                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                DAVID JAMES KING,                                      No. 67634
                Appellant,
                vs.
                WARDEN WILLIAM DONAT,
                                                                            FILED
                Respondent.                                                 JUN 2 3 2016
                                                                           TRACE K. LINDEMAN
                                                                        CLERK OF SUPREME COURT
                                                                       BY
                                                                             DEPUTY CLERK




                      ORDER AFFIRMING IN PART AND REMANDING IN PART
                            This is an appeal from a district court order denying appellant
                David James King's postconviction petition for a writ of habeas corpus.
                Fourth Judicial District Court, Elko County; Charles M. McGee, Senior
                Judge.
                            King contends that the district court erred by denying his
                petition, which included claims of ineffective assistance of counse1. 1 To
                prove ineffective assistance of trial 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).      To prove ineffective
                assistance of appellate counsel, a petitioner must demonstrate that


                       'King's appendix does not include the trial transcripts, which would
                have precluded this court's review of the claims had the State not provided
                the transcripts.



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                    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 had a reasonable probability of success on appeal.
                    Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996). 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, King contends that the district court erred by denying
                    his claim that counsel was ineffective for failing to challenge the
                    prosecutor's repeated statement that he lied about the circumstances
                    surrounding his child's death. We agree that the prosecutor's statements
                    were sufficiently egregious that counsel's failure to object or raise the
                    matter on appeal fell below an objective standard of reasonableness.       See
                    Rowland v. State, 118 Nev. 31, 40, 39 P.3d 114, 119 (2002) (holding that a
                    prosecutor's statement that the defendant lied can constitute misconduct
                    depending on the circumstances, and therefore "we must look to the
                    attorney for the defendant to object"). However, King provides no
                    meaningful explanation as to how he was prejudiced and fails to
                    demonstrate that the result of his trial or appeal would have been
                    different. Therefore, we conclude that the district court did not err by
                    denying this claim.
                                Second, King contends that the district court erred by denying
                    his claim that counsel was ineffective for failing to challenge the
                    prosecutor's comments that people tend to tell the truth when intoxicated.
                    We disagree. Our review of the record indicates that the prosecutor's
                    statements were not intended to be factual and constituted appropriate

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                 argument, and therefore counsel's failure to object was not unreasonable.
                 See Ennis v. State, 122 Nev. 694, 706, 137 P.3d 1095, 1103 (2006) ("Trial
                 counsel need not lodge futile objections to avoid ineffective assistance of
                 counsel claims."). King also fails to explain how he was prejudiced.
                 Therefore, we conclude that the district court did not err by denying this
                 claim.
                             Third, King contends that the district court erred by denying
                 his claim that counsel was ineffective for failing to challenge the
                 prosecutor's disparagement of the defense expert. The prosecutor's
                 comparison of the defense expert to a person who had read a flight manual
                 but never flown a plane was an appropriate way to argue that the State's
                 experts were more experienced than the defense's and therefore counsel
                 was not deficient for failing to challenge the statement. However, the
                 prosecutor's comment that the defense expert was only testifying to pad
                 his resume was an improper denigration of the witness, see Sipsas v.
                 State, 102 Nev. 119, 125, 716 P.2d 231, 234 (1986) (concluding that the
                 prosecutor's description of the defense expert as a "hired gun" was
                 inappropriate), and therefore counsel's failure to object or raise the matter
                 on appeal fell below an objective standard of reasonableness, see Riley v.
                 State, 110 Nev. 638, 651-52, 878 P.2d 272, 281 (1994) (recognizing that
                 counsel's failure to object to prosecutorial misconduct may constitute
                 deficient performance). Although we conclude that counsel was deficient,
                 King fails to demonstrate that he was prejudiced. Therefore, we conclude
                 that the district court did not err by denying this claim.
                             Fourth, King contends that the district court erred by denying
                 his claim that the prosecutor committed misconduct by offering personal
                 knowledge of what constituted an abandoned and malignant heart. We

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                    agree that the comment was improper because it suggested that the jury
                    should rely on the legal conclusions endorsed by the prosecutor, see Collier
                    v. State, 101 Nev. 473, 480, 705 P.2d 1126, 1130 (1985), and that counsel's
                    failure to object or raise the matter on appeal fell below an objective
                    standard of reasonableness. However, King fails to demonstrate that he
                    was prejudiced. Therefore, we conclude that the district court did not err
                    by denying this claim.
                                Fifth, King contends that the district court erred by denying
                    his claim that counsel was ineffective for incorrectly advising him that the
                    State could impeach him with a suppressed involuntary statement if he
                    testified at trial. The district court conducted an evidentiary hearing
                    regarding this claim but refused to consider whether King was credible,
                    reasoning that credibility was exclusively a determination for the jury.
                    The district court was correct to note that the ultimate issue was whether
                    there was a reasonable probability that King's testimony might have
                    influenced the verdict, not whether the district court found King's version
                    of events to be truthful.   See Strickland, 466 U.S. at 687-88. But the
                    district court was incorrect to disavow its duty to evaluate whether King
                    was credible when he stated that counsel misadvised him and that he
                    would have testified but for counsel's advice. See, e.g., Mann v. State, 118
                    Nev. 351, 356, 46 P.3d 1228, 1231 (2002) (reversing a postconviction
                    proceeding for the district court to• determine whether appellant was
                    credible when he claimed counsel ignored his instruction to file a direct
                    appeal). While the district court made some factual findings in this
                    regard, they do not completely resolve these issues. The district court's
                    failure to evaluate King's credibility prevents this court from reviewing
                    the claim. Accordingly, we remand this matter to the district court to

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                        make appropriate credibility, determinations, apply the standard
                        enunciated in Strickland, and enter an order which complies with NRS
                        34.830(1). 2
                                        It is so ORDERED.


                                                                              til-e-4-c     J.
                                                                 Hardest


                                                                   CdEr
                                                                 Saitta
                                                                                            J.


                                                                          Adam              J.




                        cc: Chief Judge, The Fourth Judicial District Court
                             Hon. Charles M. McGee, Senior Judge
                             Lockie & Macfarlan, Ltd.
                             Attorney GenerallCarson City
                             Elko County District Attorney
                              Elko County Clerk




                                   order constitutes our final disposition in this matter. Any
                               2 This
                        subsequent appeal shall be docketed as a new matter.



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