Silva (Art) v. State

Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). Here, the district court conducted an evidentiary hearing, heard testimony from Silva, several witnesses on his behalf, and his former defense counsel, Tammy M. Riggs, and determined that Riggs provided "effective assistance" at sentencing and that Silva "failed to prove prejudice, that is, that the Court would have sentenced Petitioner differently had Ms. Riggs done those things Petitioner alleges she should have." See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); see also Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Kirksey v. State, 112 Nev. 980, 987, 923 P.2d 1102, 1107 (1996). Although the district court's order denying the petition did not specifically address counsel's failure to object to statements made by the prosecutor at the sentencing hearing, Silva failed to demonstrate prejudice because this court determined in resolving his direct appeal that he was not entitled to relief based on prosecutorial misconduct. See Silva v. State, Docket No. 53680 (Order of Affirmance, August 25, 2009). We conclude that the district court did not err by rejecting Silva's ineffective-assistance claims. Second, Silva contends that his right to due process and a fair hearing were violated by the district court's overruling of his objection to Riggs' testimony regarding his counseling records and her tactical decision not to offer them for consideration at the sentencing hearing. According to Riggs, the records indicated, among other things, that Silva had an anger problem. Silva's post-conviction counsel objected to Riggs' testimony on hearsay grounds and informed the district court that she had "never seen these records" or "heard of an anger issue." In overruling the objection, the district court noted that counsel would be allowed to cross-examine Riggs about the counseling records, which she did. On appeal, Silva

SUPREME COURT OF NEVADA

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claims that evidence pertaining to his counseling records was suspect and should be redacted from the record. We disagree. The discretion to admit testimony at an evidentiary hearing on a post-conviction habeas petition lies with the district court. See generally Brown v. State, 110 Nev. 846, 852, 877 P.2d 1071, 1075 (1994). Here, the subject of the counseling records arose during the State's questioning of Riggs about her tactical decisions in preparing for Silva's sentencing hearing. Silva fails to provide any persuasive argument or legal authority in support of his claim for relief, and we conclude that the district court did not abuse its discretion by allowing Riggs' testimony. Accordingly, we ORDER the judgment of the district court AFFIRMED. 2

' J. Hardesty

P C0.4.31. Parraguirre

cc: Hon. Patrick Flanagan, District Judge Karla K. Butko Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk

Footnotes

[2] We note that although Silva's counsel certified that the fast track statement complies with the requirements of NRAP 32(a)(5) because it was prepared using 14-point Times New Roman font, the font in the brief appears smaller than represented. We remind Silva's counsel that misrepresentations in the certificate of compliance can be a basis for the imposition of sanctions. See NRAP 3C(h)(3), (n); NRAP 28.2; NRAP 32(e). SUPREME COURT OF NEVADA 3 (0) 1947A Zji7SfALS7.4EFF:"TA ,

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