                     second penalty hearing, Chappell argues that the district court erred in
                     denying his claims of ineffective assistance of counsel.'
                     Ineffective assistance of counsel
                                  Chappell argues that the district court erred by denying
                     numerous claims of ineffective assistance of trial and appellate counsel
                     without conducting an evidentiary hearing. "A claim of ineffective
                     assistance of counsel presents a mixed question of law and fact, subject to
                     independent review," Evans v. State, 117 Nev. 609, 622, 28 P.3d 498, 508
                     (2001), but the district court's purely factual findings are entitled to


                            'Chappell also contends that the death penalty is unconstitutional
                     on three grounds: (1) the death penalty scheme fails to genuinely narrow
                     death eligibility, a contention we have rejected, see State v. Harte, 124
                     Nev. 969, 972-73, 194 P.3d 1263, 1265 (2008); (2) the death penalty is
                     cruel and unusual, an argument we have rejected, see Gallego v. State, 117
                     Nev. 348, 370, 23 P.3d 227, 242 (2001); and (3) the death penalty is
                     unconstitutional because executive clemency is unavailable, an argument
                     we have rejected, see Colwell v. State, 112 Nev. 807, 812, 919 P.2d 403,
                     406-07 (1996). He also contends that his conviction and sentence violate
                     the Universal Declaration of Human Rights and the International
                     Covenant on Civil and Political Rights. As he could have raised this claim
                     in the appeal taken from his judgment of conviction and he failed to assert
                     cause for the failure to do so or actual prejudice, the district court did not
                     err in denying this claim. See NRS 34.810(1)(b).

                            In addition, Chappell also contends that the district court erred in
                     denying his claim that his conviction violates due process based on an
                     erroneous guilt phase instruction on premeditation and deliberation and
                     that all prior counsel were ineffective for not challenging the instruction.
                     This claim is not properly raised because the proceeding at issue is his
                     second penalty hearing. See Chappell v. State (Chappell III), Docket No.
                     49478, at 27-28 (Order of Affirmance, October 20, 2009) (concerning
                     Chappell's appeal from his second penalty hearing where this court
                     concluded that Chappell's challenge to the premeditation murder
                     instruction was not properly before the court).


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                 deference.   Lara ix State, 120 Nev. 177, 179, 87 P.3d 528, 530 (2004).
                 Under the two-part test established by the United States Supreme Court
                 in Strickland v. Washington, a defendant must show (1) that counsel's
                 performance fell below an objective standard of reasonableness and (2)
                 prejudice. 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 fell below an objective standard of reasonableness,
                 and but for counsel's errors, the omitted issue would have had a
                 reasonable probability of success on appeal. Kirksey, 112 Nev. at 998, 923
                 P.2d at 1114. "The defendant carries the affirmative burden of
                 establishing prejudice."   Riley ix State, 110 Nev. 638, 646, 878 P.2d 272,
                 278 (1994). A court need not consider both prongs of the Strickland test if
                 a defendant makes an insufficient showing on either prong.       Strickland,
                 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, 502-03, 686 P.2d 222, 225 (1984).
                              Failure to present testimony
                              Chappell contends that the district court erred in denying his
                 claim that trial counsel were ineffective for failing to introduce testimony
                 from James Ford and Ivri Morrell. We disagree. Chappell could not
                 demonstrate that, had he been able to introduce the testimony of Ford and
                 Morrell, he would not have been sentenced to death, because the subject
                 matter of Ford and Morrell's proffered testimony was substantially
                 covered by other witnesses. In particular, Benjamin Dean, Fred Dean,
                 and Mira King discussed the early stages of Chappell and Panos'

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                relationship. King even provided broader testimony than could be
                provided by Ford and Morrell. Further, Ford's and Morrell's proffered
                testimony about the beginning of the relationship was not compelling
                considering the trajectory that the relationship eventually followed:
                Chappell physically abusing, threatening, and eventually murdering
                Panos. Therefore, the district court did not err in denying this claim
                without conducting an evidentiary hearing.
                            Failure to obtain an expert
                            Chappell argues that the district court erred in denying his
                claim that trial counsel were ineffective for failing to obtain an expert who
                could have testified that pre-ejaculatory fluid may contain sperm, which
                he claims would have reinforced his testimony instead of discrediting it.
                We conclude that although counsel were deficient, Chappell failed to
                demonstrate that he was prejudiced. The presence of sperm was not the
                only evidence that supported the sexual assault aggravating circumstance
                and undermined Chappell's testimony. Chappell had a history of abusing
                Panos, wrote hostile and threatening letters to her, and threatened her in
                court. Before his unexpected release from custody, Panos had planned to
                move somewhere Chappell could not find her. Consequently, she became
                terrified when she learned of Chappeifs release. While Chappell was at
                Panos' home, she attempted to engage in subterfuge to escape. In
                addition, her body bore injuries indicating that she had been beaten 15 to
                30 minutes before her murder. Given this evidence, Chappell did not
                demonstrate a reasonable probability that, but for counsel's failure to
                introduce expert testimony on this issue, the jury would not have found
                that the murder was committed during the course of a sexual assault.



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                     Therefore, the district court did not err in denying this claim without
                     conducting an evidentiary hearing.
                                 Positron emission tomography ("P.E.T.') scan
                                 Chappell argues that the district court erred in denying his
                     claim that trial counsel were ineffective for failing to obtain a P.E.T. scan
                     where there was some evidence that his mother was addicted to drugs and
                     alcohol. He contends that a scan could have revealed indicia of Fetal
                     Alcohol Spectrum Disorders, which could cause physical, learning, and
                     behavioral problems. We conclude that the district court did not err in
                     denying this claim without conducting an evidentiary hearing. At the
                     second penalty hearing, trial counsel introduced expert testimony that
                     Chappell had a low IQ as well as cognitive deficits, which had been
                     supported by psychological testing and Chappell's school records. As his
                     cognitive deficits had been extensively documented and the jury
                     nevertheless concluded that they were not sufficiently mitigating,
                     Chappell failed to demonstrate that counsel were deficient in not
                     obtaining a P.E.T. scan or that he would have benefited from a more
                     thorough investigation.   See Molina v. State, 120 Nev. 185, 192, 87 P.3d
                     533, 538 (2004) ("Where counsel and the client in a criminal case clearly
                     understand the evidence and the permutations of proof and outcome,
                     counsel is not required to unnecessarily exhaust all available public or
                     private resources."); see also State v. Powell, 122 Nev. 751, 759, 138 P.3d
                     453, 458 (2006) ("An attorney must make reasonable investigations or a
                     reasonable decision that particular investigations are unnecessary." (citing
                     Strickland, 466 U.S. at 691 (1984))).




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                             Failure to prepare Dr. Lewis Etcoff to testify
                             Chappell argues that the district court erred in denying his
                 claim that trial counsel were ineffective for failing to prepare psychologist
                 Dr. Lewis Etcoffs testimony. He contends that Dr. Etcoffs testimony
                 could have been more persuasive if he had not relied solely on Chappell's
                 statements but reviewed other evidence. 2 We conclude that Chappell
                 failed to demonstrate that had counsel better informed Dr. Etcoff the jury
                 would not have found the sexual assault aggravator. Dr. Etcoff provided
                 context for Chappell's abuse in his relationship with Panos and explained
                 how his cognitive deficits contributed to the murder. Therefore, cross-
                 examination about further abuse and problems in the relationship did not
                 undermine his premise. Regardless of how informed the psychologist's
                 opinion could have been, Chappell failed to show that it would have been
                 persuasive in light of the remaining evidence contradicting Chappell's
                 testimony. The evidence demonstrated that Panos ended her relationship
                 with Chappell, Chappell threatened to kill her, he absconded from the
                 parole office, snuck into her window, beat Panos, and killed her. Given
                 this evidence, Dr. Etcoff s opinion, even if it was as informed as Chappell
                 wanted it to be, would not have been persuasive enough to overcome the




                       2 Chappell   further argues that had counsel introduced an expert to
                 testify that pre-ejaculate could contain spermatozoa, Dr. Etcoff would not
                 have admitted that the presence of Chappell's DNA in the victim rendered
                 Chappell's testimony unbelievable. As Dr. Etcoff testified about
                 Chappell's psychological condition, it was not unreasonable for counsel to
                 have not anticipated questioning about the results of DNA evidence.
                 Moreover, as discussed above, Chappell failed to demonstrate counsel was
                 ineffective for failing to obtain such an expert.


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                great weight of evidence demonstrating that any sexual conduct that
                occurred on the day of the murder was not consensual.
                            Failure to prepare Dr. William Danton to testify
                            Chappell argues that better preparation could have rendered
                clinical psychologist Dr. William Danton's testimony more convincing. He
                asserts that Dr. Danton's testimony was unpersuasive because he (1) only
                briefly met with Chappell, (2) contradicted Dr. Etcoffs opinion on whether
                Chappell could remember the murder, and (3) conceded that it was
                possible that Chappell forced Panos to have sex. We conclude that
                Chappell failed to demonstrate that trial counsel performed deficiently in
                their preparation of Dr. Danton. Dr. Danton's testimony related to Panos
                and her state of mind; therefore, it was not undermined by the decision to
                not thoroughly evaluate Chappell. Moreover, Dr. Danton's testimony
                concerning whether Chappell blacked out during the murder is not
                inconsistent with Dr. Etcoff s assessment. In addition, Chappell cannot
                demonstrate that he was prejudiced by Dr. Danton's acknowledgement
                that Chappell could have forced Panos to have sex given the substantial
                evidence showing that Chappell raped - Panos. Therefore, Dr. Danton's
                acknowledgement that rape was at least a possibility, did not leave
                Chappell's defense in a worse position. The district court did not err in
                denying this claim without conducting an evidentiary hearing.
                           Failure to prepare Dr. Todd Grey to testify
                            Chappell argues that the district court erred in denying his
                claim that trial counsel were ineffective for failing to prepare Dr. Todd
                Grey's testimony by informing him of the presence of Chappell's sperm in
                Panos' body and the threats and prior abuse in Chappell and Panos'
                relationship. We disagree. As Chappell's testimony that he had

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                  consensual intercourse with the victim shortly before her murder but did
                  not ejaculate was not believable in light of the other evidence introduced
                  at trial, Dr. Grey's acknowledgment that ejaculation had occurred did not
                  render Chappell's testimony less believable. Chappell further failed to
                  demonstrate that he would not have been sentenced to death had Dr. Grey
                  been aware of prior threats, abuse, Chappell's testimony, and other
                  evidence from the scene. As a medical examiner, Dr. Grey's expertise was
                  limited to the condition of Panos' body. Therefore, his opinion was not
                  undermined by cross-examination about the prior threats, abuse, or
                  Chappell's testimony. Further, even knowing about the prior reports of
                  abuse and testimony in the case did not alter Dr. Grey's conclusion that
                  there was no evidence of injury indicative of sexual assault. We therefore
                  conclude the district court did not err in denying this claim without
                  conducting an evidentiary hearing.
                             Failure to properly prepare a lay mitigation witness
                              Chappell contends that the district court erred in denying his
                  claim that trial counsel were ineffective for not adequately preparing
                  Benjamin Dean to testify so that his testimony was not "severely
                  impeached" by a prior affidavit. We conclude that Chappell failed to
                  demonstrate that had Dean been better prepared, there is a reasonable
                  probability that he would not have been sentenced to death. The subject
                  matter of Dean's testimony was substantially covered by other witnesses,
                  including Mira King, Chappell's sister, and Fred Dean, Chappell's friend,
                  who testified about Chappell's home life and the beginning of Chappell
                  and Panos' relationship. Their testimony was not similarly impeached.
                  Therefore, the district court did not err in denying this claim without
                  conducting an evidentiary hearing.

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                                Failure to object to cumulative victim impact testimony
                                Chappell argues that the district court erred in denying his
                    claim that trial counsel were ineffective for failing to challenge the
                    adequacy of the notice of evidence in aggravation and that appellate
                    counsel was ineffective for failing to argue that the victim-impact evidence
                    was unfairly cumulative. We disagree.
                                The State's notice of evidence in aggravation was sufficient to
                    inform the defense that the State would present evidence from Mike
                    Pollard and Carol Monson. See Mason v. State, 118 Nev. 554, 561, 51 P.3d
                    521, 525 (2002) (noting that SCR 250(4)(f) requires the State's notice of
                    aggravation to summarize any evidence that the State intends to
                    introduce during the penalty hearing). Further, the notice indicated that
                    Pollard would testify about Panos before the murder and Monson would
                    testify about Panos' family life. Although Pollard also testified about how
                    Panos' death affected him, the cross-examination does not indicate that
                    Chappell was caught unaware by any of the testimony. Further, the
                    notice also indicated that the State planned to introduce evidence from
                    Christina Rees and Doris Wichtoski. Accordingly, Chappell could not
                    claim he was unfairly surprised by the introduction of their letters, which
                    Monson read.
                                Chappell would have further been unable to demonstrate on
                    appeal that the trial court's decision to admit Pollard's and Monson's
                    testimony was an abuse of discretion.      See Johnson v. State, 122 Nev.
                    1344, 1353, 148 P.3d 767, 774 (2006) (noting that this court reviews a
                    district court's decision to admit evidence for an abuse of discretion). The
                    evidence presented by Pollard and Monson was not needlessly cumulative.
                    See NRS 48.035. Pollard's prior and live testimony focused on different

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                    aspects of the murder his prior testimony detailed Panos' state of mind
                    and Chappell and Panos' relationship and his live testimony focused on
                    Panos and the effect her death had on him Monson testified about Panos,
                    her relationship with Panos, and the effect of Panos' death on their family.
                    She also read several letters from family members and her own letter
                    which provided more detail about Panos' life and death. Although the
                    testimony and letters covered similar themes, the information contained
                    and perspectives expressed therein were not repetitive and Monson's
                    testimony was brief in the context of the overall length of the penalty
                    hearing. Therefore, the district court did not err in denying this claim
                    without conducting an evidentiary hearing.
                                Failure to address prosecutorial misconduct
                                First, Chappell contends that the district court erred in
                    denying his claim that trial counsel were ineffective for failing to object to
                    several instances of prosecutorial misconduct that Chappell challenged in
                    his direct appeal in order to have benefited from a less deferential
                    standard of review on appeal. We disagree. We concluded on direct
                    appeal that the challenged comments did not constitute prosecutorial
                    misconduct, Chappell u. State (Chappell III), Docket No. 49478, at 23-25
                    (Order of Affirmance, October 20, 2009), and therefore a less deferential
                    standard of review on direct appeal would not have resulted in relief.
                                Second, Chappell contends that the prosecutor committed
                    misconduct by stating that Chappell had been arrested 10 times in front of
                    his children because no evidence supported the comment. We agree that
                    the prosecutor's comment was improper. However, trial counsel objected
                    to the comment, and the district court sustained the objection. Therefore,
                    Chappell cannot demonstrate that counsel's performance was deficient.

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                  Further, given the brevity of the comment, the district court's action in
                  sustaining the objection, and the evidence produced during the penalty
                  hearing, Chappell cannot demonstrate that appellate counsel was
                  ineffective for not raising the issue on appeal. See Hernandez v. State, 118
                  Nev. 513, 525, 50 P.3d 1100, 1108 (2002) (recognizing that a criminal
                  conviction will not be overturned on the basis of prosecutorial misconduct
                  unless the misconduct "so infected the proceedings with unfairness as to
                  make the results a denial of due process"). 3
                               Third, Chappell argues that the district court erred in denying
                  his claim that trial counsel were ineffective for failing to object to the
                  prosecutor's comments describing Chappell as "a despicable human being"
                  who "chose evil." We disagree. Given the context of the comments, the
                  prosecutor was not "ridicul[ing] or belittl[ing] the defendant or the case,"
                  Earl v. State, 111 Nev. 1304, 1311, 904 P.2d 1029, 1033 (1995), but rather
                  was describing the defendant and his actions using terminology that
                  "merely expressed the gravity of the crime charged," Browning v. State,
                  124 Nev. 517, 534, 188 P.3d 60, 72 (2008). As an objection would have
                  been futile, Chappell cannot demonstrate that counsel's performance was •
                  deficient.   See Epps v. State, 901 F.2d 1481, 1483 (8th Cir. 1990)
                  (explaining that prosecutor's comments that were not objectionable cannot
                  be the basis for ineffective-assistance claim based on counsel's failure to
                  object); Ennis v. State, 122 Nev. 694, 706, 137 P.3d 1095, 1103 (2006)




                         3 Chappell also contends that the statement violated NRS 48.045's
                  bar against the admission of prior bad acts. As evidence of uncharged bad
                  acts is admissible during a capital penalty hearing, see Nika v. State, 124
                  Nev. 1272, 1296, 198 P.3d 839; 856 (2008), this argument lacks merit.


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                 (stating that counsel cannot be deemed ineffective for failing to make a
                 futile objection).
                              Failure to object to improper impeachment
                              Chappell argues that the district court erred in denying his
                 claim that trial and appellate counsel were ineffective for failing to
                 challenge the State's improper impeachment of Fred Dean regarding the
                 facts and circumstances of his prior conviction. The State's impeachment
                 was improper because questions about the sentence imposed and facts
                 underlying a witness' conviction are irrelevant.    See Jacobs v. State, 91
                 Nev. 155, 158, 532 P.2d 1034, 1036 (1975); Plunkett v. State, 84 Nev. 145,
                 147, 437 P.2d 92, 93 (1968). Trial counsel should have objected. However,
                 Chappell failed to demonstrate prejudice because the inquiry involved the
                 facts of Dean's prior criminal actions, not Chappell's actions. Although
                 Dean testified on Chappell's behalf, he was not closely associated with
                 Chappell. Moreover, the facts of Dean's drug conviction were relatively
                 innocuous and there is no reasonable probability of a different outcome at
                 the penalty hearing had the information not been presented or that
                 Chappell would have obtained relief on appeal based on this error.
                 Therefore, no relief is warranted on this claim.
                              Admission of bad act evidence
                              Chappell contends that the district court erred in denying his
                 claim that appellate counsel was ineffective for not arguing that Ladonna
                 Jackson's prior testimony, in which she noted that Chappell made money
                 by stealing, was impermissible bad act testimony that was not adequately
                 noticed. We disagree. The State informed Chappell that it intended to
                 introduce testimony from the guilt phase of his trial, including "prior trial
                 and penalty hearing transcripts. . . . for the purpose of establishing the

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                character of the defendant for penalty purposes." This description
                encompassed Jackson's trial testimony. Further, such testimony was not
                inadmissible, as evidence of uncharged prior bad acts is admissible at the
                penalty hearing. See Nika, 124 Nev. at 1296, 198 P.3d at 856. 4 Therefore,
                Chappell failed to demonstrate that appellate counsel's performance was
                deficient.      See Ennis, 122 Nev. at 706, 137 P.3d at 1103 (stating that
                counsel cannot be deemed ineffective for failing to make a futile
                objection). 5
                Cumulative error
                                Chappell argues that the district court erred in denying his
                claim that the cumulative errors of trial and appellate counsel warrant
                relief. We disagree. Chappell only demonstrated that counsel's
                performance was deficient in two respects: failing to introduce an expert
                to testify about the presence of sperm in the victim and failing to object to
                the improper impeachment of Fred Dean. Even assuming that counsel's
                deficiencies may be cumulated, see Harris by and through Ramseyer v.
                Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (concluding that prejudice may
                result from cumulative effect of multiple counsel deficiencies); State v.



                       4 Chappellsuggests, in passing, that this testimony is impalpable or
                highly suspect. In light of the other evidence showing that Chappell stole
                to support his drug habit, attempted to sell belongings and rent the
                victim's car after her murder, was apprehended trying to shoplift, and
                acknowledged that he stole items for his daughter's birthday, Chappell
                cannot demonstrate that Jackson's testimony is impalpable or highly
                suspect.

                       5 To
                          the extent that Chappell contends that the district court erred in
                admitting prior bad act evidence, this claim should have been raised in
                Chappell's direct appeal. See NRS 34.810(1)(b).


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                Thiel, 665 N.W.2d 305, 322 (Wis. 2003) (concluding that multiple incidents
                of deficient performance may be aggregated in determining prejudice
                under   Strickland),   we conclude that any deficiencies in counsel's
                performance had no cumulative impact warranting relief.
                            Having considered Chappell's contentions and concluding that
                they lack merit, we
                            ORDER the judgment of the district court AFFIRMED. 6




                                                                              , C.J.
                                                  Hardesty



                                                  Tcuu   &-      AC
                                                                 L -M              .




                                                  Panguirre


                                                                                  J.




                                                                                  J.




                                                                              ,   J.
                                                  Gibbons


                                                                                  J.
                                                  Pickering



                     °The Honorable Michael Douglas, Justice, voluntarily recused
                himself from participation in the decision of this matter.


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                cc:   Hon. Carolyn Ellsworth, District Judge
                      Christopher R. Oram
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




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