IN THE SUPREME COURT OF THE STATE OF NEVADA
LEE REED, No. 79553
Appellant,
V S.
THE STATE OF NEVADA,
FILED
Respondent.
ELIDN3ETH
CLE 6U
BY
DEPUTY CLERK
ORDER OF AFFIRMANCE
This is an appeal frorn a district court order denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; Cristina D. Silva, Judge. The district court denied
appellant Lee Reed's postconviction habeas petition without an evidentiary
hearing. We affirmed in part, reversed in part, and remanded, concluding
that the district court should have held an evidentiary hearing on Reed's
claim that trial counsel should have objected to the district court's failure
to swear the jury venire. After holding an evidentiary hearing, the district
court again denied relief on remand. We affirm.
To demonstrate ineffective assistance of trial counsel, a
petitioner rnust show that counsel's performance was deficient in that it fell
below an objective standard of reasonableness and that prejudice resulted
in that there was a reasonable probability of a different outcome absent
counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88 (1984);
Wa.rclen v. Lyons,
100 Nev. 430, 432-33,
683 P.2d 504, 505 (1984) (adopting
the test in Strickla.nd). 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), and both components of the inquiry must be
- 314 6r
shown, Strickland, 466 U.S. at 697. We defer to the district coures factual
findings that are supported by substantial evidence and not clearly wrong,
but review its application of the law to those facts de novo. Lader v. Warden,
121 Nev. 682, 686,
120 P.3d 1164, 1166 (2005).
Reed argues that trial counsel should have objected when the
trial court failed to administer the jury oath required by NRS 16.030(5),
which constitutes structural error pursuant 63 Barral v. State, 131 Nev. 520,
525,
353 P.3d 1197, 1200 (2015). While structural errors generally warrant
automatic reversal when the issue was preserved at trial and raised on
direct appeal, a petitioner raising an ineffective-assistance-of-counsel claim
based on trial counsel's failure to preserve a structural error must
demonstrate prejudice. Weaver v. Massachusetts,
137 S. Ct. 1899, 1910
(2017); see also
id. at 1911 (analyzing whether prejudice was established by
showing either a reasonable probability of a different outcome or
fundamental unfairness). Substantial evidence supports the district court's
findings that there were no abnormalities in the juror selection process; that
both parties thoroughly examined the prospective jurors, who were
repeatedly asked if they could be fair and impartial; and that trial counsel
testified that, had the oath been administered, he would have questioned
the prospective jurors the same way and selected the same jurors. Further,
Reed does not allege any evidence of bias or partiality regarding any juror
who was empaneled. Cf. Wesley v. State,
112 Nev. 503, 511,
916 P.2d 793,
799 (1996) (concluding that defendant is not entitled to relief from
limitation of voir dire if impaneled jury is impartial). Accordingly, Reed has
shown neither a reasonable probability of a different outcome based on
counsel's omission nor fundamental unfairness. See Weaver,
137 S. Ct. at
1913 (finding no fundamental unfairness where there was "no suggestion
2
that any juror lied during voir dire; no suggestion of misbehavior by the
prosecutor, judge, or any other party; and no suggestion that any of the
participants failed to approach their duties with the neutrality and serious
purpose that our system demande). The district court therefore did not
err in denying this claim.
Reed next argues that appellate counsel should have challenged
the trial court's otnission of the jury oath. We remanded to the district court
solely for an evidentiary hearing on Reed's claim that trial counsel should
have objected. Reed u. State, Docket No. 69894 (Order Affirming in Part,
Reversing in Part and Remanding, November 15, 2017). Reed's underlying
petition did not include a challenge to appellate counsel's effectiveness on
this issue, and our remand thus cannot be interpreted to open the door to
this new claim. Where an appellate court remands for consideration of a
specific issue, the district court may not consider new issues raised for the
first time on remand. 5 Am. Jur. 2d Appellate Review § 687; see Stacy v.
Colvin, 825 F.3d 563, 568 (9th Cir. 2016) (providing that a district court
may not vary from the appellate court's mandate on remand); State Eng'r u.
Eureka Cnty.,
133 Nev. 557, 559,
402 P.3d 1249, 1251 (2017) (citing Stacy
and providing that a district court must comply with the appellate court's
mandate on remand). Deviation from the remand's rnandate is error. Stacy,
825 F.3d at 568. Reed's challenge to appellate counsel's representation on
this issue was outside the scope of the remand. The district court therefore
reached the correct outcome when it denied Reed's claim as untimely and
procedurally barred. Cf. Wyatt v. State,
86 Nev. 294, 298,
468 P.2d 338, 341
1 Weaver further observed that the trial court was deprived of the
opportunity to cure its error when a petitioner first challenges a courtroom
closure in an ineffective-assistance claim. 137 S. Ct. at 1912.
3
(1970) ("If a judgment or order of a trial court reaches the right result,
although it is based on an incorrect ground, the judgment or order will be
affirmed on appeal.").
Having considered Reed's contentions and concluded that they
do not warrant relief, we
ORDER the judgment of the district court AFFIRMED.
Parraguirre
, J.
Hardesty
Cadish
cc: Hon. Cristina D. Silva, District Judge
Gaffney Law
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OP
NEVADA
4
,O) 047A cgiDa.
