                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, appellant argues that counsel was ineffective for
                conceding that appellant should be adjudicated a habitual criminal.
                Appellant has failed to demonstrate deficiency or prejudice. In support of
                his argument, appellant points to Jones v. State, in which this court held
                that trial counsel was ineffective for conceding in closing argument during
                the guilt phase of a jury trial that his client was guilty of a lesser-included
                offense where the concession directly contradicted his client's own
                testimony. 110 Nev. 730, 738, 877 P.2d 1052, 1057 (1994).           Jones was
                expressly limited to its facts, id. at 739, 877 P.2d at 1057, and is thus
                inapposite here where counsel conceded before the sentencing judge to
                habitual criminal treatment and did not contradict any testimony of
                appellant at trial. Further, the district court's finding that it was a
                reasonable strategic decision of counsel is supported by substantial
                evidence in the record. We therefore conclude that the district court did
                not err in denying this claim.
                            Second, appellant argues that counsel was ineffective for
                failing to object to appellant's adjudication as a habitual criminal on the
                grounds that the district court did not follow the proper procedures.
                Specifically, appellant argues that the evidence of his prior convictions
                was not formally offered and accepted into evidence, the district court did
                not state on the record that the prior convictions were valid and proper for
                enhancement purposes, he was not given an opportunity to admit or deny



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                their validity, and the district court did not first sentence him on the
                substantive crime charged and then invoke the recidivist statute to
                determine the penalty. Appellant has failed to demonstrate deficiency or
                prejudice. This court has never required a formal offering and acceptance
                of evidence of prior convictions, see Hymon v. State, 121 Nev. 200, 215-16,
                111 P.3d 1092, 1103 (2005), nor has it required the articulation of
                "talismanic phrases," cf. Avery v. State, 122 Nev. 278, 284, 129 P.3d 664,
                668 (2006). Further, trial counsel testified at the evidentiary hearing that
                he had reviewed the prior convictions with appellant and that appellant
                did not indicate that any were invalid. Appellant's testimony contradicted
                this, but the district court found him to be largely incredible. Also, the
                judgment of conviction unequivocally demonstrated that appellant was
                convicted of the primary offenses, was adjudicated a habitual criminal,
                and was sentenced accordingly. Finally, appellant failed to demonstrate
                prejudice where, even were the procedures improper, a successful
                objection would simply have resulted in the use of the proper procedure
                but not a reasonable probability of a different outcome. We therefore
                conclude that the district court did not err in denying this claim.
                            Third, appellant argues that counsel was ineffective for failing
                to object to appellant's adjudication as a habitual criminal on the ground
                that the State failed to prove beyond a reasonable doubt the existence of
                each prior conviction and that each was a felony. Appellant has failed to
                demonstrate deficiency or prejudice. Where the state in which the crime
                was committed considers the crime to be a felony, it is a felony for
                purposes of habitual criminal adjudication regardless of whether it would



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                be a felony in Nevada. See NRS 207.010(1)(b). Moreover, appellant has
                neither alleged nor demonstrated by a preponderance of the evidence that
                any of his prior felony convictions were invalid and, accordingly, has failed
                to demonstrate a reasonable probability of a different outcome had counsel
                objected. We therefore conclude that the district court did not err in
                denying this claim.
                            Fourth, appellant argues that counsel was ineffective when he
                persuaded appellant to waive his preliminary hearing because, had he not
                done so, counsel could have learned who knew of the victim's safe in order
                to explore their motives and opportunities to commit the crime and could
                have questioned the victim why, on the day of the crime, her written police
                statement listed several possible suspects but did not include appellant.
                Appellant has failed to demonstrate deficiency or prejudice. Substantial
                evidence in the record supports the district court's finding that it was a
                reasonable strategic decision of counsel and that counsel was in fact aware
                of and had investigated many of the leads and alternative suspects
                appellant suggests he should have. Further, although appellant failed to
                provide this court with the victim's written police statement, see Greene v.
                State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The burden to make a
                proper appellate record rests on appellant."), the record reflects that at the
                time she reported the theft, the victim told detectives about appellant and
                gave them the paper on which he had written his name and number.
                Moreover, appellant presented no evidence at his evidentiary hearing of
                what additional leads or information would have developed from a
                preliminary hearing, and accordingly, he failed to demonstrate a



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                reasonable probability of a different outcome.      See Molina v. State, 120
                Nev. 185, 192, 87 P.3d 533, 538 (2004). We therefore conclude that the
                district court did not err in denying this claim.
                            Fifth, appellant argues that counsel was ineffective for failing
                to conduct adequate pretrial investigation. Appellant has failed to
                demonstrate deficiency or prejudice. Appellant did not demonstrate by a
                preponderance of the evidence that law enforcement stopped their
                investigation as soon as they identified appellant's prints and thus did not
                demonstrate that counsel was objectively unreasonable in not
                investigating why they did. Also, the record demonstrates that counsel
                made reasonable strategic decisions not to call J. Hightower as a witness
                where he would not have been credible nor testified in a manner that
                would have helped appellant and not to present appellant's cell phone
                records that, at best, would have had no effect on the case. Moreover,
                appellant failed to present any evidence at the evidentiary hearing of what
                a more thorough investigation would have yielded or how it would have
                affected the outcome of the trial, id., nor did he demonstrate a reasonable
                probability of a different outcome where none of the hoped-for evidence
                would have explained his fingerprints on the inside of the locked closet
                where the stolen safe was kept. We therefore conclude that the district
                court did not err in denying this claim.
                            Sixth, appellant argues that counsel was ineffective for failing
                to challenge the State's fingerprint evidence. Appellant has failed to
                demonstrate deficiency or prejudice. Counsel retained a fingerprint expert
                to review the State's evidence, and the defense expert concurred with the


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                    State's expert that appellant's fingerprints were recovered from both the
                    inside and outside of the locked closet. Further, the district court's finding
                    that counsel made a strategic decision to offer an alternative explanation
                    for the presence of the prints instead of challenging their accuracy was
                    supported by substantial evidence in the record. Moreover, appellant's
                    references to a vacated federal case from Pennsylvania and to an article
                    questioning in general the rigor of the science underlying fingerprint
                    analysis failed to demonstrate by a preponderance of the evidence that
                    there was any admissible evidence that counsel could have used to
                    impeach the accuracy of the fingerprint identification, see, e.g., Sheriff v.
                    Harrington, 108 Nev. 869, 871, 840 P.2d 588, 589 (1992) (holding that the
                    ruling of a court is an opinion, not evidence), and, accordingly, failed to
                    demonstrate a reasonable probability of a different outcome had counsel
                    challenged the evidence. See Molina, 120 Nev. at 192, 87 P.3d at 538. We
                    therefore conclude that the district court did not err in denying this claim.
                                Seventh, appellant argues that counsel was ineffective for
                    failing to argue at sentencing that appellant's criminal history was
                    primarily of non-violent, theft-related crimes, that he was employable and
                    had family that he may never see again if adjudicated a large habitual
                    criminal, and that he had health issues that would render his sentence the
                    equivalent of life without the possibility of parole. Appellant has failed to
                    demonstrate deficiency or prejudice. The record demonstrates that the
                    sentencing court was well aware of the nature of appellant's criminal past
                    and the presentence investigation report indicated that appellant was
                    unemployed at the time of the crime and suffered from diabetes and high



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                 blood pressure. Moreover, in light of his extensive criminal history
                 spanning decades and the sentencing court's statement that it would have
                 considered an even stronger sentence than what the State advocated for
                 and what was imposed, appellant has failed to demonstrate a reasonable
                 probability of a more favorable sentence had counsel highlighted this
                 mitigating information. We therefore conclude that the district court did
                 not err in denying this claim.
                             Eighth, appellant argues that counsel was ineffective for
                 failing to object when the State commented on his silence which shifted
                 the burden of proof in closing argument because, had counsel done so, this
                 court would have analyzed those assignments of error under a more
                 favorable standard of review, resulting in a different outcome on direct
                 appeal. Appellant has failed to demonstrate deficiency or prejudice. On
                 direct appeal, this court held that the State's remarks were not a comment
                 on appellant's silence, Hammons v. State, Docket No. 55801 (Order of
                 Affirmance, September 14, 2011) and that ruling is the law of the case,
                 Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). Appellant
                 thus failed to demonstrate that counsel was objectively unreasonable in
                 not objecting to the argument and that there was a reasonable probability
                 of a different outcome had counsel objected. We therefore conclude that
                 the district court did not err in denying this claim.
                             Appellant next argues that the district court erred in denying
                 his claims of ineffective assistance of appellate counsel. To prove
                 ineffective assistance of appellate counsel, a petitioner must demonstrate
                 that counsel's performance was deficient in that it fell below an objective



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                standard of reasonableness, and resulting prejudice such that the omitted
                issue would have a reasonable probability of success on appeal. Kirksey v.
                State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996). Both components of
                the inquiry must be shown. Strickland v. Washington, 466 U.S. 668, 697
                (1984).
                            First, appellant argues that counsel was ineffective for failing
                to challenge appellant's adjudication as a habitual criminal on the grounds
                that some prior convictions were not felonies and that the district court
                did not use the proper procedures to adjudicate appellant a habitual
                criminal. For the reasons discussed previously, appellant has failed to
                demonstrate that appellate counsel was deficient or that he was
                prejudiced. We therefore conclude that the district court did not err in
                denying these claims.
                            Second, appellant argues that counsel was ineffective for
                failing to provide this court with a transcript in support of appellant's
                direct-appeal claim that the district court erred in denying his request for
                new trial counsel. Appellant has failed to demonstrate deficiency or
                prejudice. Although this court noted on direct appeal that appellant failed
                to provide the transcript for the hearing at which the district court ruled
                on appellant's request, this court did affirm the district court's decision
                based on the minutes of the hearing. See Hammons v. State, Docket No.
                55801 (Order of Affirmance, September 14, 2011). Appellant has again
                failed to provide this court with transcripts of the relevant hearing.   See
                Greene, 96 Nev. at 558, 612 P.2d at 688. Thus appellant has failed to
                demonstrate by a preponderance of the evidence that the transcripts



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                differed substantially from the minutes on which this court relied and,
                accordingly, has failed to demonstrate that counsel was objectively
                unreasonable in not providing the transcript or that there was a
                reasonable probability of a different outcome on appeal had counsel
                provided them. We therefore conclude that the district court did not err in
                denying this claim.
                            Third, appellant argues that counsel was ineffective for failing
                to argue that trial counsel erred in conceding that appellant should be
                adjudicated a habitual criminal. Appellant has failed to demonstrate
                deficiency because ineffective-assistance claims are generally
                inappropriate to raise on direct appeal     See Pellegrini v. State, 117 Nev.
                860, 882-83, 34 P.3d 519, 534-35 (2001). We therefore conclude that the
                district court did not err in denying this claim.
                            Appellant next argues that he was denied the right to testify
                on his own behalf, that the length of his sentence constituted cruel and
                unusual punishment, and that the cumulative effect of trial error deprived
                him of due process. These claims could have been raised on direct appeal,
                Hammons v. State, Docket No. 55801 (Order of Affirmance, September 14,
                2011), and are therefore procedurally barred absent a demonstration of
                good cause and actual prejudice. NRS 34.810(1)(b). Appellant made no
                cogent argument of good cause or actual prejudice in his opening brief, 1


                      'In his reply brief, appellant claims that appellate counsel was
                ineffective for not raising the first two claims on direct appeal and appears
                to suggest that the cumulative errors of trial and appellate counsel
                warrant relief under Strickland. However, arguments on appeal may not
                                                                     continued on next page...


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                and we therefore conclude that the district court did not err in denying
                these claims.
                               Finally, appellant lists several claims that had been raised in
                his initial proper person petition for a writ of habeas corpus. They are
                bare assertions without any context, cogent argument, or support, and we
                decline to consider them.      See Maresca v. State, 103 Nev. 669, 673, 748
                P.2d 3, 6 (1987); NRAP 28(e)(2) (prohibiting incorporation by reference).
                               For the foregoing reasons, we conclude that appellant's claims
                lack merit, and we
                               ORDER the judgment of the district court AFFIRMED.




                                                            x   o,   stAt,           J.



                                                                                     J.



                                                                                     J.




                ...continued
                be raised for the first time in a reply brief, see NRAP 28(c); Browning v.
                State, 120 Nev. 347, 368 n.53, 91 P.3d 39, 54 n.53 (2004), and we therefore
                decline to consider these claims on their merits.




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                cc: Hon. James M. Bixler, District Judge
                     Brown Law Office
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




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