Coleman (Melvin) v. State

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 argues that his trial counsel was ineffective for failing to move to dismiss his case based on the excessive pre- indictment delay and violation of his right to a speedy trial.' Appellant fails to demonstrate that actual, nonspeculative prejudice resulted from the delay or that the State intentionally delayed filing a complaint to gain a tactical advantage, see Wyman, 125 Nev. at 600-01, 217 P.3d at 578; see also United States v. Gouveia, 467 U.S. 180, 192 (1984), therefore appellant fails to demonstrate that trial counsel's performance was deficient or that he was prejudiced. 2 Accordingly, the district court did not err in denying this claim. Second, appellant argues that his trial counsel was ineffective for failing to object to numerous instances of prosecutorial misconduct committed in the State's closing argument. Appellant fails to demonstrate deficiency or prejudice. The district court found that trial counsel made a conscious, strategic decision not to object to some of the comments so as not to call further attention to the comments. The district court further found that an objection to any of the comments, some of which the district court found were not improper, would not have altered the result of the

We note that any delay between the commission of an offense and an indictment is generally limited by statutes of limitations. United States v. Lovasco, 431 U.S. 783, 789 (1977); Wyman v. State, 125 Nev. 592, 600 n.³, 217 P.3d 572, 578 n.3 (2009).

2 To the extent that appellant urges us to re-evaluate the standard set forth in Wyman, we decline to do so.

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tria1. 3 The district court's factual findings are supported by substantial evidence, and we agree with the district court's determinations and conclude that it did not err by denying these claims. See Bussard v. Lockhart, 32 F.3d 322, 324 (8th Cir. 1994) (observing that decision whether to object to prosecutorial misconduct is a strategic one and "must take into account the possibility that the court will overrule it and that the objection will either antagonize the jury or underscore the prosecutor's words in their minds"); Epps v. State, 901 F.2d 1481, 1483 (8th Cir. 1990) (explaining that prosecutor's comments that were not objectionable could not be a basis for an ineffective-assistance claim based on counsel's failure to object). Having considered appellant's contentions and concluded that they lack merit, we ORDER the judgment of the district court AFFIRMED.

J.

cc: Hon. Elliott A. Sattler, District Judge Karla K. l3utko Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk

Footnotes

[3] Wenote our decision in appellant's appeal, Coleman, Jr. v. State, Docket No. 54622 (Order of Affirmance, April 8, 2010), in which we concluded that "significant independent evidence of guilt—including the victim's testimony and DNA evidence—exists to support appellant's conviction." SUPREME COURT OF NEVADA 3 (0) 1947A SUPREME COURT OF NEVADA 4 (0) 1947A