Smith (Michael) v. State

Opinion

are not belied by the record and, if true, would entitle him to relief. Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984).

First, Smith argues that the district court erred by not conducting an evidentiary hearing and denying his claim that, prior to his decision to represent himself, counsel was ineffective for failing to move to suppress a photographic lineup. The district court denied this claim because Smith could have moved to suppress the lineup once he began representing himself and he was unable to fault prior counsel for his own errors. Smith correctly asserts that because he assumed representation the day before trial, any attempt to suppress the lineup would have been untimely and the district court would have been within its discretion to deny it on that basis. See EDCR 3.20(a); EDCR 3.28. However, because Smith failed to demonstrate that the outcome at trial would have been different even if the photographic lineup had been suppressed, we conclude that the district court did not err by denying this claim without conducting an evidentiary hearing. See Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970) (affirming a decision of the district court if it reaches the right result).

Second, Smith argues that the district court erred by denying his claim that appellate counsel was ineffective for failing to successfully argue that the State violated Brady v. Maryland, 373 U.S. 83 (1963), and that the violation caused him prejudice. The district court denied this claim because appellate counsel argued that the State violated Brady and addressed prejudice and Smith failed to demonstrate the manner that counsel should have argued the claim which would have had a reasonable probability of success on appeal. We conclude that Smith failed to demonstrate that district court erred by denying this claim. See Mazzan V.

SUPREME COURT OF NEVADA

2

(o) 1947A

• 1,777,14;77

Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000) (summarizing the components necessary to show a Brady violation). Third, Smith argues that the district court erred by denying his claim that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness on direct appeal. The district court denied this claim because raising trial counsel's ineffectiveness on direct appeal would have been inappropriate. See Feazell v. State, 111 Nev. 1446, 1449, 906 P.2d 727, 729 (1995). We conclude that the district court did not err by denying this claim. Having considered Smith's contentions and concluded that they lack merit, we ORDER the judgment of the district court AFFIRMED.

J.

Douglas Saitta

cc: Hon. Doug Smith, District Judge Law Offices of Martin Hart, LLC Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk