First, Orellana contended that trial counsel was ineffective for

failing to request an independent psychological evaluation of the victim.

Because Orellana failed to show that such an evaluation would have

resulted in a different outcome at trial, we conclude that the district court

did not err by denying this claim. Furthermore, Orellana was not entitled

to an evidentiary hearing on this claim because, even if he established the

deficiency of counsel, he failed to allege specific facts satisfying his burden

of proving resulting prejudice.' See Strickland v. Washington, 466 U.S. 668, 687-88 (1984) (explaining that petitioner must show both deficient

performance and resulting prejudice in order to obtain relief).

Second, Orellana contended that trial counsel was ineffective

for failing to object to the State's comments on Orellana's constitutional

right to remain silent and appellate counsel was ineffective for failing to

raise this issue on appeal. Our review of the record reveals that trial

counsel did object to both comments and thoroughly clarified the earlier

comment made by the State during voir dire. Therefore, we conclude that

trial counsel's performance was not deficient. We also conclude that

Orellana did not satisfy his burden of proving that appellate counsel's

failure to include one of the two comments in his appellate brief resulted

in prejudice. See Foster v. State, 121 Nev. 165, 170, 111 P.3d 1083, 1087

'We also note that Orellana failed to allege specific factual

allegations supporting his other claims of ineffective assistance of counsel

that would, if true, entitle him to relief. Therefore, Orellana was not

entitled to an evidentiary hearing on these claims. SUPREME COURT

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(2005) (explaining that the court need not consider both prongs of the

Strickland test if the petitioner makes an insufficient showing on either

prong). Accordingly, we conclude that the district court did not err by

denying this claim.

Third, Orellana contended that trial counsel was ineffective

for attempting to quantify the reasonable doubt instruction. We conclude

that counsel's comment did not lower the State's burden of proof and

Orellana has failed to satisfy his burden of proving resulting prejudice.

Accordingly, the district court did not err by denying this claim.

Fourth, Orellana contended that trial counsel was ineffective

for failing to make a Confrontation Clause objection to a detective's

reference to the out-of-court statement of the victim's parents that the

victim was scared to return home and appellate counsel was ineffective for

failing to raise this issue on appeal. Orellana also contended that

appellate counsel was ineffective for failing to raise the same claim with

respect to the victim's aunt's testimony about the victim's out-of-court

statements. The Confrontation Clause prohibits the admission of

testimonial statements of witnesses who are unavailable and not subject

to cross-examination. See Vega v. State, 126 Nev. „ 236 P.3d 632, 637 (2010); see also California v. Green, 399 U.S. 149, 161 (1970) ("[W]e

note that none of our decisions interpreting the Confrontation Clause

requires excluding the out-of-court statements of a witness who is

available and testifying at trial."). The victim's parents and the victim

herself all testified and were cross-examined by trial counsel. Accordingly, SUPREME COURT

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t`1-1.1Q17., 45PlatV,WFAMPM141,4k3araw.--3,67---;•Y..-.2.7,2 ., ' '

we conclude that trial and appellate counsel's performance was not

deficient in this regard and the district court did not err by denying this

claim.

Having considered Orellana's contentions and concluded that

he is not entitled to relief, we

ORDER the judgment of the district court AFFIRMED.

414_,A,

J.

Hardesty

arraguirre

cc: Hon. Michael Villani, District Judge

Christopher R. Oram

Attorney General/Carson City

Clark County District Attorney

Eighth District Court Clerk SUPREME COURT

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