WILLIAM FERGUSON v. NEVADA DEPARTMENT OF CORRECTIONS AND THE STATE OF NEVADA (2026)

ORDER OF AFFIRMANCE

William Ferguson appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on March 23, 2023, and a supplement filed on November 7, 2024. Eighth Judicial District Court, Clark County; Hon. Monica Trujillo, Judge.

On several separate occasions, Ferguson entered casinos and stole, or attempted to steal, gaming chips. Ferguson testified in his own defense at trial that he was not in the casinos and did not commit the crimes. Ferguson was ultimately convicted of seven counts of burglary, two counts of petit larceny, and one count each of grand larceny and attempted grand larceny. The trial court adjudicated Ferguson a habitual criminal and imposed an aggregate sentence of 8 to 20 years in prison. This court affirmed the judgment of conviction on direct appeal. See Ferguson v. State, No. 83844-COA, 2022 WL 17665072 (Nev. Ct. App. Dec. 13, 2022) (Order of Affirmance).

Ferguson filed a timely pro se habeas petition, which was later supplemented by appointed postconviction counsel. Ferguson alleged several claims of ineffective assistance of trial and appellate counsel in his petition and supplement. The district court conducted an evidentiary hearing, at which Ferguson and his appellate counsel testified. Ferguson did not call trial counsel to testify. The district court subsequently denied the petition.

Ferguson 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, Ferguson claimed that trial counsel was ineffective for failing to investigate his innocence. Ferguson claimed that counsel should have investigated the statements and affidavits prepared by gaming control agents in support of an arrest warrant, and the circumstances and documents involving a jailhouse snitch who Ferguson alleged filed fraudulent documents in Ferguson's name. At an evidentiary hearing on his petition, Ferguson did not call trial counsel to testify regarding any lack of investigation. Besides testifying generally at the evidentiary hearing that trial counsel failed to investigate and specifically that counsel failed to investigate “the people or the California alibi,” Ferguson offered no other evidence related to the gaming agents, the jailhouse snitch, or his alibi. And the district court found Ferguson failed to demonstrate he was prejudiced by any lack of investigation because he failed to show what the investigations would have uncovered. See Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004) (stating a petitioner claiming counsel did not conduct an adequate investigation must specify what a more thorough investigation would have uncovered). This finding is supported by the record.

Ferguson argues on appeal that the district court erred by denying this claim without considering the testimony of his trial counsel, who Ferguson argues should have testified at the evidentiary hearing to explain his strategy or decision-making processes. Ferguson acknowledges on appeal that he did not call trial counsel to testify, and he bore the burden of proving the ineffective assistance of counsel. See Means, 120 Nev. at 1011-13, 103 P.3d at 32-33 (providing that the petitioner has the burden of overcoming the strong presumption that the challenged action might have been the product of sound trial strategy under the circumstances); see also Burt v. Titlow, 571 U.S. 12, 23 (2013) (“It should go without saying that the absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.” (citation modified)). Therefore, Ferguson failed to demonstrate counsel's performance was deficient or a reasonable probability of a different outcome at trial absent counsel's alleged inaction. Accordingly, we conclude the district court did not err by denying this claim.

Second, Ferguson claimed that trial counsel was ineffective for failing to object to testimony during trial. An appellant alleging the district court erroneously denied a claim of ineffective assistance of counsel must specifically articulate the alleged deficiency and resulting prejudice for each claim in their appellate briefing. See Chappell v. State, 137 Nev. 780, 787-88, 501 P.3d 935, 949-50 (2021) (noting “a petitioner's appellate briefs must address ineffective-assistance claims with specificity, not just in a pro forma, perfunctory way or with a conclusory catchall statement that counsel provided ineffective assistance” (citation modified)). In his briefing on appeal, Ferguson does not identify the testimony trial counsel should have objected to, the grounds on which counsel should have objected, or how he was prejudiced by counsel's inaction. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (“It is appellant's responsibility to present relevant authority and cogent argument; issues not so presented need not be addressed by this court.”). Thus, we decline to consider this argument on appeal. To the extent Ferguson contends the district court erred by denying this claim without first considering the testimony of trial counsel, we conclude that he is not entitled to relief for the reasons outlined above. See Means, 120 Nev. at 1011-13, 103 P.3d at 32-33; Burt, 571 U.S. at 23. Accordingly, we conclude the district court did not err by denying this claim.

Ferguson also argues 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). 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). The decision as to what claims to raise on appeal resides within counsel's professional judgment. Jones, 463 U.S. at 751-54. 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, Ferguson claimed that appellate counsel was ineffective for failing to challenge the district court's denial of Ferguson's motions to dismiss trial counsel and appoint alternative counsel. Ferguson claimed there existed a conflict between him and counsel that resulted in a complete breakdown of the attorney-client relationship. Ferguson alleged that he filed multiple motions to dismiss trial counsel and that his “disastrous” trial testimony demonstrated the extent of the conflict.

“Absent a showing of adequate cause, a defendant is not entitled to reject his court-appointed counsel and request substitution of other counsel at public expense.” Young v. State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004). In reviewing a trial court's denial of a request for substitute counsel, the appellate court considers the extent of any conflict, the adequacy of the trial court's inquiry, and the timeliness of the defendant's motion. Id. at 968-69, 102 P.3d at 576.

The district court found that the trial court conducted hearings on Ferguson's motions to dismiss trial counsel, considered the Young factors, and consistently found no complete breakdown in the attorney-client relationship warranting counsel's dismissal. After considering Ferguson's motions and the related hearings, the district court found that, while Ferguson expressed dissatisfaction with various strategic and procedural decisions made by trial counsel, such concerns did not warrant substitution and that Ferguson's Sixth Amendment rights were not violated by trial counsel remaining on Ferguson's case. Because Ferguson did not provide this court with the transcripts of the trial court hearings related to his motions to dismiss trial counsel, we necessarily presume that the transcripts support the district court's decision. See Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007) (noting that it is appellant's burden to ensure that a proper appellate record is prepared and that, if the appellant fails to do so, “we necessarily presume that the missing [documents] support[ ] the district court's decision”); see also Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) (“The burden to make a proper appellate record rests on appellant.”); NRAP 30(b)(3) (requiring appellant to include in the appendix any “portions of the record necessary to determination of issues raised in appellant's appeal”).

In addition, appellate counsel testified during the evidentiary hearing that he did not raise Ferguson's relationship with trial counsel as an issue on direct appeal because the record did not signal that such an issue existed. Appellate counsel explained that he did not believe that trial counsel's performance impacted Ferguson's relationship with him. He further explained that he did not think that Ferguson's trial testimony was the product of a strained attorney-client relationship and opined that Ferguson probably would have given the same testimony regardless of who his attorney was. The district court found that appellate counsel made a strategic decision to exclude this weaker argument on appeal. This finding is supported by the record, and Ferguson failed to allege extraordinary circumstances sufficient to challenge counsel's strategic decision. See Lara v. State, 120 Nev. 177, 180, 87 P.3d 528, 530 (2004) (stating that strategic decisions of counsel are “virtually unchallengeable absent extraordinary circumstances” (quotation marks omitted)). For these reasons, Ferguson failed to demonstrate appellate counsel's performance was deficient or a reasonable probability of success had counsel raised this issue on appeal. Accordingly, we conclude the district court did not err by denying this claim.¹

Ferguson also claimed that appellate counsel was ineffective for failing to provide this court with the video surveillance trial exhibits for review, resulting in the denial of his direct appeal. On direct appeal, Ferguson argued the district court abused its discretion by admitting other act evidence in the form of statements he made to a former gaming control agent. Ferguson, No. 83844-COA, 2022 WL 17665072, at *1. This court concluded that the district court abused its discretion in admitting that evidence but that the error was harmless based on the evidence of Ferguson's guilt contained in the appellate record and the fact that Ferguson failed to provide this court with the video surveillance exhibits for review despite challenging the quality of the surveillance video and the State's ability to prove his identity beyond a reasonable doubt at trial. Id. at *3.

During the evidentiary hearing on Ferguson's petition, appellate counsel testified that he knew he could transmit exhibits for appellate court review but did not consider transmitting the video surveillance exhibits until after he read this court's order affirming Ferguson's judgment of conviction. To the extent appellate counsel's performance was deficient for failing to transmit the video surveillance exhibits, we conclude Ferguson failed to demonstrate prejudice because this court relied on other evidence contained in the appellate record in conducting its harmless error analysis and because Ferguson again fails to provide this court with the video surveillance exhibits for review on appeal. See Cuzze, 123 Nev. at 603, 172 P.3d at 135; Greene, 96 Nev. at 558, 612 P.2d at 688; NRAP 30(b)(3); see also NRAP 30(d) (stating “[c]opies of relevant and necessary exhibits ․ must be included in the appendix as far as practicable” but if the exhibits are “incapable of being reproduced in the appendix, the parties may file a motion requesting the court to direct the district court clerk to transmit the original exhibits”). Therefore, Ferguson failed to demonstrate a reasonable probability of success on appeal, and we conclude the district court did not err by denying this claim.

For the foregoing reasons, we conclude the district court did not err by denying Ferguson's petition, and we

ORDER the judgment of the district court AFFIRMED.²

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   To the extent Ferguson argues that trial counsel was ineffective for failing to withdraw based on the same breakdown of the attorney-client relationship, for the reasons discussed above, we conclude Ferguson failed to demonstrate the district court erred by denying this claim.

2.   To the extent Ferguson raises additional claims in his pro se notice of appeal, such claims are improperly raised, and we do not consider them. See NRAP 3(c) (providing the contents of a notice of appeal).Insofar as Ferguson raises arguments that are not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be addressed.