IN THE SUPREME COURT OF THE STATE OF NEVADA
SHILOH HUNTER BLUE WEAVER, No. 80306
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
OCT 1 5 2020
ELIZABETH A. BROWN
CLERK OF SUPREHE COURT
BY
DEPUTy CLERK
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Third Judicial District
Court, Lyon County; John Schlegelmilch, Judge. Appellant Shiloh Hunter
Blue Weaver argues that he received ineffective assistance of counsel. The
district court denied the petition after an evidentiary hearing. We affirm.
To demonstrate ineffective assistance of counsel, a petitioner
must 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); Warden v.
Lyons, 100 Nev. 430, 432-33,
683 P.2d 504, 505 (1984) (adopting the test in
Strickland). 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 shown,
Strickland, 466 U.S. at 697. For purposes of the deficiency prong, counsel
is strongly presumed to have provided adequate assistance and exercised
reasonable professional judgment in all significant decisions. Id. at 690.
We defer to the district court's factual findings that are supported by
substantial evidence and not clearly wrong but review its application of the
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law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686,
120 P.3d
1164, 1166 (2005).
Weaver first argues that counsel should have obtained and
presented a psychological risk assessment at the sentencing hearing. He
argues that such a report would have militated in favor of a term of years,
rather than a life sentence. Substantial evidence supports the district
court's finding that counsel made a strategic decision to argue for a less
severe sentence by presenting numerous character witnesses to attest both
to Weaver's good character and that the crime he pleaded guilty to was not
characteristic of his personality. "[C]ounsel's strategic or tactical decisions
[are] virtually unchallengeable absent extraordinary circumstances," Lara
v. State, 120 Nev. 177, 180,
87 P.3d 528, 530 (2004) (internal quotation
marks omitted), which Weaver has not shown. Further, the record shows
that the sentencing court reviewed the presentence investigation report's
risk assessment that Weaver was a low to moderate risk to reoffend. The
psychological risk assessment Weaver argues should have been presented
reached a similar conclusion—albeit with greater nuance. The possibility
of this additional nuance changing the sentencing outcome is unlikely and
insufficient to undermine our confidence in the trial court's sentence. See
Strickland, 466 U.S. at 694 (A reasonable probability is a probability
sufficient to undermine confidence in the outcome."). The district court
therefore did not err in denying this claim.
Weaver next argues that counsel should have required M.
Navalta to attend the sentencing hearing so counsel could cross-examine
her on the allegations contained in her written victim-impact statement.
Relying on Buschauer v. State, 106 Nev. 890,
804 P.2d 1046 (1990), he
argues that her letter alleged prior bad acts, the presentation of which
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violated his rights to due process and confrontation. The letter discussed
Weavees character; the crime, including its reporting to police and
generally abusive context; and the crime's effects on Navalta. The letter,
however, did not refer to specific prior acts beyond the scope of NRS
176.015(3)(b) and thus falls beyond the circumstance where Buschauer held
that due process requires additional protections. 106 Nev. at 894,
804 P.2d
at 1048. Further, Weaver had notice of and an opportunity to rebut
allegations of abuse against him as the parties litigated the allegations—in
greater specificity than set out in Navalta's letter—in connection with the
State's pretrial motion to admit prior bad acts, such that Buschauer's
concerns were not implicated. See id. (providing that additional protections
are warranted to give a defendant notice of allegations of prior bad acts and
an opportunity to rebut them). As a challenge on this basis lacked merit,
Weaver did not show deficient performance or prejudice. Insofar as Weaver
argues that an appellate claim relying on Buschauer should have been
raised, such a claim would have failed, and Weaver has not shown deficient
performance or prejudice in such an appellate omission. The district court
therefore did not err in denying this claim.
Weaver next argues that counsel should have advised him of his
right to appeal and filed an appeal. He argues that counsel should have
raised a Buschauer claim and argued that his sentence rested solely on
impalpable evidence. The guilty plea agreement advised Weaver of the
limited right to appeal. See Davis v. State, 115 Nev. 17, 19,
974 P.2d 658,
659 (1999). Counsel testified that he thoroughly explained the guilty plea
agreement to Weaver, and Weaver testified that he never asked counsel
about an appeal. Weaver's proposed appellate claims lacked merit, as the
victini-impact statement did not violate Buschauer and there is no
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indication the district court relied on any impalpable or highly suspect
evidence in sentencing Weaver. Cf. Silks v. State, 92 Nev. 91, 94,
545 P.2d
1159, 1161 (1976). The record further shows that Weaver received a
sentence consistent with his plea agreement, did not reserve any specific
issues for appeal, indicate a desire for an appeal within the filing period, or
seek relief from the plea agreement before sentencing. See Toston v. State,
127 Nev. 971, 979-80,
267 P.3d 795, 801 (2011) (discussing circumstances
where counsel knew or should have known a defendant wanted to appeal).
Accordingly, counsel did not perform deficiently in not advising Weaver
about his appellate rights or in not filing an appeal, see
id. at 977, 979,
267
P.3d 795, 799, 801 (2011) (discussing counsel's duties to inform a defendant
about the right to appeal and to file an appeal in a guilty plea context), and
Weaver was not prejudiced by the omission of meritless claims. The district
court therefore did not err in denying this claim.
Having considered Weaver's claims and concluded that they do
not warrant relief, we
ORDER the judgment of the district court AFFIRMED.
Aloi_ $G4-0 J. LiZt/At) J
Stiglich Silver
cc: Hon. John Schlegelmilch, District Judge
Karla K. Butko
Attorney General/Carson City
Lyon County District Attorney
Third District Court Clerk
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