                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 DENNIS MARC GRIGSBY,                                    No. 68783
                 Appellant,
                 vs.
                 THE STATE OF NEVADA,                                       FILED
                 Respondent.
                                                                             JUN 1 7 2016




                                           ORDER OF AFFIRMANCE
                            This is a pro se appeal from a district court order denying a
                 postconviction petition for a writ of habeas corpus. Eighth Judicial
                 District Court, Clark County; Kathleen E. Delaney, Judge.
                            In his pro se postconviction petition, appellant Dennis Marc
                 Grigsby argued that trial and appellate counsel were ineffective on three
                 grounds.' To prevail on a claim of ineffective assistance of counsel, a
                 petitioner must show that counsel's performance was deficient because it
                 fell below an objective standard of reasonableness and the deficiency
                 prejudiced the defense.     Strickland v. Washington,    466 U.S. 668, 687
                 (1984). We give deference to the court's factual findings if supported by



                       'The district court appointed counsel to represent Grigsby in the
                 postconviction proceeding. See NRS 34.750. Subsequently, Grigsby filed a
                 motion to represent himself with standby counsel. The district court
                 granted the motion in part, allowing Grigsby to represent himself without
                 standby counsel.




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                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, Grigsby argued that trial counsel were ineffective for
                not seeking to suppress evidence collected during an unlawful search of
                his residence. In late March 2008, Grigsby kicked his wife, Tina Grigsby,
                out of their apartment because he believed that she was dating another
                man. Several days later, Tina moved in with her boyfriend, Anthony
                Davis, who lived in the same apartment complex as Grigsby. On the night
                of April 2, 2008, Grigsby got into an argument with Davis outside of Davis'
                apartment. Tina heard the exchange from inside Davis' apartment. The
                argument ceased after a few minutes; Tina heard gunshots about 10 to 15
                minutes later. When the police arrived shortly thereafter, she relayed this
                information to police officers, who knocked on Grigsby's door. There was
                no answer. While police were still investigating the crime scene, Grigsby's
                mother, Mildred Grigsby, appeared, asking to gain entry into Grigsby's
                apartment to retrieve unidentified items. She was not allowed into the
                apartment but provided a key, which Grigsby had given her, to police
                officers so that they could determine if Grigsby was in the apartment; he
                was not in the residence. Subsequently, the police secured a search
                warrant, searched Grigsby's apartment, and seized several items.
                            Grigsby argued that the search of his apartment was improper
                because even though Mildred was the leaseholder of the apartment, she
                had no authority to allow police into his apartment as she did not reside
                there. The district court rejected his trial-counsel claim, determining that
                Mildred had actual authority to consent to a search of Grigsby's apartment


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                and therefore he assumed the risk of Mildred consenting to a search of the
                apartment.    See Taylor v. State, 114 Nev. 1071, 1079, 968 P.2d 315, 321
                (1998). Moreover, the district court concluded, the search warrant was
                properly issued based on Tina's statements to the police and the initial
                entry into the apartment was not the "but-for cause" of the discovery of the
                evidence in Grigsby's apartment. Rather, the initial entry into the
                apartment was simply to look for Grigsby and the seized evidence was
                obtained after a search warrant had issued. Therefore, trial counsel were
                not ineffective for not seeking to suppress the seized evidence. We
                conclude that the district court did not err by denying this claim.
                             Second, Grigsby argued that appellate counsel was ineffective
                for not challenging the prosecutor's comment to the jury that a guilty
                verdict is permissible so long as the determination of guilt is unanimous
                even if the jurors were not unanimous as to the theory of guilt, as the jury
                was not instructed on that legal principle before deliberations. Because
                the prosecutor's comment was a correct statement of the law, see Schad v.
                Arizona, 501 U.S. 624, 631 (1991); Holmes v. State, 114 Nev. 1357, 1364,
                n.4, 972 P.2d 337, 342 n.4 (1998), Grigsby failed to demonstrate that
                appellate counsel was ineffective for failing to challenge the comment on
                appeal. Accordingly, the district court properly denied this claim.
                             Third, Grigsby argued that appellate counsel was ineffective
                for not raising a claim that the district court erred by providing a
                supplemental instruction to the jury several hours after deliberations had
                begun. However, the record shows that the district court did not give the
                jury a supplemental instruction after deliberations began. Because




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                Grigsby failed to show that appellate counsel was ineffective for not
                raising this claim on appeal, the district court properly denied this claim.
                            Having considered Grigsby's claims and concluded that they
                lack merit, we
                            ORDER the judgnwzt of the district court AFFIRMED. 2


                                                                      J.
                                         Douglas



                                                            Gibbons




                cc: Hon. Kathleen E. Delaney, District Judge
                     Dennis M. Grigsby
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




                      2 Because   Grigsby did not demonstrate error, his contention that
                cumulative error requires reversal of his conviction and sentence lacks
                merit. Therefore, the district court properly denied this claim. We further
                conclude that the district court did not err by denying Grigsby's petition
                without conducting an evidentiary hearing. See Mann v. State, 118 Nev.
                351, 354, 46 P.3d 1228, 1239 (2002) (observing that a postconviction
                petitioner is entitled to evidentiary hearing when the petitioner asserts
                claims supported by specific factual allegations not belied by the record
                that, if true, would entitle him to relief).




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