HAYES v. STATE (2020)

ORDER OF AFFIRMANCE

James Howard Hayes, Jr. appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on May 16, 2019. Eighth Judicial District Court, Clark County; Eric Johnson, Judge.

In his petition, Hayes claimed appellate counsel was ineffective. To prove ineffective assistance of appellate counsel, 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. Strickland v. Washington, 466 U.S. 668, 687 (1984); Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1113-14 (1996). 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). We give deference to the 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). A petitioner may not make bare and naked claims to support his petition; instead his claims must be supported with specific factual allegations that are not belied by the record and, if true, would entitle him to relief See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).

First, Hayes claimed appellate counsel was ineffective for failing to assert “claims of error that were supported by the record.” As examples, Hayes listed “entrapment defense instructions” and “ineffective assistance of counsel.” Hayes' claim was bare and not supported by specific facts that, if true and not belied by the record, would entitle him to relief. Therefore, we conclude the district court did not err by denying this claim.

Second, Hayes claimed appellate counsel was ineffective for failing to communicate or provide a written summary of the merits and strategy to employ on appeal. Hayes failed to support this claim with specific facts that, if true, would have entitled him to relief. Therefore, Hayes failed to demonstrate counsel was deficient or that his claims would have had a reasonable probability of success on appeal had counsel communicated with him regarding the appeal. Accordingly, we conclude the district court did not err by denying this claim.

Third, Hayes claimed appellate counsel was ineffective for failing to accurately reference the record or authorities in the opening brief on appeal. Hayes only gave one example in his petition. He claimed counsel erroneously stated he walked down the hotel hallway checking doors when he only checked the door of the hotel room he was accused of burglarizing. Hayes failed to demonstrate appellate counsel’s alleged misstatement of the facts affected the claims raised on appeal. Therefore, Hayes failed to demonstrated his claims would have otherwise had a reasonable probability of success on appeal absent counsel’s alleged misstatement of the facts. Accordingly, we conclude the district court did not err by denying this claim.

Fourth, Hayes claimed appellate counsel was ineffective for failing to file a motion for his release pending appeal. Hayes failed to allege specific facts that, if true, would demonstrate such a motion would have been successful. See NRS 178.488; Bergna v. State, 120 Nev. 869, 875, 102 P.3d 549, 553 (2004). Therefore, we conclude the district court did not err by denying this claim.

Next, Hayes raised numerous claims of ineffective assistance of trial-level counsel. These claims included that counsel was ineffective for; failing to investigate, allowing him to take the stand unprepared, failing to conduct an in depth interview with Hayes, failing to locate all potential witnesses and have them interviewed, failing to secure discovery, failing to obtain a surveillance video expert, failing to file pretrial motions, failing to plan the direct examination of a defense witness, failing to consult with Hayes regarding concessions of fact, failing to consult with Hayes regarding defenses, and failing to submit jury instructions in writing.

The district court found these claims were bare and naked and Hayes failed to demonstrate he was prejudiced by counsel’s failure to perform the alleged actions. The record supports the decision of the district court, see Lader, 121 Nev. at 686, 120 P.3d at 1166, and, we conclude the district court did not err by denying these claims, see Hargrove, 100 Nev. at 502-03, 686 P.2d at 225.

Finally, Hayes raised several claims that were previously raised on direct appeal; the State withheld a surveillance videotape, the jury venire did not constitute a fair cross-section of the community, the evidence presented at trial was insufficient, and the district court should have given jury instructions on lesser-related offenses. Because these claims were previously raised and rejected on appeal, see Hayes v. State, Docket No. 72313-COA (Order of Affirmance, September 21, 2018), they were barred by the doctrine of the law of case, which cannot be avoided by a more detailed and precisely focused argument, see Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). Therefore, we conclude the district court did not err by denying these claims.

Having concluded Hayes is not entitled to relief, we

ORDER the judgment of the district court AFFIRMED.