FULLER v. HUTCHINGS (2026)

ORDER OF AFFIRMANCE

First, Fuller argues the district court erred by denying his petition without considering a videotaped statement from a percipient witness taken by an investigator who interviewed the witness prior to Fuller's trial. The district court conducted an evidentiary hearing on Fuller's petition, where the videotaped statement was made a court exhibit. In its written order denying Fuller's petition, the district court found that the witness's preliminary hearing testimony, which was admitted at trial, was more beneficial to Fuller than the witness's videotaped statements and thus that Fuller failed to demonstrate a reasonable probability of a more favorable outcome at trial had the videotaped statement been admitted. Because the district court's order demonstrates that it considered the videotaped statement, we conclude Fuller is not entitled to relief based on this claim.

Second, Fuller argues the district court erred by denying his petition without considering his witness, Dr. Mel Pohl. In his petition, Fuller alleged trial counsel was ineffective for failing to call Dr. Pohl to testify at trial. Fuller claimed that Dr. Pohl would testify as to the reliability of three witnesses who testified on behalf of the State and who Fuller alleged were “admitted crack addicts that were high during the commission of the crime.” The district court denied Fuller an evidentiary hearing on this claim and ultimately denied the claim in its written order without considering evidence from Dr. Pohl.

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). Even assuming Dr. Pohl would have testified as to the reliability of witnesses who are under the influence of drugs or who are addicts, and even assuming such testimony would have been admissible, the record supports the district court's finding that such evidence would not have benefited Fuller because his closing argument relied on the testimony of a frequent drug user. Fuller does not challenge this finding on appeal. We therefore conclude Fuller failed to demonstrate deficiency or prejudice and he is not entitled to relief based on this claim.

Finally, Fuller argues he is entitled to relief because his postconviction counsel was ineffective for several reasons during the proceedings before the district court. In Nevada, there is no constitutional or statutory right to postconviction counsel in non-capital cases and, thus, no right to the effective assistance of postconviction counsel in such cases. See Brown v. McDaniel, 130 Nev. 565, 569, 331 P.3d 867, 870 (2014). For these reasons, we conclude Fuller is not entitled to relief based on his claims that postconviction counsel was ineffective during the proceedings on the instant petition. Accordingly, we

ORDER the judgment of the district court AFFIRMED.  ¹

FOOTNOTES

1.   To the extent Fuller raises arguments not specifically addressed in this order, we have considered the same and conclude that they do not present a basis for relief.