                     P.2d 920, 922 (1996). 1 Therefore, the district court did not err in

                     dismissing this claim.

                                 Next, appellant argues that he received 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 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 failing

                     to investigate phone records of the victim and her mother to demonstrate

                     that they frequently called appellant at all hours, even after the abuse



                            'To the extent appellant requests this court to adopt an additional
                     standard for establishing a fundamental miscarriage of justice, we decline
                     to do so.



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                allegations were reported. Appellant claims that this evidence would cast

                doubt on the victim's accounts of the abuse and would support his defense

                that the victim fabricated the allegations because appellant's time, money,

                and attention were drawn away from the victim and her mother and

                towards appellant's new girlfriend. Appellant fails to demonstrate

                deficiency or prejudice. At the evidentiary hearing, appellant's former

                counsel testified that he did not believe the records were relevant, that it

                was known that the victim and appellant had contact, and that he was

                worried that phone records might show evidence of grooming. The district

                court stated at the evidentiary hearing that counsel was not deficient in

                his questioning of the victim and her mother regarding their motives to lie

                and in his attempts to impeach their credibility where he could,

                strategically evaluating which areas to delve into and which to omit

                without causing appellant more harm than good. The district court

                further stated that no additional evidence or lines of argument could have

                been presented that would have changed the result of the trial. The

                district court's findings are supported by substantial evidence, and we

                agree with the district court's determinations and conclude that it did not

                err by denying this claim.

                            Second, appellant argues that counsel was ineffective for

                failing to provide witnesses on appellant's behalf. Specifically, appellant

                argues that counsel should have secured appellant's girlfriend as a

                witness in order to testify that the victim and her mother called and made

                threatening, jealous statements to the girlfriend, thereby supporting the

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                defense that the victim fabricated the abuse allegations because of

                jealousy. 2 Appellant fails to demonstrate deficiency or prejudice. At the

                evidentiary hearing, counsel testified that his investigator contacted

                witnesses at appellant's request and that, after receiving information from

                his investigator, counsel was concerned that the witnesses might open the

                door to character evidence. The district court stated at the evidentiary

                hearing that counsel was not deficient in determining that the witnesses

                were not relevant or were not helpful because of what evidence might be

                admitted as a result of the witnesses' testimony.     See Doleman v. State,

                112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996) (trial counsel's strategic

                decisions are "virtually unchallengeable absent extraordinary

                circumstances" (internal quotation marks omitted)). The district court

                further stated that no additional evidence or lines of argument could have

                been presented that would have changed the result of the trial The

                district court's findings are supported by substantial evidence, and we

                agree with the district court's determinations and conclude that it did not

                err by denying this claim.

                             Third, appellant argues that counsel was ineffective for failing

                to seek a legal and permissible middle ground to admit evidence that

                      2 To  the extent appellant argues that counsel was ineffective for
                failing to call any other witness, appellant failed to allege specific facts
                that, if true, entitled him to relief. Hargrove v. State, 100 Nev. 498, 502,
                686 P.2d 222, 225 (1984). Appellant failed to identify what witnesses
                should have been called and what testimony those witnesses would have
                offered.



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                appellant was out of the state during a portion of the timeframe in which

                the victim alleged the abuse occurred without admitting that he was

                incarcerated. This argument was not raised below, and appellant "cannot

                change [his] theory underlying an assignment of error on appeal." Ford v.

                Warden, 111 Nev. 872, 884, 901 P.2d 123, 130 (1995). In his habeas
                petition, his supplement to the petition, and throughout his testimony at

                the evidentiary hearing, appellant maintained that counsel was ineffective

                for failing to present evidence that appellant was incarcerated, and that

                was the claim ruled upon by the district court. Therefore, we decline to

                consider this claim on appeal.

                            Fourth, appellant argues that counsel was ineffective for

                failing to raise consent as a defense to the sexual assault charges. This

                argument was not raised below, and we decline to consider it on appeal in

                the first instance. Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173

                (1991), overruled on other grounds by Means v. State, 120 Nev. 1001, 1012-

                13, 103 P.3d 25, 33 (2004).

                            Fifth, appellant argues that counsel was ineffective for failing

                to investigate and effectively challenge the recorded phone calls between

                the victim and appellant. Appellant fails to demonstrate deficiency or

                prejudice. Appellant makes only a bare allegation that, had counsel

                investigated, he would have discovered that appellant was speaking to

                someone besides the victim, which is insufficient to demonstrate a

                reasonable probability of a different outcome. Furthermore, counsel filed

                a motion in limine to preclude introduction of the phone calls. The district

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                 court granted the motion in limine but stated that the tapes could be

                 admitted for impeachment purposes. 3 Appellant contends that, had

                 counsel done a better job, the tapes would not have been admitted for any

                 purpose and that his cross-examination of the victim and her mother

                 regarding the phone calls would not have been limited. We conclude that

                 appellant fails to demonstrate deficiency or prejudice. On direct appeal,

                 appellant challenged the district court's limitation of the cross-

                 examination of the victim and her mother regarding the recorded phone

                 calls, and we concluded that the inadmissible evidence could have been

                 introduced to correct a false impression if one was created during counsel's

                 examination. Yaag v. State, Docket No. 53787 (Order of Affirmance, April

                 8, 2010). Therefore, the district court did not err in denying this claim.

                             Sixth, appellant argues that counsel was ineffective for failing

                 to challenge prosecutorial misconduct when the State threatened to reveal

                 the details of appellant's incarceration if appellant presented evidence

                 that he was out of Nevada during a portion of the timeframe in which the

                 victim alleged the abuse occurred. This argument was not raised below,

                 and appellant "cannot change [his] theory underlying an assignment of

                 error on appeal." Ford, 111 Nev. at 884, 901 P.2d at 130. In his habeas

                 petition, his supplement to the petition, and his reply, appellant failed to



                       3 As the recorded phone calls were not admitted into evidence,
                 appellant fails to demonstrate deficiency or prejudice by counsel's failure
                 to make an evidentiary objection to the recordings.



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                       allege this theory when claiming prosecutorial misconduct; therefore, we

                       decline to consider this claim on appeal.

                                   Seventh, appellant argues that counsel was ineffective for

                       failing to challenge prosecutorial misconduct when the State repeatedly

                       emphasized and relied on false testimony, specifically that the victim was

                       11 years old when the abuse began in Nevada, in order to obtain a

                       conviction. Appellant alleges that he was incarcerated in California until

                       July 25, 2005; the State failed to correct the victim's testimony that she

                       was 11 years old when the abuse began in Nevada, an impossibility given

                       appellant's date of release from custody; and the State emphasized the

                       victim's incorrect testimony by repeatedly arguing that the abuse began in

                       Nevada when the victim was 11 years old. Appellant fails to demonstrate

                       deficiency or prejudice. Appellant fails to demonstrate when he was

                       released from custody, as he provided documentation that shows only his

                       conviction date, his sentencing term, and his credit for time served.

                       Therefore, appellant fails to demonstrate that counsel was objectively

                       unreasonable for failing to challenge the State's conduct or that there was

                       a reasonable probability of a different outcome at trial had counsel

                       challenged the conduct.   See Thomas v. State, 120 Nev. 37, 43 & n.4, 83

                       P.3d 818, 822 & n.4 (2004) (concluding that appellant is ultimately

                       responsible for providing this court with portions of the record necessary

                       to resolve his claims on appeal); Greene v. State, 96 Nev. 555, 558, 612

                       P.2d 686, 688 (1980) ("The burden to make a proper appellate record rests



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                  on appellant."). Therefore, the district court did not err in denying this

                  claim.

                              Next, appellant argues that he received 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 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,

                  466 U.S. at 697. Appellate counsel is not required to raise every non-

                  frivolous issue on appeal.    Jones v. Barnes, 463 U.S. 745, 751 (1983).

                  Rather, appellate counsel will be most effective when every conceivable

                  issue is not raised on appeal. Ford v. State, 105 Nev. 850, 853, 784 P.2d

                  951, 953 (1989).
                              Appellant argues that appellate counsel was ineffective for

                  failing to raise the following claims of prosecutorial misconduct on appeal:

                  that the State threatened to reveal the details of appellant's incarceration

                  and that the State repeatedly emphasized and relied on false testimony in

                  order to obtain a conviction. Appellant failed to raise the claim regarding

                  the State's threats below. He "cannot change [his] theory underlying an

                  assignment of error on appeal," Ford, 111 Nev. at 884, 901 P.2d at 130,

                  and we decline to consider this claim. As appellant fails to demonstrate

                  that the State emphasized and relied on false testimony, he fails to

                  demonstrate that appellate counsel was deficient in not raising this claim

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                or that the claim would have a reasonable probability of success on appeal.

                Therefore, the district court did not err in denying this claim.

                            Lastly, appellant argues that the district court misconstrued

                the doctrine of the law of the case when relying upon this court's

                determination that the charging document provided sufficient notice. To

                the extent that there is any error in dismissing claims as barred by the

                law-of-the-case doctrine, for the reasons discussed above, we conclude that

                the district court reached the right result in denying appellant's petition.

                See Wyatt v. State,   86 Nev. 294, 298, 468 P.2d 338, 341 (1970) ("If a

                judgment or order of a trial court reaches the right result, although it is

                based on an incorrect ground, the judgment or order will be affirmed on

                appeal."). Accordingly, we

                            ORDER the judgment of the district court AFFIRMED.



                                                                                   J.
                                                    Hardesty

                                                  r—Dcm
                                                                                   J.
                                                    Douglas


                                                                                   J.



                cc:   Hon. Elissa F. Cadish, District Judge
                      Mario D. Valencia
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk
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