1982). After listening to the State's presentation of the evidence, appellant indicated that he was entering his plea to avoid the possibility of being convicted of greater offenses and facing harsher penalties. See id. We therefore conclude that the district court did not err in denying this claim.

Next, appellant claimed that he received ineffective assistance from his appellate counsel. To prove ineffective assistance of appellatecounsel, a petitioner must demonstrate that counsel's performance was deficient in that it fell below an objective standard of reasonableness, and resulting prejudice such that the omitted issue would have a reasonable probability of success on appeal. Kirksey, 112 Nev. at 998, 923 P.2d at 1114. Both components of the inquiry must be shown. Strickland, 466 U.S. at 697. Appellate counsel is not required to raise every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). Rather, appellate counsel will be most effective when every conceivable issue is not raised on appeal. Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989).

First, appellant claimed that appellate counsel failed to properly challenge the district court's involvement during negotiations in violation of Cripps v. State, 122 Nev. 764, 137 P.3d 1187 (2006), and to demonstrate how the district court's involvement prejudiced appellant by providing a complete record on appeal. Appellant failed to demonstrate deficiency or prejudice. Appellate counsel raised the issue on appeal, and while we established that the district court erred by not recording its discussion with counsel, we concluded that the participation could not reasonably have been viewed as having a material effect on appellant's decision to plead guilty. Steve v. State, Docket No. 56550 (Order of Affirmance, June 8, 2011). Appellant failed to identify an omitted part of the record that would have altered this conclusion. Therefore, the district court did not err in denying this claim.

Second, appellant claimed that appellate counsel failed to raise numerous issues pertaining to discovery and Brady violations. Appellant claimed that the State failed to surrender certain evidence fortesting, to disclose the results from original testing, and to gather and test all the blood evidence. Appellant failed to demonstrate deficiency or prejudice. While there was a delay in the processing of certain evidence, tests and reports had been completed by the State and the defense at the time appellant entered his plea. At sentencing, the defense presented evidence that appellant sustained a defensive gunshot wound to the hand and that appellant's blood was present on the victim's jacket, supporting appellant's theory that the victim shot him in the hand during a struggle. Furthermore, the defense presented evidence that the object removed from the victim's head was part of a gun sight, as opposed to a bullet, thereby demonstrating that appellant did not shoot the victim in the head. Appellant failed to demonstrate that the State withheld reports or evidence. Furthermore, appellant failed to demonstrate that but for the evidence having been withheld, he would not have pleaded guilty but would have insisted on going to trial. See generally State v. Huebler, 128 Nev._, 275 P.3d 91 (2012) (applying in the context of a guilty plea the three elements of a successful Brady claim: the evidence is favorable, it was withheld by the State, and it was material), cert. denied, __ U.S. __, 133 S. Ct. 988 (2013). To the extent appellant claimed that the State failed to gather and test all blood evidence from the scene, appellant failed to demonstrate deficiency or prejudice as he failed to demonstrate that a challenge would have been successful. See Daniels v. State, 114 Nev. 261, 267-68, 956 P.2d 111, 115 (1998) (agreeing that law enforcement generally has no duty to collect all potential evidence and providing that the defendant must establish the evidence was likely to have been material and the failure to gather the evidence was a result of negligence, grossnegligence, or bad faith)...