JEFFREY MICHAEL RICHARDS v. THE STATE OF NEVADA (2026)

ORDER OF AFFIRMANCE

Jeffrey Michael Richards appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on August 14, 2023, and a supplemental petition filed on October 31, 2024. Second Judicial District Court, Washoe County; Hon. Barry L. Breslow, Judge.

Richards was convicted, pursuant to a jury verdict, of two counts of sexual assault against a vulnerable person. In or around July 2019, Richards initiated a relationship with D.F. and subsequently sexually assaulted her. D.F., who was 21 years old at the time, was born with a congenital defect and had a documented history of intellectual disability. The trial evidence established that D.F. had significant cognitive and social impairments. Cognitive testing performed while D.F. was attending high school on individualized education plans (IEPs) indicated that D.F. was mildly intellectually impaired and had deficits in her social and life skills. Among other results, the cognitive testing indicated D.F. had an I.Q. of 64, had coping skills equivalent to those of a five-year-old child, and had socialization skills roughly equivalent to those of a 10-year-old child. D.F. had never lived independently, did not have a bank account, did not have a driver's license, and had not been able to maintain employment for more than three weeks.

The trial court sentenced Richards to serve an aggregate term of 22 years to life in prison. This court affirmed Richards’ judgment of conviction on direct appeal. See Richards v. State, No. 83868-COA, 2022 WL 16703260 (Nev. Ct. App. Nov. 3, 2022) (Order of Affirmance). Richards filed a timely pro se postconviction habeas petition, which was later supplemented by appointed postconviction counsel. In his petition and supplement, Richards alleged the ineffective assistance of trial and appellate counsel. The district court conducted an evidentiary hearing, at which trial and appellate counsel testified, and subsequently denied the petition. Ineffective Assistance of Trial Counsel

On appeal, Richards argues the district court erred by denying his 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, Richards claimed trial counsel was ineffective for failing to object to allegedly inadmissible hearsay which “infus[ed] the State expert's testimony.” Richards argued the State's expert, clinical psychologist Dr. Joann Behrman-Lippert, relied upon hearsay and double hearsay evidence to form the basis of her trial testimony, including: D.F.’s school records; cognitive testing scores; D.F.’s videotaped statements to police; videotaped statements to police provided by D.F.’s mother and aunt; and a letter from the Nevada Department of Employment Training and Rehabilitation regarding D.F.’s eligibility for vocational programming based on her diagnosis of mild intellectual disability. Richards argued Dr. Behrman-Lippert “effectively introduced extensive un-cross-examined hearsay into evidence” by “recount[ing] all the hearsay that she relied upon to reach her conclusion that [D.F.] has a mild intellectual disability” and “would have difficulty objecting to unwanted behavior.” As to prejudice, Richards argued that, had trial counsel objected to Dr. Behrman-Lippert's testimony, the objection would have been sustained and the outcome would have been different because there would have been no expert opinion at trial regarding whether D.F. was so intellectually disabled as to be considered a vulnerable person or unable to resist Richards’ sexual advances.

In denying this claim, the district court found that Richards failed to demonstrate trial counsel's assistance fell below an objective standard of reasonableness because experts are permitted to rely on hearsay in forming an opinion and that an objection based on hearsay alone would not have been successful. The district court further found that Richards failed to demonstrate how, but for trial counsel's lack of objection, the outcome of trial would have been different given the weight of the evidence against him and the fact that the documents Dr. Behrman-Lippert relied on in forming her opinions had been admitted as exhibits independently from her testimony.

On appeal, Richards argues the district court's denial of this claim was premised on a misapprehension of the supreme court's decision in Flowers v. State, 136 Nev. 1, 456 P.3d 1037 (2020). Specifically, Richards argues that the district court failed to appreciate that Flowers places limits on an expert's ability to relate nontestimonial hearsay to a jury. Flowers provides that “[a]n expert witness may rely on hearsay, including testimonial hearsay, without[ ] violating the Confrontation Clause, so long as the testifying expert does not ‘effectively’ introduce the un-cross-examined testimonial hearsay into evidence.” Id. at 9, 456 P.3d at 1046. The record reflects that the documents Dr. Behrman-Lippert relied on to form her opinions regarding D.F.’s cognitive abilities and her ability to consent to sexual contact were introduced and admitted through other witnesses with personal knowledge of the documents’ contents. Thus, while Dr. Lippert-Behrman identified specific testing results and statements contained within those documents during her testimony, she did not “effectively introduce” the statements because they were already a part of the trial record. Thus, the record supports the district court's conclusion that trial counsel was not deficient for failing to object to Dr. Lippert-Behrman's testimony.

The record also supports the district court's conclusion that Richards failed to establish a reasonable probability of a different outcome. Even if trial counsel had objected to Dr. Lippert-Behrman's testimony and the trial court had sustained such an objection and precluded Dr. Behrman-Lippert from testifying regarding hearsay contained within the documents, she still would have been able to offer her conclusions without identifying the specific statements or test results upon which she based those conclusions. Moreover, as identified above, there was overwhelming trial evidence demonstrating D.F. was intellectually disabled and either could not consent to sexual contact or was vulnerable to having her will overborne by Richards. We therefore conclude the district court did not err in denying this claim.

Second, Richards claimed trial counsel was ineffective for failing to impeach D.F. with text messages she exchanged with him and a third party that demonstrated she had the capacity to grant or withhold consent to sexual contact. The record indicates that police recovered text messages exchanged between D.F. and Richards in which they discussed cuddling and “lovemaking,” as well as text messages between D.F. and a party identified as “Sam” in which D.F. declined a request for sexual contact. Trial counsel testified at the evidentiary hearing on Richards’ petition that he was concerned that, given D.F.’s presentation as a “feeble” person, the jury would sympathize with her if he was too forceful in his cross-examination. Further, trial counsel testified he believed this line of impeachment would have been “futile” because he experienced great difficulty in effectively cross-examining D.F. The district court found that trial counsel made a reasonable tactical decision to not impeach D.F. with the text messages and that Richards failed to demonstrate prejudice because he did not explain how the outcome of trial would have been different.

The record supports the district court's conclusions regarding trial counsel's strategic decision, and Richards failed to allege extraordinary circumstances sufficient to challenge counsel's strategic decision. See Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996) (“A strategy decision, such as who should be called as a witness, is a tactical decision that is virtually unchallengeable absent extraordinary circumstances.” (internal quotation marks omitted)). Richards also failed to demonstrate a reasonable probability of a different outcome. Even assuming trial counsel had impeached D.F. with the text messages, there was still substantial evidence demonstrating D.F. was unable to consent to sexual contact due to her intellectual disability. Thus, we conclude the district court did not err by denying this claim.

Ineffective Assistance of Appellate Counsel

Next, Richards asserts the district court erred by denying his claims of ineffective assistance of appellate counsel. To demonstrate ineffective assistance of appellate counsel, a petitioner must show that counsel's performance was deficient in that it fell below an objective standard of reasonableness and prejudice resulted in that the omitted issue would have a reasonable probability of success on appeal. 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). And “[g]enerally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Johnson v. State, 133 Nev. 571, 576, 402 P.3d 1266, 1274 (2017) (quotation marks omitted).

First, Richards asserted appellate counsel failed to challenge the trial court's denial of a motion to suppress Richards’ statements to law enforcement due to pre-indictment delay. Although appellate counsel pursued a claim that Richards’ statement to law enforcement should have been suppressed because the interviewing detective's Miranda ¹ advisement was improper, Richards claimed that appellate counsel should have instead argued the State unreasonably delayed charging him with sexual assault so that law enforcement could interview him about his relationship with D.F. The district court found that appellate counsel's performance was not deficient because he made a reasonable strategic decision that the Miranda claim was stronger than the pre-indictment delay claim. The district court further found that Richards failed to establish that this omitted claim would have had a reasonable probability of success on appeal.

The record supports the district court's findings. To make a successful due process challenge based on pre-indictment delay, “the accused must make two requisite showings: (1) that he or she suffered actual, nonspeculative prejudice from the delay; and (2) that the prosecution intentionally delayed bringing the charges in order to gain a tactical advantage over the accused, or that the prosecution delayed in bad faith.” Wyman v. State, 125 Nev. 592, 601, 217 P.3d 572, 578 (2009). Appellate counsel testified that, based on his review of the record, he could not identify facts that satisfied the two-factor Wyman test. Further, appellate counsel noted this claim would have been subject to review for an abuse of discretion, which he believed was less favorable than the de novo review standard of review that applied to the Miranda claim. Appellate counsel's decision to forgo this claim was thus a tactical one, see Doleman, 112 Nev. at 848, 921 P.2d at 280-81, and counsel is not ineffective for choosing not to raise every possible issue on appeal. Richards therefore failed to demonstrate appellate counsel's performance was deficient.

Richards also failed to demonstrate this issue had a reasonable probability of success on appeal. In his supplement, Richards argued he was prejudiced by appellate counsel's decision not to pursue a pre-indictment delay claim because “it is reasonably probable that the appellate court would have reversed had it considered the issue” and his statements to law enforcement would have been suppressed instead of being “extensively used ․ against him because he admitted [to] the intimate contacts” with D.F. As discussed above, however, appellate counsel noted his assessment of the record was that it did not contain facts which would have satisfied the two-factor Wyman test, and we conclude the record supports such an assessment. Hence, Richards has not shown prejudice from appellate counsel's omission of this claim. We therefore conclude the district court did not err in denying this claim.

Second, Richards asserted appellate counsel failed to challenge what he categorized as improperly noticed expert witness testimony by D.F.’s school psychologist. Richards claimed that, because trial counsel lodged an early objection to the scope of the school psychologist's testimony, appellate counsel was deficient for failing to raise the issue on direct appeal.² The district court found that appellate counsel made a tactical decision regarding which claims to assert on direct appeal and that Richards failed to establish the omitted issue was clearly stronger than those appellate counsel pursued. The district court further found that Richards failed to establish that the omitted claim had a reasonable probability of success on appeal.

The district court's findings are supported by the record. At trial, the State called D.F's school psychologist Dr. Andrew Haycock to testify as a lay witness regarding his personal observations of D.F. and the reports he created after evaluating D.F. for participation in the school district's special education program as well as D.F.’s IEPs, cognitive testing, progress as a student, and earning of an adjusted diploma. During an early portion in Dr. Haycock's testimony, in which he was describing the school district's eligibility policies for special education programming, trial counsel objected that the testimony was “beyond the scope of layperson testimony.”³ The trial court overruled the objection, and trial counsel made no other objections to the scope of the testimony.

At the evidentiary hearing on Richards’ petition, appellate counsel testified that he considered the testimony to which trial counsel objected to be “innocuous and didn't really rise to the level of what I would consider to be an expert opinion.” Appellate counsel explained that, even if he had believed Dr. Haycock's testimony to be problematic, the lack of additional objections by trial counsel and the absence of any ruling from the trial court indicating the witness exceeded the scope of permissible lay witness testimony weighed against raising the issue on appeal. Further, appellate counsel testified he focused on raising claims that he felt had a stronger likelihood of success on appeal. Because appellate counsel made a tactical decision to omit this claim, Richards failed to demonstrate appellate counsel's performance was deficient. See Doleman, 112 Nev. at 848, 921 P.2d at 280-81.

Richards also failed to demonstrate this omitted claim had a reasonable probability of success on appeal. Richards asserted that, because Dr. Haycock's testimony was “critical to establish that [D.F.] was a protected person,” this claim had a reasonable probability of success on direct appeal. However, given the lack of additional objections by trial counsel to the scope of Dr. Haycock's testimony and the absence of any definitive ruling by the trial court on the sole objection trial counsel did lodge, Richards has not demonstrated that this claim had a reasonable probability of success on appeal. Moreover, the trial record contains substantial evidence demonstrating D.F.’s status as a vulnerable person, including the school records testified to by Dr. Haycock, the testimony of the State's expert witness interpreting those school records, the testimony of D.F.’s mother and aunt regarding her intellectual disabilities and their conversations with Richards about those disabilities, and Richards’ statements to law enforcement demonstrating he was aware of D.F.’s intellectual and social deficits. Accordingly, Richards has failed to demonstrate he was prejudiced by appellate counsel's omission of this claim. We therefore conclude the district court did not err in denying this claim.

Third, Richards claimed appellate counsel failed to challenge the trial court's finding that D.F. was competent to testify and its refusal to have her competency evaluated under NRS 50.700. In denying this claim, the district court found that Richards failed to demonstrate appellate counsel's performance was deficient because he had not demonstrated that this omitted issue was clearly stronger than the claims appellate counsel raised on direct appeal. The district court further found Richards failed to establish he was prejudiced because he had not established the omitted issue had a reasonable probability of success on appeal.

The district court's findings are supported by the record. The record reflects that D.F. responded to the State's questions on direct examination and some from the defense on cross-examination. As the cross-examination continued, however, D.F. began answering “I don't remember” to most of trial counsel's questions. During a hearing outside the presence of the jury, trial counsel argued that D.F. did not appear to be confused by his questions, but rather “appear[ed] to just be stifling the defense at every opportunity,” and thus was essentially “unavailable” to testify. Trial counsel argued that this violated Richards’ Sixth Amendment confrontation rights and asked the court to either declare a mistrial or strike D.F.’s testimony. The trial court denied both requests. When trial counsel resumed cross-examining D.F., she still answered “I don't remember” to many of trial counsel's questions. The trial court opted to continue cross-examination to the next day because D.F. appeared to be “wearing out; wearing down” and her “battery [was] running low, to put it another way.”

When trial counsel resumed cross-examination the next day, D.F. answered “I don't remember” to most of the questions trial counsel posed. Given this, the trial court ordered the parties to submit briefing regarding whether D.F. was effectively unavailable and whether she was competent to testify. In his brief to the trial court, Richards primarily focused on the alleged Sixth Amendment violation and also alleged that D.F. was not competent to testify. Notably, Richards did not argue in his brief that the trial court should make D.F. submit to a competency evaluation, although he did request the trial court do so at the hearing on the parties’ briefing. The trial court never ruled on this request. At the conclusion of the hearing, the trial court determined that Richards’ Sixth Amendment confrontation right had not been violated and that D.F. was competent to testify.

At the evidentiary hearing on Richards’ petition, appellate counsel testified that he considered raising a claim on direct appeal regarding D.F.’s competency to testify but ultimately decided to focus on appealing the trial court's determination that D.F.’s testimony on cross-examination had not violated Richards’ Sixth Amendment confrontation right and its denial of Richards’ request for a mistrial. Appellate counsel testified that his decision was informed by trial counsel's framing of the issue as a Sixth Amendment challenge and by facts that he felt supported such a claim. Appellate counsel further explained that Richards’ Sixth Amendment claim was subject to de novo review, while any claim challenging the trial court's refusal to have D.F. evaluated for competency was subject to review for an abuse of discretion, a standard he believed was harder to meet. Appellate counsel also testified he did not believe the competency issue had “a reasonable chance of success” that warranted raising it on appeal. Appellate counsel explained that he had reviewed Nevada statutes and cases in preparing the direct appeal and determined that there was “no issue that would allow challenging competency under NRS 50.700 or 50.015 on appeal.” Additionally, appellate counsel testified that the fact the trial court never ruled on trial counsel's request for a competency evaluation factored into his decision to not pursue the issue on appeal. Appellate counsel's decision to forgo this claim was thus a tactical one, see Doleman, 112 Nev. at 848, 921 P.2d at 280-81, and counsel is not ineffective for choosing not to raise every possible issue on appeal. Thus, Richards failed to demonstrate appellate counsel's performance was deficient.

Richards also failed to demonstrate this issue had a reasonable probability of success on appeal. Preliminarily, Richards’ argument conflates competency evaluations with the examinations discussed at NRS 50.700. NRS 50.700(1) precludes a district court from ordering the victim of a sexual offense to take or submit to a psychological or psychiatric examination. NRS 50.700(2) provides that the testimony of a licensed psychologist, psychiatrist or clinical social worker who performed a psychological or psychiatric examination on the victim may be excluded if there is a “prima facie showing of a compelling need for an additional psychological or psychiatric examination of the victim.” On its face, NRS 50.700 does not provide a mechanism for a court to order a competency evaluation of a victim of a sexual offense. Further, the record shows that D.F. never participated in a psychological or psychiatric examination in connection with this case; hence, there was no way for Richards to make a “prima facie showing of a compelling need” for additional testing, especially given that such testing would not have assessed D.F.’s competency as a witness.⁴ NRS 50.700(2)(a).

Nevada law starts with the presumption that “[e]very person is competent to be a witness,” subject to limited exceptions. NRS 50.015. A person is competent to testify to matters over which they have personal knowledge. See NRS 50.025(1)(a). “When the competency of any witness has been questioned, it is within the discretion of the trial court to consider factors relative to qualification and to determine if such person is competent to testify.” Fox v. State, 87 Nev. 567, 569, 491 P.2d 35, 36 (1971) (quotation marks omitted). The appellate courts review a district court's competency determination for an abuse of discretion and consider both the voir dire examination and the witness's subsequent testimony, “which may support a finding of competence if clear, relevant and coherent.” Lanoue v. State, 99 Nev. 305, 307, 661 P.2d 874, 874 (1983) (quotation marks and internal punctuation omitted). “An abuse of discretion occurs if the district court's decision is arbitrary or capricious or if it exceeds the bounds of law or reason.” Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005) (quotation marks omitted).

As discussed above, the trial court ordered briefing by the parties regarding D.F.’s testimony and conducted a mid-trial hearing on those briefs. After hearing extensive arguments from the parties, the trial court agreed with the State's position that, while D.F. did start to answer “I don't remember” to questions posed by both parties after several hours of testimony, her apparent loss of memory did not render her incompetent to testify as a witness. Richards failed to demonstrate this determination was arbitrary, capricious, or exceeded the bounds of law or reason. Thus, Richards failed to demonstrate he was prejudiced by appellate counsel's decision not to pursue this claim on appeal, and we conclude the district court did not err by denying this claim. Cumulative Error

Finally, Richards asserted a claim of cumulative error, arguing that the district court should reverse his conviction because “serious errors permeated the trial.” Even assuming errors attributable to the ineffective assistance of counsel may be cumulated in a postconviction petition proceeding, see McConnell v. State, 125 Nev. 243, 259 & n.17, 212 P.3d 307, 318 & n.17 (2009) (noting the Nevada Supreme Court has never adopted a standard to evaluate such claims in postconviction proceedings), Richards failed to demonstrate any errors to cumulate. Therefore, we conclude the district court did not err by denying this claim. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   Miranda v. Arizona, 384 U.S. 436 (1966).

2.   On appeal, Richards alternatively argues that trial counsel was ineffective for failing to lodge additional objections to the scope of Dr. Haycock's testimony. Because Richards did not raise this claim below, we decline to consider it for the first time on appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (“A point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal.”); Wade v. State, 115 Nev. 290, 294-95, 986 P.2d 438, 441 (1999) (“It is the responsibility of counsel for the parties to create an adequate appellate record by assuring that appropriate objections and contested factual matters are resolved in the first instance in the district court.”).

3.   From the record on appeal, it appears trial counsel orally moved the trial court at a pretrial hearing to exclude Dr. Haycock as a witness, arguing that the State failed to notice him as an expert witness. The district court denied the motion on the grounds that the State had indicated Dr. Haycock would not be asked questions requiring expert opinion testimony.

4.   To the extent Richards asserts that the testing previously administered by Dr. Haycock qualified as prior psychological or psychiatric examination such that the trial court could have ordered an additional examination pursuant to NRS 50.700, we decline to adopt such a reading of the statute, as D.F. was not a “victim of or a witness to [a] sexual offense” at the time of the testing. NRS 50.700(1).