                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                   CHARLES SHEA EUBANKS,                                No. 68628
                   Appellant,
                   vs.
                   RENEE BAKER, WARDEN, ELY STATE
                   PRISON,
                   Respondent.
                                                                             FILED
                                                                             MAY 0 9 2016
                                                                            TRACIE K. LrNIDEMAN
                                                                         CLERK OF SUPREME COURT
                                                                        By   -s
                                                                              DEPUTY CLERK




                                            ORDER OF AFFIRMANCE
                                 This is a pro se appeal from an order of the district court
                   denying appellant Charles Shea Eubanks' postconviction petition for a
                   writ of habeas corpus. Fifth Judicial District Court, Nye County; Robert
                   W. Lane, Judge.
                                 Eubanks claimed that trial and appellate counsel were
                   ineffective, accordingly, he bore the burden of demonstrating that (1)
                   counsel's performance fell below an objective standard of reasonableness
                   and (2) prejudice.   Strickland v. Washington, 466 U.S. 668, 687-88, 694
                   (1984); Kirksey v. State, 112 Nev. 980, 987-88, 998, 923 P.2d 1102, 1107,
                   1114 (1996). To prove ineffective assistance of appellate counsel, a
                   petitioner must demonstrate that counsel's performance was deficient and
                   resulting prejudice such that the omitted issue would have had a
                   reasonable probability of success on appeal. Kirksey, 112 Nev. at 998, 923
                   P.2d at 1114. A court need not consider both prongs of the Strickland test
                   if a defendant makes an insufficient showing on either prong.    Strickland,



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                466 U.S. at 697. An evidentiary hearing is warranted only if a petitioner
                raises claims supported by specific factual allegations that are not belied
                by the record and, if true, would entitle him to relief.   See Hargrove v.
                State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984).
                            First, Eubanks claimed that trial counsel was ineffective for
                failing to investigate his competency before trial. He asserts that he was
                not competent to assist counsel in his defense, make an informed decision
                regarding whether to accept a guilty plea or proceed to trial, or form the
                specific intent for first-degree murder. Eubanks failed to demonstrate
                that trial counsels' performance was deficient or that he was prejudiced.
                Eubanks' history of drug abuse, possible PTSD, and mental health history,
                without more, did not indicate that he was unable to consult with his
                attorney or understand the proceedings against him      See Melchor-Gloria
                v. State, 99 Nev. 174, 179-80, 660 P.2d 109, 113 (1983) (citing Dusky v.
                United States, 362 U.S. 402 (1960)). Notably, the record reveals multiple
                interactions between Eubanks and the district court that did not cast
                doubt on his competency. Eubanks even acknowledged in his petition that
                he communicated with counsel. As Eubanks failed to demonstrate
                sufficient circumstances raising doubt as to his competency, he did not
                demonstrate that counsel's alleged failure to investigate his competency
                was unreasonable. Therefore, the district court did not err in denying this
                claim.
                            Second, Eubanks claimed that trial counsel was ineffective for
                failing to reinstate the preliminary hearing after the State altered the
                terms of the plea agreement. Eubanks failed to demonstrate that
                counsel's performance in this respect was unreasonable where Eubanks



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                   waived his right to a preliminary hearing after he was personally advised
                   by the court that his waiver was unconditional and could not be
                   withdrawn if the plea negotiations, which had not been completed, failed
                   to result in an acceptable bargain. Therefore, the district court did not err
                   in denying this claim.
                               Third, Eubanks claimed that trial counsel failed to explain the
                   elements of first-degree murder and aiding and abetting liability. He
                   contended that had he known that he could be subject to liability for
                   aiding and abetting, he would have accepted the guilty plea offer.
                   Eubanks failed to demonstrate that counsel's performance was deficient or
                   that he was prejudiced. Witnesses testified that Eubanks walked toward
                   the trailer where the crimes occurred carrying knives, told his confederate,
                   Troy Jackson, that they had been given a "green light" to kill Michael
                   Frasher, and then started to stab Frasher while Jackson attacked
                   Antoinette Bell, who was also present. After his arrest, Eubanks admitted
                   to multiple people that he killed Frasher. As significant evidence pointed
                   to Eubanks' involvement as a principal, he failed to demonstrate that any
                   discussion concerning abetting liability would have affected his decision to
                   proceed to trial. Therefore, the district court erred in denying this claim.
                               Fourth, Eubanks claimed that trial counsel was ineffective for
                   failing to request a change of venue or have the jury selection transcribed.
                   He asserted that the crime occurred in a small town where people were
                   familiar with each other and many of the potential jurors attended the
                   same church as the district attorney. However, Eubanks did not allege
                   that these relationships rendered any of the jurors or potential jurors
                   unfairly biased against him. See Sommer v. State, 112 Nev. 1328, 1336, 930



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                P.2d 707, 712-13 (1996) (recognizing that a defendant seeking a change of
                venue must "demonstrate actual bias on the part of the jury empaneled"),
                modified on rehearing on other grounds by 114 Nev. 321, 955 P.2d 673
                (1998). Further, Eubanks failed to identify an empanelled juror who was
                biased against him and therefore did not demonstrate that the failure to
                transcribe the jury selection hindered appellate counsel's ability to raise
                claims on appeal. See Daniel v. State, 119 Nev. 498, 508, 78 P.3d 890, 897
                (2003) (recognizing that the failure to record part of the proceedings is not
                grounds for reversal in and of itself but an appellant must demonstrate
                the missing record was so significant that the appellate court could not
                meaningfully review the appeal). Therefore, the district court did not err
                in denying this claim.
                            Fifth, Eubanks claimed that trial counsel was ineffective for
                failing to call character witnesses during the penalty phase of trial who
                would have testified that he could not have committed the crime based on
                the type of person he is. As the question of Eubanks guilt was not
                relevant to the penalty phase of trial, see Gallego v. State, 117 Nev. 348,
                368, 23 P.3d 227, 241 (2001), abrogated on other grounds by Nunnery v.
                State, 127 Nev. 749, 263 P.3d 235 (2011), he failed to demonstrate that
                counsel's decision to not introduce this testimony was unreasonable, see
                Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996) (noting
                that whom to call as a witness "is a tactical decision that is 'virtually
                unchallengeable absent extraordinary circumstances" (quoting Howard v.
                State, 106 Nev. 713, 722, 800 P.2d 175, 180 (1990), abrogated on other




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                    grounds by Harte ix State, 116 Nev. 1054, 1072, 13 P.3d 420, 432 (2000))).
                    Therefore, the district court did not err in denying this claim.'
                                Sixth, Eubanks claimed that trial counsel was ineffective for
                    failing to call an expert on methamphetamine abuse, as the witnesses
                    against him were methamphetamine abusers. Further, the expert could
                    have testified that as an abuser himself, Eubanks could not have
                    possessed malice aforethought prior to the murder. We disagree. Given
                    that multiple witnesses provided similar accounts that Eubanks stabbed
                    Frasher to death and admitted to doing so to enforce a drug debt, he failed
                    to demonstrate that trial counsel acted unreasonably in not seeking out
                    such an expert, see id., or that he was prejudiced by the failure to
                    introduce this testimony. Therefore, the district court did not err in
                    denying this claim.
                                Seventh, Eubanks claimed that trial and appellate counsel
                    were ineffective for failing to object to the court illegally sentencing him.
                    He asserted that the district court sentenced him to a term greater than
                    the maximum sentence for attempted robbery with the use of a deadly
                    weapon. According to the second amended judgment of conviction, the
                    district court sentenced Eubanks to two consecutive terms of four to ten
                    years in prison for attempted robbery with the use of a deadly weapon. As
                    these sentences were within the proscribed statutory limits,        see NRS



                            'To the extent that Eubanks claimed that trial counsel was
                    ineffective for not introducing this testimony during the guilt phase of
                    trial, he failed to demonstrate prejudice given the overwhelming evidence
                    of guilt.




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                193.330(1)(a)(2); NRS 193.165; NRS 200.380, counsel were not deficient in
                failing to challenge the sentences. Therefore, the district court did not err
                in denying this claim.
                                  Having considered Eubanks' contentions and concluding that
                no relief is warranted, 2 we
                                  ORDER the judgment of the district court AFFIRMED. 3



                                                /    4a   thItol   teli
                                             Hardesty


                                                                                         J.
                S aitta.                                       Pickering


                cc: Hon. Robert W. Lane, District Judge
                     Charles Shea Eubanks
                     Attorney General/Carson City
                     Nye County District Attorney
                     Nye County Clerk




                       Eubanks also claimed that the cumulative effect of counsel's errors
                           2
                entitles him to relief. As we have found no error, there is nothing to
                cumulate. Therefore, no relief is warranted on this claim.

                           3 We
                           have reviewed all documents that appellant has submitted to
                the clerk of this court in this matter, and we conclude that no relief based
                upon those submissions is warranted. To the extent that appellant has
                attempted to present claims or facts in those submissions which were not
                previously presented in the proceedings below, we have declined to
                consider them in the first instance.




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