                            IN THE SUPREME COURT OF THE STATE OF NEVADA


                     LUIS ALONSO HIDALGO, III,                              No. 67640
                     Appellant,
                     vs.
                     THE STATE OF NEVADA,
                                                                                    SLED
                     Respondent.                                                    MAY 1 1 2016


                                             ORDER OF AFFIRMANCE
                                 This is an appeal from a district court order denying
                     appellant's postconviction petition for a writ of habeas corpus. Eighth
                     Judicial District Court, Clark County; Valerie Adair, Judge.
                                 Appellant contends that the district court erred by denying his
                     claims of ineffective assistance of 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.   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); see Kirksey v. State, 112 Nev. 980, 998,
                     923 P.2d 1102, 1114 (1996) (applying Strickland to appellate counsel). 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 contends that the district court erred by
                     denying his claim that trial counsel were ineffective for failing to tender
                     appropriate instructions regarding second-degree murder. Specifically,
                     appellant challenges the instructions relating to co-conspirator liability

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                     and second-degree felony murder. Regarding the co-conspirator liability
                     instructions, appellant failed to demonstrate that the instructions given at
                     trial were inaccurate.   See Bolden v. State, 121 Nev. 908, 923, 124 P.3d
                     191, 201 (2005) (holding that "vicarious coconspirator liability may be
                     properly imposed for general intent crimes only when the crime in
                     question was a 'reasonably foreseeable consequence' of the object of the
                     conspiracy"). To the extent appellant argues that second-degree murder is
                     not a general intent crime pursuant to Ho v. Carey, 332 F.3d 587, 592 (9th
                     Cir. 2003), his reliance on Ho is misplaced because Ho addressed
                     California law. Regarding second-degree felony murder, even assuming
                     that the jury was not properly instructed pursuant to Labastida v. State,
                     115 Nev. 298, 307, 986 P.2d 443, 449 (1999), appellant failed to
                     demonstrate that trial counsel were deficient or that he was prejudiced
                     given the evidence presented at trial and the theories of vicarious liability
                     alleged in the charging document. Therefore, we conclude that the district
                     court did not err by denying this claim. 1
                                   Second, appellant contends that the district court erred by
                     denying his claim that trial counsel were ineffective for failing to challenge
                     the deadly-weapon enhancement based on Moore v. State, 117 Nev. 659,
                     663, 27 P.3d 447, 450 (2001) (holding that "it is improper to enhance a
                     sentence for conspiracy using the deadly weapon enhancement."). Because
                     the deadly weapon enhancement was not applied to the conspiracy
                     conviction, appellant failed to demonstrate that counsel was ineffective.
                     To the extent appellant challenges the instruction given at trial based on

                               the same reasons, we conclude the district court did not err by
                           1 For
                     denying appellant's claim regarding appellate counsel.



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                   Brooks v. State, 124 Nev. 203, 180 P.3d 657 (2008), no relief is warranted
                   because the instruction complied with Brooks; moreover, appellant has
                   challenged the instruction for the first time on appeal. Therefore, we
                   conclude that the district court did not err by denying this claim.
                               Third, appellant contends that the district court erred by
                   denying his claim that trial counsel were ineffective for failing to proffer
                   an instruction regarding the admissibility of co-conspirator statements
                   that was consistent with the Federal Rules of Evidence, and appellate
                   counsel was ineffective for failing to argue that the admission of his co-
                   conspirator's statements violated Crawford v. Washington, 541 U.S. 36, 56
                   (2004). Appellant failed to demonstrate that the instructions given at trial
                   were incorrect or that the statements should not have been admitted.     See

                   McDowell v. State, 103 Nev. 527, 529, 746 P.2d 149, 150 (1987) (adopting
                   the "slight evidence" standard in Nevada); see also Crawford, 541 U.S. at
                   56 (recognizing that statements made in furtherance of a conspiracy are
                   nontestimonial); Lilly v. Virginia, 527 U.S. 116, 137 (1999) (recognizing
                   that statements made in the furtherance of a conspiracy are reliable).
                   Therefore, he fails to demonstrate that counsel were ineffective.
                   Accordingly, we conclude that the district court did not err by denying this
                   claim.
                                Fourth, appellant contends that the district court erred by
                   denying his claim that trial counsel were ineffective for failing to seek a
                   severance during trial to admit evidence that was favorable to him but
                   unfavorable to his codefendant. We disagree because the trial court did
                   not decline to admit the evidence based on prejudice to appellant's
                   codefendant and therefore a severance would not have been granted on
                   this basis. Because appellant failed to demonstrate that a severance

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                  would have been granted under the circumstances, trial counsel were not
                  ineffective. Therefore, we conclude that the district court did not err by
                  denying this claim.
                                  Fifth, appellant contends that the district court erred by
                  denying his claim that trial counsel were ineffective for failing to seek a
                  severance of the solicitation counts. Appellant failed to demonstrate that
                  a severance would have been granted because the counts were clearly
                  connected together. See Weber v. State, 121 Nev. 554, 573, 119 P.3d 107,
                  120 (2005). Therefore counsel were not ineffective. Accordingly, we
                  conclude that the district court did not err by denying this claim.
                                  Sixth, appellant contends that cumulative error entitles him
                  to relief. Because we have found no error, there are no errors to cumulate.
                                  Having considered appellant's contentions and concluded that
                  no relief is warranted, we
                                  ORDER the judgment of the district court AFFIRMED.



                                                                         J.
                                             Douglas


                                                                              1-(1       J.
                                                               Gibbons




                  cc: Hon. Valerie Adair, District Judge
                       Richard F. Cornell
                       Attorney General/Carson City
                       Clark County District Attorney
                       Eighth District Court Clerk


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