                        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, Branagan contends that trial counsel was ineffective for
                        waiving 3 days of the 10-day notice requirement under NRS 51.385(3)
                        after the district court continued the trial 7 days to provide adequate
                        notice at the request of the State. NRS 51.385(3) provides that when the
                        State seeks the admission of a statement by a child describing sexual
                        conduct or physical abuse, and "the child is unavailable or unable to
                        testify, written notice must be given to the defendant at least 10 days
                        before the trial of the prosecution's intention to offer the statement in
                        evidence." Branagan fails to demonstrate that trial counsel's performance
                        was deficient or prejudice. The district court found that any failure to
                        waive the additional three days "would have been a futile act on trial
                        counsel's part" because "the court would have continued the trial anyway
                        to accommodate the proper notice." The district court also found that
                        notice under NRS 51.385(3) was not required because the victim testified •
                        and was subject to cross-examination. See NRS 51.385(1)(b). We conclude
                        that the district court did not err by denying this claim.
                                    Second, Branagan contends that trial counsel was ineffective
                        for failing to investigate medical issues relating to potential defenses.
                        Branagan claims that such an investigation would have shown that his
                        rights were violated under the Americans with Disabilities Act (ADA), 42
                        U.S.C. § 12132 (1990), by Nevada's failure to recognize diminished
                        capacity as a defense because, under the ADA, a defendant must "be
                        allowed to present evidence of their disability         in any proceeding."

SUPREME COURT
        OF
     NEVADA
                                                              2
(0) 1947A    44:7S514
                 Branagan notes that lilt is quite possible that [he] was involuntarily
                 intoxicated." In a related argument, Branagan contends that trial counsel
                 was ineffective for failing to apply and enforce the ADA in order to present
                 a diminished capacity/involuntary intoxication defense. 2 Branagan fails to
                 demonstrate that trial counsel's performance was deficient or prejudice.
                 Although "the technical defense of diminished capacity is not available in
                 Nevada," Crawford v. State, 121 Nev. 744, 757, 121 P.3d 582, 591 (2005),
                 Branagan was not prohibited from presenting evidence regarding his
                 mental health and use of medications. The district court noted that the
                 jury did, in fact, hear about Branagan's mental health and use of various
                 medications through his own testimony on direct examination. Therefore,
                 Branagan did not demonstrate that the failure to recognize the defense of
                 diminished capacity prevented him from presenting evidence of his
                 disability. Further, the district court found that Branagan failed to
                 specify "what the desired investigation would have revealed" or
                 demonstrated that "but for counsel's errors, the result would have been
                 different." We agree and conclude that the district court did not err by
                 denying this claim.
                             Third, Branagan contends that trial counsel was ineffective for
                 failing to investigate and use the preliminary hearing transcript to
                 impeach the child-victim and her mother on cross-examination. Branagan
                 argues that their trial testimony was inconsistent and differed greatly


                       2Although    the supplemental habeas petition filed by Branagan
                 discussed the ADA and Nevada's failure to recognize a diminished
                 capacity defense, it was not specifically alleged that trial counsel was
                 ineffective for failing to apply and enforce the ADA in order to present
                 such a defense.


SUPREME COURT
        OF
     NEVADA
                                                      3
919 1947A    e
                from their testimony at the preliminary hearing. Branagan fails to
                demonstrate that trial counsel's performance was deficient or prejudice.
                The district court found that Branagan's claims were belied by the record
                because "trial counsel did in fact cross-examine the witnesses at the trial
                using the preliminary hearing transcript." The district court noted that
                counsel impeached both the victim and her mother "using their previous
                statements, their previous descriptions of the incident, how the victim had
                previously described the testimony, and other topics." The district court
                determined that counsel provided "a meaningful cross-examination" of the
                two witnesses indicating "a well-reasoned strategic decision."          See
                generally Rhyne v. State,     118 Nev. 1, 8, 38 P.3d 163, 167-68 (2002)
                (explaining that trial tactics are within counsel's control). The district
                court also determined that Branagan's allegations of prejudice amounted
                to "unsupported conclusory statements." We agree and conclude that the
                district court did not err by denying this claim.
                            Fourth, Branagan contends that trial counsel was ineffective
                for failing to raise a hearsay objection to the testimony of the victim's
                mother regarding the victim's out-of-court statements. Branagan claims •
                that counsel did not object to the testimony "because he clearly never read
                the case file or investigated the case." Branagan fails to demonstrate that
                trial counsel's performance was deficient or prejudice. The district court
                determined that an objection on hearsay grounds would have been futile
                because, after the trustworthiness hearing conducted outside the presence
                of the jury, the mother's testimony was deemed admissible pursuant to
                NRS 51.385. See Ennis v. State, 122 Nev. 694, 706, 137 P.3d 1095, 1103
                (2006) (stating that counsel cannot be deemed ineffective for failing to
                make futile objections). The district court also determined that Branagan

SUPREME COURT
        OF
     NEVADA
                                                       4
(0) [947A
                failed to demonstrate that the outcome of the trial would have been
                different had counsel objected. Finally, in rejecting this claim, the district
                court noted that in Branagan's direct appeal, we found that the district
                court did not abuse its discretion by admitting the challenged testimony.
                See Branagan v. State, Docket No. 57523 (Order of Affirmance, November
                18, 2011). We agree and conclude that the district court did not err by
                denying this claim. Accordingly, we
                            ORDER the judgment of the district court AFFIRMED.




                                                                                 ,   J.




                cc: Hon. David B. Barker, District Judge
                     Michael H. Schwarz
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




SUPREME COURT
         OF
      NEVADA
                                                      5
(0) I.947A
