Affirmation of Prejudice Requirement Under Strickland for Structural Jury-Selection Errors

Introduction

In Elmajzoub (Said) v. State, No. 87053 (Nev. Apr. 17, 2025), the Supreme Court of Nevada considered a postconviction petition for a writ of habeas corpus filed by Said Elmajzoub. Elmajzoub, convicted of battery with intent to commit sexual assault resulting in substantial bodily harm, attempted sexual assault, and first-degree kidnapping, challenged the lawfulness of his penalty-phase retrial and the effectiveness of both his trial and appellate counsel. Key issues included:

Whether counsel was ineffective for failing to object to the omission of the voir dire oath required by NRS 16.030(5) and to raise that error on direct appeal.
Whether prosecutorial misconduct occurred when a victim impact witness referred to Elmajzoub as an “animal,” and whether counsel should have objected or appealed.
Whether trial counsel failed to investigate and present mitigating evidence of Elmajzoub’s good behavior in prison.
Whether counsel should have challenged the district court’s refusal to give capital-sentencing style jury instructions at the penalty retrial.
Additional pro se claims, including double jeopardy, vagueness of NRS 200.400, and jurisdiction to modify sentence.
Whether the aggregate sentence of life without parole constituted cruel and unusual punishment under the Eighth Amendment.
Whether cumulative counsel errors rendered the penalty retrial fundamentally unfair.

Summary of the Judgment

The Nevada Supreme Court affirmed the district court’s denial of habeas relief on all grounds. It held that:

The failure to administer the oath under NRS 16.030(5) is a structural error but, in an ineffective-assistance context, the petitioner must still demonstrate prejudice or fundamental unfairness under Strickland v. Washington.
No prosecutorial misconduct occurred when a victim impact witness called the defendant an “animal,” because the remark was unprompted and outside the State’s control; the rhetorical slide in closing argument was within proper sentencing argument.
Trial counsel reasonably presented available mitigation—character witnesses, letters, prison records—and any untimeliness in offering documentary evidence caused no prejudice.
The district court properly refused capital-style penalty instructions in a non-capital case; those instructions would have misled the jury regarding applicable law.
Pro se claims that were previously litigated or not adequately briefed were barred by the law-of-the-case doctrine or procedural default.
The aggregate sentence did not violate the Eighth Amendment, as previously upheld, given the gravity of the offenses.
There was no cumulative prejudice from multiple counsel deficiencies.

Analysis

Precedents Cited

Strickland v. Washington, 466 U.S. 668 (1984): Established the two-prong test (deficient performance and prejudice) for ineffective assistance of counsel.
Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984): Adopted the Strickland test in Nevada.
Kirksey v. State, 112 Nev. 980, 923 P.2d 1102 (1996): Applied Strickland to appellate counsel claims.
Weaver v. Massachusetts, 582 U.S. 286 (2017): Clarified structural errors do not automatically require reversal in every context and preserved a prejudice requirement in ineffective assistance claims.
Barral v. State, 131 Nev. 520, 353 P.3d 1197 (2015): Classified certain NRS 16.030(5) violations as structural in direct-appeal context.
Johnson v. State, 133 Nev. 571, 402 P.3d 1266 (2017): Quoted Strickland’s definition of “reasonable probability.”
Means v. State, 120 Nev. 1001, 103 P.3d 25 (2004): Requires factual claims in habeas to be proved by a preponderance.
Lader v. Warden, 121 Nev. 682, 120 P.3d 1164 (2005): Reviews de novo application of law, deferring to factual findings supported by substantial evidence.
Jeremias v. State, 134 Nev. 46, 412 P.3d 43 (2018): Addresses plain‐error review for unpreserved issues.
Other sentencing cases: Hall v. State, 91 Nev. 314 (1975); Mason v. State, 118 Nev. 554 (2002); Lockett v. Ohio, 438 U.S. 586 (1978).

Legal Reasoning

1. Structural Error vs. Prejudice
Although the district court’s failure to administer the statutory oath under NRS 16.030(5) is a structural error in direct appeal, Weaver instructs that in an ineffective-assistance claim counsel’s omission of a structural error still demands a showing of prejudice or fundamental unfairness under Strickland. Here, Elmajzoub could not identify any venire bias or answers that would have differed, so prejudice was lacking.

2. Prosecutorial Misconduct
Victim impact statements enjoy broad latitude. An unprompted “animal” remark by the victim’s son was not solicited by the prosecutor and was not used in argument; thus, no misconduct. A rhetorical slide in closing argument, asking “What kind of person does it take to do that?”, fell within proper character‐of‐defendant argument.

3. Mitigation Evidence
Counsel investigated and presented character witnesses, letters, certificates of good conduct, and allowed Elmajzoub’s own allocution regarding prison achievements. Even if offered slightly late, the evidence was admitted without prejudice, and it could not offset the extreme brutality of the offenses.

4. Penalty Phase Instructions
Instructions derived from capital-sentencing statutes and rules would have misled the jury in a noncapital sentencing context. Absent legislative mandate, the district court reasonably exercised discretion.

5. Law-of-the-Case and Procedural Bar
Issues previously decided on direct appeal or inadequately briefed in the petition were barred under the law-of-the-case doctrine and appellate briefing rules.

6. Eighth Amendment Challenge
The life-without-parole sentence was upheld on original appeal; no intervening change in law or circumstances warranted revisiting disproportionality.

7. Cumulative Error
Even cumulating two minor deficiencies does not create a reasonable probability of a different outcome, nor a fundamentally unfair proceeding.

Impact

Clarifies that even clearly structural jury‐selection errors require showing of actual prejudice when raised in an ineffective‐assistance claim.
Reinforces the broad latitude of victim impact testimony and limits on prosecutorial control over spontaneous witness remarks.
Confirms that capital‐sentencing procedures are not automatically imported into noncapital jury sentencing retrials.
Emphasizes careful delineation between structural error in direct appeals and prejudice requirement in habeas/IAC context.
Guides counsel to object timely to voir dire oath omissions but to gather specific evidence of juror bias to prove prejudice.

Complex Concepts Simplified

Structural Error: An error affecting the framework of the trial (e.g., jury selection), which in direct appeal normally requires automatic reversal. In an IAC claim, structural error still demands proof of prejudice or fundamental unfairness.
Strickland Test: A two-prong standard for ineffective assistance:
1. Deficiency: Counsel’s performance fell below an objective standard of reasonableness.
2. Prejudice: There is a reasonable probability that, but for counsel’s errors, the outcome would have been different.
NRS 16.030(5) Oath: A statutory requirement that potential jurors swear to answer questions truthfully during voir dire to protect the integrity of jury selection.
Victim Impact Statement: Permitted testimony at sentencing regarding the crime’s impact on the victim; includes broad emotional and character reflections.
Law-of-the-Case Doctrine: Prevents relitigation of issues already decided on direct appeal when facts remain substantially the same.

Conclusion

Elmajzoub (Said) v. State reaffirms the central premise of Strickland: even structural errors must be shown to cause prejudice or fundamental unfairness when claimed as ineffective assistance of counsel. The decision underscores counsel’s obligation to identify procedural missteps—such as omitting the oath—but cautions petitioners to support such claims with concrete evidence of juror bias. The ruling also clarifies boundaries around victim impact testimony, sentencing instructions in noncapital retrials, and the limits of cumulative error. Overall, the case serves as a guide for future litigants and courts in distinguishing between structural errors warranting direct‐appeal relief and those requiring a showing of prejudice in postconviction proceedings.