                  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 697, 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).
                              Appellant claimed that counsel was ineffective for failing to
                  file a pretrial motion to suppress the victim's one-on-one identification of
                  appellant as unnecessarily suggestive. Appellant failed to demonstrate
                  deficiency or prejudice. Appellant has not disputed that he was the person
                  with whom the victim initially spoke and later confronted about the theft
                  of a ticket. Counsel was not objectively unreasonable in not moving to
                  suppress the identification where identity was not an issue in the case.
                  Further, even if the one-on-one identification were unnecessarily
                  suggestive, appellant failed to demonstrate that the motion would have
                  been successful, because the identification was nevertheless reliable where
                  the victim pointed to appellant almost immediately upon exiting the
                  restroom where the theft occurred, the victim was "100%" certain in the
                  subsequent one-on-one identification, and there was only approximately
                  one hour between the theft and the one-on-one identification. See Gehrke
                  v. State, 96 Nev. 581, 583-84, 613 P.2d 1028, 1029-30 (1980) (setting forth
                  the test for admitting pretrial identifications at trial). Moreover, even had
                  the victim's identification of appellant been suppressed, appellant
                  demonstrated no reasonable probability of a different outcome where
                  appellant's brother testified to observing him take the victim's property.




SUPREME COURT
        OF
     NEVADA
                                                        2
(0) 1947A    ce
                   We therefore conclude that the district court did not err in denying the
                   petition. Accordingly, we
                               ORDER the judgment of the district court AFFIRMED. 2




                                                                                        J.



                                                             CkU   esrsr            ,   J.
                                                       Parra



                                                       Saitta


                   cc: Hon. Kathleen E. Delaney, District Judge
                        Larry Dwayne Smith
                        Attorney General/Carson City
                        Clark County District Attorney
                        Eighth District Court Clerk




                         2The district court did not abuse its discretion in declining to appoint
                   post-conviction counsel. See NRS 34.750.




SUPREME COURT
         OF
      NEVADA
                                                         3
(0) 1.947A    ea
