DAVONTAE WHEELER v. WARDEN NAJERA AND THE STATE OF NEVADA (2026)

ORDER OF AFFIRMANCE

Davontae Wheeler appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on August 29, 2022. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.

Wheeler was charged with conspiracy to commit robbery, attempted robbery with the use of a deadly weapon, and murder with the use of a deadly weapon. The State alleged that Wheeler and three others conspired to commit a robbery and that they subsequently attempted to rob, and shot and killed, a man in front of his home. Wheeler was convicted, pursuant to a jury verdict, of conspiracy to commit robbery and second-degree murder, and he was acquitted of attempted robbery with the use of a deadly weapon. Wheeler filed a direct appeal, and this court affirmed the judgment of conviction. See Wheeler v. State, No. 81374-COA, 2021 WL 3708828 (Nev. Ct. App. Aug. 18, 2021) (Order of Affirmance).

Wheeler filed the instant petition, alleging trial and appellate counsel were ineffective. The district court denied the petition, and this court affirmed in part, reversed in part, and remanded the matter for an evidentiary hearing on two of Wheeler's claims. See Wheeler v. Najera, No. 86086-COA, 2023 WL 7868670 (Nev. Ct. App. Nov. 14, 2023) (Order Affirming in Part, Reversing in Part and Remanding). Three witnesses testified at the evidentiary hearing on remand: trial counsel, an investigator hired by postconviction counsel, and Wheeler. Thereafter, the district court denied the petition, and Wheeler filed the instant appeal.

On appeal, Wheeler argues the district court erred by denying his remaining claims 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).

First, Wheeler claimed counsel was ineffective for failing to investigate his alibi. In particular, Wheeler contended that he was not one of the four individuals present at the scene of the crimes and that he had left that group of individuals and boarded a bus approximately 30 minutes prior to the shooting. Wheeler claimed counsel should have located the bus driver and investigated whether there was surveillance video showing him boarding the bus.

The district court found that counsel investigated Wheeler's alibi and attempted to obtain corroborating evidence to support it but that the investigation did not reveal any corroborating evidence. The district court's findings are supported by substantial evidence. Trial counsel testified that he was aware of Wheeler's alibi, that he spoke to his investigator about Wheeler's alibi, and that he asked his investigator to do “[w]hatever it took to follow up on that lead.” Counsel testified that his investigator was “excellent” but that he did not find any surveillance video or information regarding who was driving the bus. Moreover, although Wheeler testified that he told counsel he took a bus home, he did not testify that he told counsel any specifics regarding the location or route of the bus. In light of the foregoing,¹ Wheeler failed to demonstrate counsel's performance was deficient or a reasonable probability of a different outcome but for counsel's errors. See Strickland, 466 U.S. at 691 (stating “inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions”). Accordingly, we conclude the district court did not err by denying this claim.

Second, Wheeler claimed counsel was ineffective for failing to request an instruction in response to a jury question regarding conspiracy law. During deliberations, the jury submitted a written question asking, “If a person is aware of a crime being planned, but does nothing and wasn't there, is he guilty of conspiracy?” Wheeler contended that this question indicated one or more jurors believed he did not participate in the crimes and that counsel should have requested an instruction stating, “Mere knowledge or approval of, or acquiescence in, the object and purpose of a conspiracy without an agreement to cooperate in achieving such object or purpose does not make one a party to conspiracy.”

This “mere knowledge” instruction is an accurate statement of law. See Bolden v. State, 121 Nev. 908, 913, 124 P.3d 191, 194 (2005), receded from on other grounds by Cortinas v. State, 124 Nev. 1013, 1026-27, 195 P.3d 315, 324 (2008). Nonetheless, the district court found that counsel made a strategic decision not to ask for further instruction because he believed “the jury was deliberating in the right direction—in the direction of concluding Mr. Wheeler was not present at the shooting consistent with the defense put forth during the trial.”

Although the district court's finding is supported by substantial evidence, and “trial counsel's strategic or tactical decisions [are] virtually unchallengeable absent extraordinary circumstances,” Lara v. State, 120 Nev. 177, 180, 87 P.3d 528, 530 (2004) (internal quotation marks omitted)), the record indicates that counsel's strategy related to a “mere presence” instruction, rather than a “mere knowledge” instruction, and that counsel did not want to suggest to the jury that Wheeler may have been present at the scene of the crimes by requesting such an instruction. It is unclear how the aforementioned “mere knowledge” instruction would have subverted or otherwise conflicted with counsel's theory of defense that Wheeler was not present at the time of the shooting.

However, even assuming counsel was deficient for failing to request a “mere knowledge” instruction, Wheeler failed to demonstrate that there was a reasonable probability of a different outcome at trial had counsel requested such an instruction. Even if, as Wheeler contends, the jury believed he did not actually participate in the attempted robbery and shooting, the State did not have to prove that Wheeler was present or that he committed any overt act in pursuance of the conspiracy. Rather, the State had to prove only that Wheeler had agreed to commit a robbery. See NRS 199.490; see also Moore v. State, 117 Nev. 659, 662, 27 P.3d 447, 450 (2001) (“[T]he crime of conspiracy is completed when the unlawful agreement is reached.”).

The State presented strong evidence that Wheeler agreed to commit a robbery, including (1) a text message between two of Wheeler's codefendants, sent the morning before the crimes were committed, that indicated Wheeler agreed “to hit a house tonight”; (2) evidence indicating that Wheeler had exchanged bullets with a codefendant and that one of those bullets was fired at the victim; and (3) surveillance video indicating Wheeler was with his codefendants, and openly carrying a firearm, shortly before the crimes were committed. See Sena v. State, 138 Nev. 310, 328, 510 P.3d 731, 749 (2022) (“Direct evidence is not required to establish a conspiracy, but circumstantial evidence may be relied upon.” (quotation marks omitted)); see also Strickland, 466 U.S. at 696 (“Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.”). Accordingly, we conclude the district court did not err by denying this claim

In light of the foregoing, we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   We note Wheeler did not call trial counsel's investigator to testify at the evidentiary hearing.