RICHARD MILEWSKI v. WARDEN GARRETT LOVELOCK CORRECTIONAL CENTER AND THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Richard F. Milewski appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on February 16, 2021, and supplements. Eighth Judicial District Court, Clark County; Monica Trujillo, Judge.

Milewski contends that the district court erred in denying his claims of ineffective assistance of trial and appellate counsel. 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); see also Kirksey v. State, 112 Nev. 980, 998. 923 P.2d 1102, 1114 (1996) (applying the “reasonably effective assistance” test to claims of ineffective assistance of appellate counsel). Both components of the inquiry must be shown. Strickland, 466 U.S. at 687. A petitioner must raise claims supported by specific factual allegations that are not belied by the record and, if true, would entitle the petitioner to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984). 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, Milewski contends that trial counsel should have hired experts to evaluate the victims and testify at trial. He asserts counsel should have sought physical and psychological examinations of the victims, hired an independent child abuse expert to rebut the State's expert on grooming behavior, and introduced testimony of an expert related to the suggestibility of child witnesses.

Milewski failed to demonstrate that trial counsel performed deficiently in not seeking out the aforementioned experts. Trial counsel could not have compelled the victims to undergo psychological examinations, see NRS 50.700(1), and thus was not ineffective for failing “to submit to a classic exercise in futility,” Donovan v. State, 94 Nev. 671, 675, 584 P.2d 708, 711 (1978) (internal quotation marks omitted). Trial counsel testified at the evidentiary hearing that she did not seek to perform physical examinations because the State had only performed one sexual assault examination which did not yield any physical evidence of abuse. Counsel did not see any value in preparing an expert to testify about the lack of physical findings when she could highlight the State's failure to present physical evidence of abuse through cross-examination and argument. Counsel also did not seek an expert to rebut the State's grooming expert because she anticipated that the trial court would exclude that witness based on an untimely notice. When the trial court denied counsel's motion to strike and subsequent motion to continue on the eve of trial, counsel reasonably believed the case was too close to trial and she was too immersed in litigating other matters to consult, retain, and prepare an expert witness. See State v. Love, 109 Nev. 1136, 1138, 865 P.2d 322, 323 (1993) (“[D]efense counsel has a duty ‘to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ ” (quoting Strickland, 466 U.S. at 691)). Lastly, counsel testified that she requested funding for an expert on suggestibility which, to her knowledge, was not approved. Nevertheless, she considered the suggestibility of the child witnesses to be at issue and explored that issue at trial with questioning and argument. Thus, substantial evidence supports the district court's conclusion that counsel made reasonable decisions regarding expert testimony.

Milewski also failed to demonstrate prejudice. Milewski did not introduce any testimony at the evidentiary hearing describing what the potential defense experts would have testified to at trial. See Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004) (providing that a petitioner claiming that counsel did not conduct an adequate investigation must demonstrate what the results of a better investigation would have been and how it would affect the outcome of trial). Further, the evidence at trial was sufficient to show that Milewski repeatedly molested four young children. Three of the victims testified about the abuse, and the investigators and forensic interviewers testified about the victims’ statements regarding the abuse. Witnesses also testified to the prior statements describing abuse made by the one victim who did not testify at trial. Additionally, the State introduced letters written by Milewski and calls recorded from pretrial detention in which Milewski admitted to molesting the victims. Considering the evidence introduced at trial and the failure to introduce expert testimony at the evidentiary hearing, Milewski failed to demonstrate a reasonable probability of a different outcome had counsel pursued these investigations. Accordingly, the district court did not err in denying this claim.

Second, Milewski contends trial counsel was ineffective for not communicating or providing him with a copy of discovery materials. He insists that he may have accepted a guilty plea offer if he had been more familiar with the strength of the State's case. Milewski did not demonstrate that counsel performed deficiently or that he was prejudiced. The claim below did not specify what discovery material counsel failed to provide or describe how that discovery would have affected his decision to plead guilty instead of proceeding to trial. See Hargrove, 100 Nev. at 502-03, 686 P.2d at 225. Moreover, the record belies his claim as it shows that Milewski rejected a plea offer shortly before trial and over a year after he acknowledged receiving discovery materials. See id. at 503, 686 P.2d at 225. Accordingly, the district court did not err by denying this claim.

Third, Milewski contends that trial counsel lost letters Milewski had received from Jeannie Muleady which would have provided context for the letters and calls to her in which he admitted molesting the victims. He also argues that counsel failed to discuss with him calls that would have provided similar context. He asserts these letters and calls would show that Muleady was extorting him to confess to the charged offenses.

Milewski did not demonstrate that trial counsel performed deficiently. Trial counsel testified that Milewski informed her that he had given the letters to his prior counsel. The letters were not in the case file provided by prior counsel. Trial counsel then sought the letters from the investigator who worked with Milewski's previous counsel, who confirmed that he had provided her with all the correspondence in his possession. Despite not having these letters or calls, counsel still cross-examined Muleady about these communications. Counsel's examination revealed that Muleady was communicating with detectives while corresponding with Milewski, she had misrepresented the state of their relationship to Milewski, and she had requested writings memorializing all of their interactions. Milewski did not show what further actions counsel should have done to obtain the calls and letters or otherwise demonstrate that they could be obtained by counsel. See Rompilla v. Beard, 545 U.S. 374, 383 (2005) (“[T]he duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up.”). Milewski further failed to demonstrate prejudice in that he did not introduce any evidence at the evidentiary hearing to substantiate the contents of the calls and letters. Accordingly, the district court did not err in denying this claim.

Fourth, Milewski contends that appellate counsel should have raised appellate arguments related to Milewski's claims of error in the presentence investigation report (PSI). He suggests that it was important to address any errors because they may form the basis of the scoring determination on the Probation Success Probability Form (PSP), which follows him throughout his incarceration. He further argues that the district court erred in denying other claims of ineffective assistance of appellate counsel without conducting an evidentiary hearing by improperly finding that appellate counsel omitted the issues for strategic reasons.

“Effective assistance of appellate counsel does not mean that appellate counsel must raise every non-frivolous issues.” Kirksey, 112 Nev. at 998, 923 P.2d at 1113-14. In fact, “appellate counsel is most effective when she does not raise every conceivable issue on appeal.” Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989); see Knox v. United. States, 400 F.3d 519, 521 (7th Cir. 2005) (“Lawyers must curtail the number of issues they present, not only because [appellate] briefs are limited in length but also because the more issues a brief presents the less attention each receives, and thin presentation may submerge or forfeit a point.”).

Milewski did not plead sufficient facts to demonstrate that appellate counsel performed deficiently. Milewski's claim in the district court did not specifically identify errors, cite to relevant portions of the record contradicting the PSI, or address how appellate counsel could have shown the statements in the PSI were erroneous.¹ The record does not indicate that the district court relied on any of the purported errors Milewski identified at sentencing to his detriment and his PSP score was high enough to justify a recommendation for probation had the offenses not carried mandatory prison terms. Milewski did not allege sufficient facts to demonstrate that appellate counsel acted objectively unreasonable in declining to litigate an appellate issue that was not likely to affect Milewski's sentence and instead focusing on arguments that could result in the reversal of his convictions. See Blankenship v. State, 132 Nev. 500, 509, 375 P.3d 407, 413 (2016) (“A simple error in a PSP does not constitute impalpable or highly suspect evidence. Rather, the error must be such that it taints the PSI sentencing recommendation considered by the district court.”).

As to Milewski's remaining claims of ineffective assistance of appellate counsel, the district court concluded that Milewski did not plead sufficient facts to show that the omitted claims had a reasonable probability of success on appeal. This conclusion is supported by the record. Although Milewski identifies several issues—refusal to give requested instructions, potential bolstering of testimony by the court, prosecutorial misconduct during the opening, and potential Brady violations—neither his claim below nor argument on appeal establish that the issues would have a reasonable probability of success on appeal. See Kirksey, 112 Nev. at 998, 923 P.2d at 1114. He identified arguments but did not establish they were meritorious with citation to the record or authority suggesting the district court committed reversible error. Accordingly, the district court did not err in denying this claim without conducting an evidentiary hearing.

Having considered Milewski's 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.   Milewski's supplemental petition insists his petition specifically identifies the inaccuracies in the PSI which counsel should have challenged on appeal. While the amended appendices contain some exhibits from the pro se petition, they do not contain the petition itself. It is Milewski's responsibility to provide the record necessary for our review of the issues he has raised on appeal. NRAP 30(b)(1); Thomas v. State, 120 Nev. 37, 43 n.4, 83 P.3d 818, 822 n.4 (2004); see also Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) (“The burden to make a proper appellate record rests on appellant.”). We assume the omitted parts of the appellate record support the district court's decision. See Riggins v. State, 107 Nev. 178, 182, 808 P.2d 535, 538 (1991) (“[T]he missing portions of the record are presumed to support the district court's decision.”), rev'd on other grounds, 504 U.S. 127 (1992).