HECTOR CARRILLO JR v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Hector Carrillo, Jr., appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on September 26, 2023. Sixth Judicial District Court, Humboldt County; Michael Montero, Judge.

Carrillo argues the district court erred by denying his claim of ineffective assistance of counsel. To demonstrate ineffective assistance of trial 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 must be shown, Strickland, 466 U.S. at 687, 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 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).

In his petition, Carrillo claimed counsel was ineffective for “waiv[ing] a jury trial or failing] to demand a jury trial.” In accordance with this court's prior order,¹ the district court held an evidentiary hearing on this claim, in which Carrillo and trial counsel testified. Thereafter, the district court determined counsel was deficient because she did not file a written waiver as required by NRS 175.011(1) or alternatively ensure Carrillo's waiver was validly made on the record in open court per Gallimort v. State, 116 Nev. 315, 997 P.2d 796 (2000). Nonetheless, the district court determined Carrillo failed to demonstrate prejudice because he was aware of his right to a jury trial, counsel discussed this right with him, and he chose to forgo this right in favor of a bench trial.

The district court's findings are supported by the record. Counsel testified that she was “absolutely sure” she discussed the right to a jury trial with Carrillo and that Carrillo chose to have a bench trial. She further testified that the conversation “[stuck] out in [her] mind” because Carrillo was going through a mental health court program at the time, and she specifically remembered discussing with Carrillo that putting this case behind him would help him in his efforts with that program and put him in good standing with Judge Montero, who was the head of the specialty court programs. Although counsel testified that she could not recall exactly what she said to Carrillo regarding the right to a jury trial due to the passage of time, she testified that she would have discussed the number of community members on the jury, his right and ability to take part in jury selection, and the requirement that the jury trial result in a unanimous verdict. She also testified that, had Carrillo not decided to waive his right to a jury trial, she would have filed a demand for a jury trial.

Carrillo contends counsel's testimony is not reliable because it was based on “what she would have done in the typical case,” she did not have access to her file, and her testimony conflicted with his own testimony that counsel never spoke to him about his right to a jury trial. However, counsel's testimony was not based solely on “what she would have done in the typical case,” and the district court could properly weigh the evidence and find counsel credible based on her testimony alone. See Ybarra v. State, 127 Nev. 47, 58, 247 P.3d 269, 276 (2011) (highlighting the district court's ability to better assess credibility at evidentiary hearings); see also Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008) (“This court will not reweigh the evidence or evaluate the credibility of witnesses because that is the responsibility of the trier of fact.”).

To the extent Carrillo contends prejudice must be presumed, he fails to cogently argue this claim. The United States Supreme Court has rejected the notion that Strickland prejudice must necessarily be presumed in postconviction proceedings if the underlying constitutional error would constitute “structural error” in the context of direct review. See Weaver v. Massachusetts, 582 U.S. 286, 294-305 (2017). Carrillo does not explain why prejudice should be presumed in this case, nor does he cite any legal authority to support his claim. Therefore, we decline to consider this claim. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (“It is appellant's responsibility to present relevant authority and cogent argument; issues not so presented need not be addressed by this court.”).

In light of the foregoing, Carrillo failed to demonstrate he was prejudiced by counsel's error,² and we conclude the district court did not err by denying Carrillo's claim of ineffective assistance of counsel. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   See Carrillo v. State, No. 87728-COA, 2024 WL 3593512 (Nev. Ct. App. July 30, 2024) (Order of Reversal and Remand).

2.   Carrillo also contends he was prejudiced because the victim's memory of the event at trial was already “vague” and would have been even more vague had it taken substantially longer to go to trial, thereby making it harder for the State to convict him. Carrillo did not raise this claim in his petition below, and we decline to consider it on appeal in the first instance. See State v. Wade, 105 Nev. 206, 209 n.3, 772 P.2d 1291, 1293 n.3 (1989).