                 sentencing hearing on the battery conviction, and Elmajzoub appeals from
                 the portion of the order that denies the rest of his claims.
                 NRS 200.400
                             The State argues that the district court erred by concluding
                 that trial and appellate counsel were ineffective relative to Elmajzoub's
                 statutory right to jury sentencing pursuant to NRS 200.400(4)(a). The
                 district court determined that trial counsel was deficient because he did
                 not know of or inform Elmajzoub of his statutory right to jury sentencing
                 on the battery conviction and that Elmajzoub was prejudiced because he
                 received the more severe of the two sentencing alternatives. The district
                 court also determined that appellate counsel was ineffective for failing to
                 challenge the deprivation of this right on appeal.
                              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 counsel's performance fell below an objective standard of
                 reasonableness and 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). 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



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                 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).
                              The district court's factual findings are supported by
                 substantial evidence and are not clearly wrong, and we conclude that the
                 State has not demonstrated that the district court erred as a matter of
                 law.' See Colley v. State, 98 Nev. 14, 18, 639 P.2d 530, 533 (1982)
                 (examining prejudice in the context of NRS 200.400(4)(a)); see also Colley
                 v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986) (same).
                              The State argues that the district court erred because the
                 plain language of the statute does not allow for jury sentencing and
                 because the legislative history of the statute demonstrates that it was the
                 Legislature's intent to have the district court sentence a person convicted
                 under NRS 200.400(4)(a). NRS 200.400(4)(a) provides that a person
                 convicted of battery with the intent to commit sexual assault resulting in
                 substantial bodily harm to the victim shall be punished by imprisonment
                 for either life without the possibility of parole or life with the possibility of



                         1 Whilethe district court determined that Elmajzoub had to waive
                 his right to jury sentencing on the record, we are unaware of any such
                 requirement; rather, trial counsel may waive some rights on behalf of a
                 defendant as part of a trial tactic or strategy. See Wilson v. Gray, 345 F.2d
                 282, 286 (9th Cir. 1965). Regardless, trial counsel did not strategically
                 waive this right as he testified that he did not read the statute to allow for
                 jury sentencing.




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                      parole after a minimum of 10 years has been served "as determined by the
                      verdict of the jury, or the judgment of the court if there is no jury." 2 We
                      disagree with the State's contention that this language is unclear or
                      ambiguous. 3 The statute provides for a jury to sentence a person convicted
                      of the offense unless there is no jury. As the language is clear on its face,
                      we need not look beyond the statute to determine its meaning.             See

                      Goudge v. State, 128 Nev., Adv. Op. 52, 287 P.3d 301, 303 (2012); Sonia F.
                      v. Eighth Judicial Din. Court, 125 Nev. 495, 499, 215 P.3d 705, 707
                      (2009). 4
                                    On cross-appeal, Elmajzoub argues that the district court's
                      remedy of reversing his sentence for the battery count and remanding for
                      a new sentencing hearing is inappropriate as the statute mandates he be
                      sentenced by the jury that determines his guilt. We are not convinced by


                             2 We note that MRS 200.400(4)(a) was recently amended to delete the
                      quoted language A.B. 49 § 9, 78th Leg. (Nev. 2015). This amendment
                      applies to offenses committed on or after October 1, 2015. Id. § 27(3).

                             3 We further disagree with the State's contentions that the lack of
                      specificity in the statute regarding the presentation of aggravating or
                      mitigating evidence or the procedure for waiving jury sentencing nullifies
                      this plain language.

                             4We  express no opinion as to the procedures for the new sentencing
                      hearing. In the absence of specific guidance from the Legislature, it is
                      within the district court's discretion to determine what evidence is
                      relevant and admissible to the jury's sentencing determination.        See
                      generally Atkins v. State, 112 Nev. 1122, 1127, 923 P.3d 1119, 1123 (1996)
                      ("Trial courts have considerable discretion in determining the relevance
                      and admissibility of evidence."), overruled on other grounds by McConnell
                      v. State, 120 Nev. 1043, 102 P.3d 606 (2004).




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                 Elmajzoub's arguments and conclude that the district court's resolution of
                 this claim should be affirmed.      Cf. Dixon v. State, 83 Nev. 120, 122, 424
                 P.2d 100, 101 (1967) (holding that the "fflailure to properly sentence does
                 not render the entire trial and proceeding a nullity" (internal quotation
                 marks omitted)).
                 Ineffective Assistance of Counsel
                             On cross-appeal, Elmajzoub argues that the district court
                 erred in rejecting numerous claims of ineffective assistance of trial
                 counsel, including counsel's failure to (1) prepare for trial/sentencing; (2)
                 consider, locate, or investigate "Billy"; (3) effectively cross-examine key
                 witnesses; (4) move for a mistrial or to set aside the verdict; (5) secure an
                 unbiased or impartial jury; (6) object to inadmissible evidence; (7) present
                 any defense witnesses, including those who could rebut the theory of
                 flight; (8) object to the use of Elmajzoub's picture with the word "guilty"
                 superimposed on it in closing argument; (9) object to obvious prosecutorial
                 misconduct as well as surprise and improper identification by the
                 witnesses; (10) obtain and review the casino's surveillance and documents;
                 (11) test and/or discover whether the victim's pants were retested by the
                 defense expert; (12) ensure a proper record of proceedings; and (13) file
                 pretrial and post-verdict motions. Ehnajzoub also claims that trial counsel
                 was ineffective in his advice relative to taking the stand, the intoxication
                 defense, and writing a letter to the victim prior to sentencing. He also
                 argues that trial counsel helped the State to convict him. Elmajzoub fails
                 to demonstrate that trial counsel was deficient or that there was a
                 reasonable probability of a different outcome given the overwhelming




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                   evidence against him. 5 Therefore, we conclude the district court did not
                   err in denying these claims.
                                Elmajzoub also argues that he received ineffective assistance
                   of appellate counsel because counsel failed to appeal numerous
                   meritorious issues, including sufficiency of the evidence and cumulative
                   error, to petition this court for rehearing or en banc review despite four
                   allegedly faulty assumptions in our resolution of the direct appeal, and to
                   raise on appeal any of the above-mentioned issues of ineffective assistance
                   of trial counsel. The district court concluded that Elmajzoub failed to set
                   forth any appellate issues that would have had a reasonable probability of
                   success. Based upon our review of the record, we conclude the district
                   court did not err in denying these claims.
                   NRS 34.810
                                Elmajzoub argues that the district court erred by summarily
                   dismissing numerous independent claims pursuant to NRS 34.810(1)(b)(2)
                   (waiver of claims that could have been raised on direct appeal), including:
                   (1) he was denied his right to due process due to the trial court's failure to
                   provide him with an impartial tribunal free of juror bias or prejudicial
                   atmosphere; (2) he was denied his due process right due to the State's
                   failure to disclose material exculpatory and/or impeachment evidence,


                         5 We  note that Elmajzoub failed to include surveillance videotape
                   introduced at trial depicting his movements at the casino on the night of
                   the crime. See NRAP 30(d); Thomas v. State, 120 Nev. 37, 43 & n.4, 83
                   P.3d 818, 822 & n.4 (2004) (stating that appellant is ultimately
                   responsible for providing this court with portions of the record necessary
                   to resolve his claims on appeal).




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                misleading the jury with purported evidence not supported by the facts or
                testimony, and other acts of prosecutorial misconduct; (3) there was
                insufficient evidence to support his convictions; (4) his sentence
                constituted cruel and unusual punishment; (5) his bail was unreasonable;
                (6) the police used suggestive identification; (7) he was denied his right to
                a fair trial based upon alleged misconduct of the State; (8) the trial court
                erred in admitting blood evidence; (9) his sentence was illegal because the
                jury was supposed to impose it; and (10) he is factually innocent. We
                conclude the district court did not err by dismissing these claims as
                Elmajzoub failed to demonstrate good cause or actual prejudice for failure
                to raise these claims on direct appeal.     See Bejarano v. State, 122 Nev.
                1066, 1073, 146 P.3d 265, 270 (2006).
                            Additionally, Elmajzoub claims that the district court abused
                its discretion by denying his petition because of rampant prosecutorial
                misconduct. The district court summarily dismissed his claims of
                prosecutorial misconduct because the claims could have been raised on
                direct appeal. See NRS 34.810(1)(b)(2). While Elmajzoub argues that he
                was unable to show good cause and prejudice for the failure to raise these
                claims on direct appeal because the district court did not grant an
                evidentiary hearing, this argument is without merit. Elmajzoub was
                required to demonstrate good cause on the face of the petition, see State v.
                Haberstroh, 119 Nev. 173, 180-81, 69 P.3d 676, 681-82 (2003), and he




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                failed to meet this burden. Accordingly, we conclude the district court did
                not err by denying these claims. 6
                Postconviction Proceedings
                             Elmajzoub argues that the district court committed numerous
                errors during the postconviction proceedings, including: (1) relying upon,
                and actively seeking before an evidentiary hearing, findings of fact and
                conclusions of law from the State; (2) requesting the State to draft an
                order even though it was not the prevailing party; (3) not providing
                sufficient direction to enable the State to draft the order; (4) failing to
                allow discovery for the evidentiary hearing; (5) failing to enforce
                subpoenas for trial and appellate counsel with regard to counsel bringing
                substantive documents to the evidentiary hearing; (6) failing to allow
                evidence of prosecutorial misconduct at the evidentiary hearing as well as
                evidence of the remainder of his claims that were not based on ineffective
                assistance of counsel; (7) failing to promptly examine the petition; and (8)
                relying on the law-of-the-case doctrine. 7 We have examined each of
                Elmajzoub's contentions and conclude that no relief is warranted.


                       °We are concerned with the State's comment during closing
                argument suggesting what type of person would walk a woman home, get
                jumped, and walk away without any follow up; however, we conclude that
                Elmajzoub fails to demonstrate a fundamental miscarriage of justice
                sufficient to excuse the procedural default that precludes consideration of
                this issue on its merits. See Bejarano, 122 Nev. at 1073, 146 P.3d at 270.

                      7 We  agree with Elmajzoub that some of his claims were not barred
                by the doctrine of law of the case; however, as we address these claims in
                this order, we conclude they lack merit and no relief is warranted. See
                Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970).




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                              Elmajzoub also claims the district court arbitrarily revoked
                  his postconviction counsel's pro hac vice admission. He argues that the
                  district court effectively created a right to counsel by appointing
                  replacement counsel, that the violation of his right to counsel of choice was
                  a structural defect, and that he was prejudiced because, with replacement
                  counsel, he did not present all the desired evidence and testimony at the
                  evidentiary hearing. There is no constitutional or statutory right to
                  postconviction counsel and no right to the effective assistance of
                  postconviction counsel in non-capital cases in Nevada.         See Brown v.
                  McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 870 (2014). The argument
                  that the district court created a right to counsel is unpersuasive. The
                  district court may appoint postconviction counsel pursuant to NRS 34.750,
                  but that discretion does not confer a right upon the petitioner.
                  Additionally, Elmajzoub fails to demonstrate how having replacement
                  counsel precluded him from presenting evidence and testimony at the
                  evidentiary hearing. As Elmajzoub did not have a right to counsel, let
                  alone counsel of choice, he fails to demonstrate the district court erred.
                  Furthermore, we conclude that the district court did not abuse its
                  discretion by revoking counsel's pro hac vice admission. See SCR 42(6).
                  Brady
                              Elmajzoub claims that the State withheld exculpatory and/or
                  impeachment evidence, in violation of Brady v. Maryland, 373 U.S. 83
                  (1963). Elmajzoub has the burden of pleading and proving specific facts
                  that demonstrate both good cause and actual prejudice for his failure to
                  present this claim in earlier proceedings. NRS 34.810(1)(b)(2), (3); State v.
                  Huebler, 128 Nev., Adv. Op. 19, 275 P.3d 91, 95 (2012) (recognizing that a



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                  demonstration that the State withheld the evidence and that prejudice
                  ensued will satisfy the good cause and prejudice requirements to overcome
                  the procedural bar). Given Elmajzoub's testimony at trial and the
                  overwhelming evidence of his guilt, we conclude that Elmajzoub fails to
                  demonstrate prejudice, see Mazzan v. Warden. 116 Nev. 48, 66-67, 993
                  P.2d 25, 36-37 (2000) (analyzing the prejudice prong of a Brady claim),
                  and therefore is not entitled to relief. 8
                  Cumulative Error
                                Elmajzoub argues that cumulative error entitles him to relief.
                  To the extent he argues cumulative error as an independent ground for
                  relief, we conclude that he fails to demonstrate good cause and prejudice,
                  or a fundamental miscarriage of justice, sufficient to overcome the
                  procedural default of NRS 34.810(1)(b)(2). To the extent he argues that
                  the cumulative errors of both trial and appellate counsel warrant relief,
                  this court has never determined whether multiple deficiencies in counsel's
                  performance can be considered cumulatively for purposes of the prejudice
                  prong of Strickland. See McConnell v. State, 125 Nev. 243, 259, n.17, 212
                  P.3d 307, 318, n.17 (2009). However, even assuming that counsel's
                  deficiencies may be cumulated, see Harris by and through Ramseyer v.
                  Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (concluding that prejudice may
                  result from cumulative effect of multiple counsel deficiencies); State v.
                  Thiel, 665 N.W.2d 305, 322 (Wis. 2003) (concluding that multiple incidents
                  of deficient performance may be aggregated in determining prejudice

                         8 Wereject the argument that the State conceded any argument or
                  claim raised by Elmajzoub.




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                under Strickland), Elmajzoub has only established that counsel were
                deficient for not challenging the denial of his right to jury sentencing
                pursuant to NRS 200.400(4)(a), so there is nothing to cumulate. We
                conclude that Elmajzoub is not entitled to relief on this ground.
                             Having considered the parties' arguments and concluded that
                no relief is warranted, we
                             ORDER the judgment of the district court AFFIRMED. 9




                                                             Gibbons


                                                                   'u       p

                                                             Pickering



                cc:   Eighth Judicial District Court Dept. 15
                      Attorney General/Carson City
                      Clark County District Attorney
                      Kajioka & Bloomfield
                      Jihad M. Smaili
                      Eighth District Court Clerk




                      9 We   deny Elmajzoub's request for oral argument.




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