JACOB WAYNE TOOMBS v. TIM GARRETT WARDEN THE STATE OF NEVADA AND CHARLES DANIELS DIRECTOR NEVADA DEPARTMENT OF CORRECTIONS (2025)

ORDER OF AFFIRMANCE

Jacob Wayne Toombs appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on September 8, 2023. Fourth Judicial District Court, Elko County; Mason E. Simons, Judge.

Toombs contends that the district court erred in denying several claims of ineffective assistance of counsel challenging counsel's performance during sentencing. To demonstrate ineffective assistance of counsel, a petitioner must show counsel's performance was deficient in that it fell below an objective standard of reasonableness and 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). Both components of the inquiry—deficiency and prejudice—must be shown. Strickland, 466 U.S. at 687. 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, Toombs asserts counsel was ineffective for failing to introduce favorable character evidence letters and testimony during sentencing. In support of this claim, Toombs included 16 letters attesting to Toombs’ good character, good work ethic, and community support.

The district court noted the letters were written by Toombs’ family members and close friends, indicating it reviewed the letters, and concluded that counsel should have introduced the letters in his possession at the time of the sentencing hearing. However, the district court—the same judge that imposed Toombs’ prison sentences—concluded there was not a reasonable probability of a more favorable outcome at sentencing had counsel presented the letters or similar testimony. This conclusion is supported by the record. The sentencing court's principal consideration was the seriousness of the conduct and that it involved the “worst conceivable way” of violating the victim's trust. The sentencing court also considered the impact the offense had on the victim and the findings that Toombs posed a moderate risk to reoffend as significant factors in its decision. Thus, Toombs failed to demonstrate a reasonable probability of a different result at sentencing had counsel presented the letters. Accordingly, the district court did not err in denying this claim.

Second, Toombs contends counsel was ineffective for not presenting evidence and argument that the sexual contact with the victim was consensual when prompted to do so by the sentencing court. He asserts the victim's social media profile indicated she was over 18 years old and social media posts show the victim singing and dancing along to sexually suggestive music after the assault occurred, which he asserts is behavior that is inconsistent with having been assaulted.

Decisions regarding what evidence to present at sentencing are tactical ones entrusted to defense counsel. McNelton v. State, 115 Nev. 396, 410, 990 P.2d 1263, 1273 (1999) (“The decision as to what mitigating evidence to present was a tactical one.”). And such decisions are virtually unchallengeable absent extraordinary circumstances. See Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (Strickland specifically commands that a court must indulge the strong presumption that counsel made all significant decisions in the exercise of reasonable professional judgment.” (internal quotation marks and alteration omitted)). Toombs entered a no contest plea to attempted sexual assault and by doing so, admitted that the State possessed evidence sufficient to show that the encounter was not consensual. Counsel testified that suggesting the victim bore any responsibility for the conduct could be viewed by the sentencing court as antagonizing the victim and eluding responsibility. Further, expert testimony admitted during the evidentiary hearing indicated the victim's behavior was not, as Toombs argues, inconsistent with having been the victim of a sexual assault. Because the record did not demonstrate extraordinary circumstances to question counsel's strategic decision, the district court did not err in denying this claim.

Third, Toombs argues counsel should have objected to unnoticed, uncharged conduct testimony from the victim's brother about Toombs’ prior relationships with teenage girls. Toombs failed to demonstrate his counsel's performance fell below an objective standard of reasonableness by not objecting to testimony about Toombs’ prior relationships. When the victim's brother discussed Toombs’ interactions with other underaged girls, Toombs’ counsel consulted with the prosecutor during this questioning and then the prosecutor guided the testimony back to the charged conduct and its effect on the victim. The district court concluded counsel's actions in response to the challenged testimony constituted a reasonable, tactical decision in light of the circumstances of this matter. “Trial counsel's strategic or tactical decisions will be virtually unchallengeable absent extraordinary circumstances.” Lara v. State, 120 Nev. 177, 180, 87 P.3d 528, 530 (2004) (internal quotation marks omitted), and Toombs fails to demonstrate that extraordinary circumstances existed. Toombs thus failed to demonstrate counsel's performance fell below an objective standard of reasonableness.

Further, considering the sentencing court's statements concerning the severity of the instant offense, Toombs failed to demonstrate a reasonable probability of a different outcome at sentencing had counsel objected to discussion of this information. See Randell v. State, 109 Nev. 5, 7-8, 846 P.2d 278, 280 (1993) (“[J]udges spend much of their professional lives separating the wheat from the chaff and have extensive experience in sentencing, along with the legal training necessary to determine an appropriate sentence.” (quotation marks omitted)). Accordingly, the district court did not err in denying this claim.

Fourth, Toombs argues counsel was ineffective for not objecting to the prosecutor's argument suggesting his actions were based on watching too many pornographic videos about sexually aggressive women. The district court concluded that an objection to the argument would have been futile. That conclusion is supported by the record. According to the psychosexual evaluation submitted at sentencing, Toombs reported viewing “Internet pornography on Porn Hub, typically MILF pornography.” During sentencing, the prosecutor suggested Toombs “watched a little too much porn movies as we read” when discussing how Toombs’ account of the offense suggested the victim initiated the sexual contact. This argument responded to the initial defense position that this case was “a he says/she says scenario” and suggested that Toombs’ perception may have been skewed by the media he consumed suggesting that the victim's account was more accurate. Because the argument was relevant to the sentencing determination and supported by the evidence admitted at the sentencing hearing, Toombs failed to demonstrate that counsel's performance was deficient or there was a reasonable probability of a different outcome but for counsel's actions. Accordingly, we conclude the district court did not err in denying this claim.

Lastly, Toombs argues the cumulative effect of counsel's errors warrants relief. Even if multiple instances of deficient performance could be cumulated for purposes of demonstrating prejudice, see McConnell v. State, 125 Nev. 243, 259 & n.17, 212 P.3d 307, 318 & n. 17 (2009), Toombs failed to demonstrate counsel's alleged errors, considered cumulatively, would have entitled him to relief, see Mulder v. State, 116 Nev. 1, 17, 992 P.2d 845, 854-55 (2000) (stating the relevant factors to consider in evaluating a claim of cumulative error). Toombs only demonstrated that counsel performed deficiently in one respect, which was, in and of itself, not prejudicial. Thus, the district court did not err in denying this claim.¹

Having considered Toombs’ contentions and concluding that they lack merit, we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   The State did not respond to this argument in its responsive brief. Although this court could treat the failure to respond as confession of error, see Polk v. State, 126 Nev. 180, 184-85, 233 P.3d 357, 359-60 (2010), we elect not to do so where, as here, the claim clearly lacks merit, see Hewitt v. State, 113 Nev. 387, 392, 936 P.2d 330, 333 (1997), overruled on other grounds by Martines v. State, 115 Nev. 9, 11-12, 974 P.2d 133, 134-35 (1999).