VENEGAS v. STATE (2022)

ORDER OF AFFIRMANCE

Venegas argues the district court erred by denying his claims of ineffective assistance of trial and appellate counsel raised in his supplemental petition without conducting an evidentiary hearing. 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, 1113-14 (1996). Both components of the inquiry must be shown. Strickland, 466 U.S. at 687. 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). To warrant an evidentiary hearing, a petitioner must raise claims supported by specific factual allegations that are not belied by the record and, if true, would entitle him to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).

Venegas claimed that his trial counsel was ineffective for failing to investigate and interview witnesses and for failing to introduce their testimony at trial. Venegas’ bare claim did not allege what the results of any such investigation would have been, who the witnesses were, or what their testimony would have been. Therefore, Venegas failed to demonstrate that counsel's performance fell below an objective standard of reasonableness or a reasonable probability of a different outcome absent counsel's alleged errors. See Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004) (providing that a petitioner claiming counsel did not conduct an adequate investigation must allege what the results of a better investigation would have been and how it would have affected the outcome of the proceedings). Accordingly, we conclude the district court did not err by denying this claim without conducting an evidentiary hearing.

Venegas also claimed that his appellate counsel was ineffective for failing to fully investigate and prosecute his appeal. Venegas’ bare claim did not allege what appellate counsel should have investigated or what arguments appellate counsel should have raised on appeal. Therefore, Venegas failed to demonstrate that counsel's performance fell below an objective standard of reasonableness or that any omitted issues would have had a reasonable probability of success on appeal. Accordingly, we conclude the district court did not err by denying this claim without conducting an evidentiary hearing, and we

ORDER the judgment of the district court AFFIRMED.