HEMINGWAY v. STATE (2021)

ORDER OF AFFIRMANCE

Hemingway argues the district court erred by denying a claim of ineffective assistance of trial 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).

Hemingway asserts trial counsel was ineffective at the sentencing hearing for failing to present mitigating evidence. He claims counsel should have called witnesses regarding his good character as a husband and father and the effects of his childhood trauma on his substance abuse, and secured a substance abuse evaluation. The district court found that the sentencing judge reviewed Hemingway's long history of substance abuse, six felony convictions, one gross misdemeanor conviction, and thirteen misdemeanor convictions, including Hemingway's seven convictions that were DUI-related. Further, the district court found that, after discussing Hemingway's criminal history and risk to public safety, the sentencing judge opined, “It is just the sentence that is commanded by the history. There is no other way to look at it.” Additionally, the district court found that counsel summarized the mitigating evidence for the sentencing judge. These findings are supported by substantial evidence in the record. Hemingway has thus failed to demonstrate a reasonable probability of a different outcome had counsel presented the mitigating evidence in a different manner. Therefore, we conclude the district court did not en by denying this claim. Accordingly, we

ORDER the judgment of the district court AFFIRMED.