Smith (Larry) v. State

88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland). 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 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). Appellant claimed that counsel was ineffective for failing to file a pretrial motion to suppress the victim's one-on-one identification of appellant as unnecessarily suggestive. Appellant failed to demonstrate deficiency or prejudice. Appellant has not disputed that he was the person with whom the victim initially spoke and later confronted about the theft of a ticket. Counsel was not objectively unreasonable in not moving to suppress the identification where identity was not an issue in the case. Further, even if the one-on-one identification were unnecessarily suggestive, appellant failed to demonstrate that the motion would have been successful, because the identification was nevertheless reliable where the victim pointed to appellant almost immediately upon exiting the restroom where the theft occurred, the victim was "100%" certain in the subsequent one-on-one identification, and there was only approximately one hour between the theft and the one-on-one identification. See Gehrke v. State, 96 Nev. 581, 583-84, 613 P.2d 1028, 1029-30 (1980) (setting forth the test for admitting pretrial identifications at trial). Moreover, even had the victim's identification of appellant been suppressed, appellant demonstrated no reasonable probability of a different outcome where appellant's brother testified to observing him take the victim's property.

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We therefore conclude that the district court did not err in denying the petition. Accordingly, we ORDER the judgment of the district court AFFIRMED. 2

J.

CkU esrsr , J. Parra

Saitta

cc: Hon. Kathleen E. Delaney, District Judge Larry Dwayne Smith Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

2The district court did not abuse its discretion in declining to appoint post-conviction counsel. See NRS 34.750.

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