Ayala v. State, 011521 NVSC, 79361

• Docket Nº: 79361
• Party Name: OMAR J. AYALA, Appellant, v. THE STATE OF NEVADA, Respondent.
• Judge Panel: Parraguirre, Stiglich, Silver, Judges Hon. Joseph Hardy, Jr., District Judge
• Case Date: January 15, 2021
• Court: Supreme Court of Nevada

OMAR J. AYALA, Appellant,

v.

THE STATE OF NEVADA, Respondent.

No. 79361

Supreme Court of Nevada

January 15, 2021

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

This is an appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Joseph Hardy, Jr., Judge. Appellant Omar J. Ayala argues that the district court erred in denying his petition as procedurally barred. We affirm.

Ayala filed the petition six years after remittitur issued on his direct appeal. Ayala v. State, Docket No. 55933 (Order of Affirmance, June 20, 2012). Thus, his petition was untimely filed. See NRS 34.726(1). The petition was also successive because he had previously litigated a postconviction petition for a writ of habeas corpus in which he asserted a similar claim for relief. See NRS 34.810(1)(b)(2); NRS 34.810(2); Ayala v. State, Docket No. 69877 (Order of Affirmance, May 9, 2017). Ayala's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3). Good cause may be demonstrated by a showing that the factual or legal basis for a claim was not reasonably available to be raised in a timely petition. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). Further, as the State specifically pleaded laches, Ayala was required to overcome the presumption of prejudice to the State. See NRS 34.800(2).

Ayala argues that the Supreme Court's recent decision in McCoy v. Louisiana, 138 S.Ct. 1500 (2018), provides good cause. He is mistaken, as McCoy is distinguishable. McCoy holds that an attorney may not concede a defendant's guilt where the defendant expressly objects or insists on maintaining his or her innocence. 138 S.Ct. at 1509. McCoy differentiated a defendant who opposed counsel's concession from a defendant who '"was generally unresponsive' during discussions of trial strategy, and 'never verbally approved or protested'" the concession. Id. (quoting Florida v. Nixon, 543 U.S. 175, 181 (2004)). Although McCoy noted that the decision to concede was similar in nature to other decisions reserved to a defendant, like "whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal," id. at 1508, McCoy does not require consent or a canvass. It only requires that counsel not pursue a concession strategy over a...