FLUCKIGER v. STATE (2026)

ORDER OF AFFIRMANCE

Fluckiger argues the district court erred by denying his claims that trial counsel were ineffective. 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).

First, Fluckiger claimed counsel were ineffective for failing to investigate and present evidence that his roommate had access to his computer. Fluckiger contended this evidence would have shown that the roommate may have put the illegal images on his computer. The district court found that counsel were not deficient for failing to investigate the roommate because Fluckiger failed to provide counsel with sufficient information to locate the roommate. The district court also found Fluckiger failed to demonstrate a reasonable probability of a different outcome at trial had counsel investigated the roommate, given the overwhelming evidence presented at trial. The district court found counsel's testimony credible and Fluckiger's testimony incredible.

The record supports the findings of the district court. At the evidentiary hearing, counsel testified that Fluckiger told them about his roommate but failed to provide any further information to locate the roommate other than offering his first name and speculation he lived in Fallon. Counsel also testified that they inspected the computer and its contents and could not find any evidence that anyone other than Fluckiger used the computer. Finally, the evidence at trial was overwhelming. The child victim testified with particularity regarding several instances where Fluckiger committed lewdness on the victim or sexually assaulted her. Further, Fluckiger produced two films where he sexually molested or assaulted the victim and the challenged computer contained at least one film of Fluckiger assaulting the victim. Thus, Fluckiger failed to demonstrate counsel were deficient or a reasonable probability of a different outcome at trial had counsel investigated the roommate. Therefore, we conclude the district court did not err by denying this claim.

Second, Fluckiger claimed counsel were ineffective for failing to investigate and present information that the victim and her family sought or were going to seek U-visas based on the abuse. Fluckiger contended counsel could have used this information to impeach the victim and her family. The district court found counsel made a strategic decision not to present information regarding the immigration status of the victim and the family or any possible visa for which they might apply. Specifically, the district court found counsel assessed that challenges to the immigration status of the victim or her family via cross-examination were unlikely to help the defense case. The district court also found Fluckiger failed to demonstrate a reasonable probability of a different outcome at trial had counsel presented the immigration status or the speculative U-visa issue to the jury given the overwhelming evidence presented at trial.

The record supports the findings of the district court. At the evidentiary hearing, counsel testified that presenting the immigration status of the victim or her family, or their seeking of U-visas, would not be helpful at trial, especially where Fluckiger recorded his abuse of the victim. Further, Fluckiger did not present any evidence at the evidentiary hearing to support his claim that the victim or her family sought U-visas. Thus, Fluckiger failed to demonstrate counsel were deficient or a reasonable probability of a different outcome at trial had counsel investigated or presented the victim's or her family's immigration status or information that they sought U-visas. Therefore, we conclude the district court did not err by denying this claim. Accordingly, we

ORDER the judgment of the district court AFFIRMED.¹

FOOTNOTES

1.   Fluckiger also argues the district court erred by denying his claims that counsel were ineffective for failing to communicate with him regarding trial strategy and possible defenses and for failing to prepare for sentencing. These claims were not raised below, and we decline to consider them for the first time on appeal. State v. Wade, 105 Nev 206, 209 n.3, 772 P.2d 1291, 1293 n.3 (1989).