                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 JOHN BATTISTA GIORDANO,                                 No. 67521
                 Appellant,
                 vs.
                 THE STATE OF NEVADA,
                 Respondent.
                                                                                FILED
                                                                                 JAN 1.4 2016


                                         ORDER OF AFFIRMANCE
                             This is an appeal from an order of the district court denying a
                 postconviction petition for a writ of habeas corpus. Eighth Judicial
                 District Court, Clark County; J. Charles Thompson, Senior Judge.
                             On appeal from the denial of his October 7, 2013, petition,
                 appellant John Giordano argues that the district court erred in denying
                 his claims of ineffective assistance of trial counsel. To prove ineffective
                 assistance of counsel, a petitioner must demonstrate that counsel's
                 performance was deficient in that it fell below an objective standard of
                 reasonableness, and resulting prejudice such that there is a reasonable
                 probability, that, but for counsel's errors, the outcome of the proceedings
                 would have been different. 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 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). We give
                 deference to the district court's factual findings if supported by substantial



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                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).
                              Giordano first argues that counsel was ineffective for not
                objecting to jury instruction no. 12 as an incorrect statement of law
                regarding possession of a stolen vehicle. Giordano has failed to
                demonstrate deficiency or prejudice. Giordano was not convicted of
                possession of a stolen vehicle, so the claim is moot. Insofar as Giordano
                intends his argument to apply to the conviction for grand larceny auto, he
                has failed to provide this court with a copy of the jury instructions, which
                precludes our review of his claims. 1 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."). However, evenS assuming that the jury was
                instructed as Giordano claims, it was not an incorrect statement of law as
                it limited the jury to considering only relevant evidence.      See Dugan v.
                Gotsopoulos, 117 Nev. 285, 288, 22 P.3d 205, 207 (2001).
                              Giordano next argues that counsel was ineffective for failing to
                object to the admission of evidence regarding the value of the stolen
                motorhome. Giordano has failed to demonstrate deficiency or prejudice. A
                petitioner is not entitled to relief on claims that are bare or belied by the
                record.   See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225

                      1 Forthe same reason, we do not consider Giordano's suggestion that
                counsel's failure to object to jury instruction no. 6 was an example of
                ineffective assistance of counsel. And while Giordano appears to have at
                least quoted jury instruction no. 12 in its entirety in his Fast Track
                Statement, he has not quoted any portion of jury instruction no. 6.




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                 (1984). Counsel did object to the admission of the Kelly Blue Book pages
                 and NADA documentation, including the detective's and victim's
                 testimony regarding the latter. Thus the facts underlying his claim are
                 belied by the record. Further, Giordano's claim is bare insofar as he does
                 not identify any other part of the victim's testimony that counsel should
                 have objected to, especially given that "[a] party to a lawsuit may testify
                 as to the value of her personal or real property."    Dugan, 117 Nev. at 288,
                 22 P.3d at 207.
                             Giordano next argues that counsel was ineffective for failing to
                 object to the admission of certain evidence on the ground of prosecutorial
                 misconduct. Giordano has failed to demonstrate deficiency or prejudice.
                 On the fourth day of trial, the State disclosed that it had "yesterday"
                 requested from the Department of Motor Vehicles information regarding
                 the license plate that was found on the recovered motorhome, and that it
                 had only requested the information because of the tenor of questioning
                 during trial. Counsel objected to the admission of the records on various
                 grounds, but not for prosecutorial misconduct. "Our evaluation begins
                 with the 'strong presumption that counsel's conduct falls within the wide
                 range of reasonable professional assistance."        Means, 120 Nev. at 1011,
                 103 P.3d at 32 (quoting Strickland, 466 U.S. at 689). Giordano makes only
                 a bare statement that the State engaged in misconduct, and despite
                 bearing the burden of proof, he did not examine trial counsel regarding
                 this issue at the evidentiary hearing. He has thus failed to demonstrate
                 that counsel was ineffective.
                             Giordano next argues that counsel was ineffective for failing to
                 investigate the background of or request physical or psychological



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                examinations of the victim. Giordano has failed to demonstrate deficiency
                or prejudice. A petitioner claiming counsel did not conduct an adequate
                investigation bears the burden of showing what a more thorough
                investigation would have yielded or how it would have affected the
                outcome of the trial. Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538
                (2004). Giordano's bare claim fails to state what additional background
                investigation counsel should have undertaken or to provide any authority
                suggesting that counsel could have successfully sought an examination of
                the victim. Further, Giordano does not state what the results of such
                investigations would have been. 2
                            Giordano next argues that counsel was ineffective for failing to
                investigate Giordano's history of mental illness with an eye toward
                developing a defense of insanity or that he lacked specific intent.
                Giordano has failed to demonstrate deficiency or prejudice. Counsel
                testified that he did not question Giordano's mental state at the time of
                the crimes because he was able to recall events and his recollection was
                not inconsistent with the physical evidence. Giordano has not



                      2 Giordano  complains that the district court failed to address his
                motion to produce victim impeachment information, and he requests
                remand for the district court to address the motion and to make
                evidentiary findings. Because this claim was not raised until his reply, it
                is not properly before this court. See NRAP 3C(e)(3) ("The reply must be
                limited to answering matters set forth in the Fast Track Response.").
                Further, the "motion" below was not properly before the district court as it
                was made within Giordano's reply to the State's response to his petition.
                See EDCR 2.20, 3.20. Accordingly, we do not reach the merits of this
                claim




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                demonstrated that this was objectively unreasonable. Further, Giordano
                has presented no evidence that he was insane or unable to form the
                necessary specific intent at the time of the crimes. 3
                            Giordano next argues that counsel was ineffective for failing to
                investigate Giordano's criminal history, which was used to adjudicate him
                an habitual criminal. Giordano has failed to demonstrate deficiency or
                prejudice. Counsel testified that he discussed Giordano's prior convictions
                with him and that Giordano did not indicate there were any inaccuracies.
                Further, Giordano has failed to allege or demonstrate that any of the
                convictions were inappropriately used to adjudicate him an habitual
                criminal.
                            Giordano next argues that counsel was ineffective for failing to
                challenge law enforcement's inventory search of the motorhome and to file
                a motion to sever. Giordano's bare claims have failed to demonstrate
                deficiency or prejudice. Giordano provides no basis on which counsel could
                have challenged either the search or the joinder of crimes. He also fails to
                state how, the suppression of any evidence resulting from the search would
                have affected the outcome of trial or presented any argument suggesting
                that a motion to sever would have been successful.
                             Finally, Giordano argues that the cumulative errors of counsel
                warrant reversal of his convictions. Even assuming that multiple



                      3 Giordano   complains that the district court failed to address his
                motion for a psychiatric evaluation at the State's expense. For the same
                reasons as with his victim-impeachment motion, we do not reach the
                merits of this claim.




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                deficiencies in counsel's performance may be cumulated to establish
                prejudice, see McConnell v. State, 125 Nev. 243, 259, 212 P.3d 307, 318
                (2009), Giordano has failed to demonstrate any deficiencies to cumulate.
                            For the foregoing reasons, we
                            ORDER the judgment of the district court AFFIRMED.


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                                                                                           J.
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                                                                                           J.
                                                            Pickering




                cc: Chief Judge, The Eighth Judicial District Court
                     Hon. J. Charles Thompson, Senior Judge
                     Bailus Cook & Kelesis
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




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