Brown v. McDaniel

• Decision Date: 07 August 2014
• Docket Number: No. 60065.,60065.
• Citation: 130 Nev. Adv. Op. 60,331 P.3d 867
• Parties: Christopher BROWN, Appellant, v. E.K. McDANIEL, Warden, Respondent.
• Court: Nevada Supreme Court

331 P.3d 867
130 Nev. Adv. Op. 60

Christopher BROWN, Appellant,
v.
E.K. McDANIEL, Warden, Respondent.

No. 60065.

Supreme Court of Nevada.

Aug. 7, 2014.

[331 P.3d 868]

Rene Valladares, Federal Public Defender, and Ryan Neil Norwood and Megan C. Hoffman, Assistant Federal Public Defenders, Las Vegas, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

Steven S. Owens, Las Vegas, for Amicus Curiae Nevada District Attorneys Association.

[331 P.3d 869]

Robert Arroyo, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.

Catherine Cortez Masto, Attorney General, and Jeffrey M. Conner and Michael J. Bongard, Deputy Attorneys General, Carson City, for Amicus Curiae Nevada Attorney General.

BEFORE THE COURT EN BANC.

OPINION
By the Court, HARDESTY, J.:

Appellant Christopher Brown appeals from the district court's dismissal of his untimely and successive post-conviction petition for a writ of habeas corpus. At issue is whether, in light of the United States Supreme Court's recent decision in Martinez v. Ryan, 566 U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), the ineffective assistance of post-conviction counsel may constitute good cause under NRS 34.726(1) and NRS 34.810 to allow a noncapital petitioner to file an untimely and successive post-conviction petition for a writ of habeas corpus. We conclude that Martinez does not alter our prior decisions that a petitioner has no constitutional right to post-conviction counsel and that post-conviction counsel's performance does not constitute good cause to excuse the procedural bars under NRS 34.726(1) or NRS 34.810 unless the appointment of that counsel was mandated by statute. E.g., Crump v. Warden, 113 Nev. 293, 302–03, 934 P.2d 247, 253 (1997); McKague v. Warden, 112 Nev. 159, 163–65, 912 P.2d 255, 257–58 (1996). Because Brown failed to overcome the procedural bars, we affirm the decision of the district court to dismiss the post-conviction petition for a writ of habeas corpus.

FACTS AND PROCEDURAL HISTORY

Brown was convicted of first-degree murder with the use of a deadly weapon and was sentenced to two consecutive terms of 20 to 50 years imprisonment. This court affirmed his judgment of conviction on appeal in January 2006. Brown v. State, Docket No. 45026, 122 Nev. 1654, 178 P.3d 738 (Order of Affirmance, January 11, 2006). The remittitur issued on February 7, 2006. Brown then filed a timely post-conviction petition for a writ of habeas corpus. The district court appointed counsel to represent him, and counsel filed a supplemental petition. The district court denied Brown's petition on the merits, and this court affirmed the district court's order. Brown v. State, Docket No. 51847 (Order of Affirmance, August 10, 2009).

On June 10, 2010, Brown filed a second post-conviction petition for a writ of habeas corpus, alleging claims of ineffective assistance of trial and appellate counsel. Brown conceded that his petition was untimely and successive but argued that he had good cause to excuse the procedural bars because his first post-conviction counsel had provided ineffective assistance by failing to present these claims in his first post-conviction petition, and because he was actually innocent and it would be a miscarriage of justice if his claims were procedurally barred. Brown filed a notice of supplemental authority alerting the district court to a then-pending case before the United States Supreme Court, Martinez v. Ryan, 566 U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). The district court dismissed Brown's petition as procedurally barred pursuant to NRS 34.726(1) and NRS 34.810 because the petition was untimely and successive. The district court found that Brown failed to overcome the procedural bars because ineffective assistance of post-conviction counsel did not constitute cause to excuse the procedural bars and Brown did not demonstrate actual innocence.

DISCUSSION

Brown challenges the district court's determination that his claims were barred under NRS 34.726(1) and NRS 34.810. Specifically, he claims that he established “good cause” to excuse these procedural bars because his first post-conviction counsel was ineffective for failing to raise or preserve meritorious claims in his initial state post-conviction proceeding. He relies on the Supreme Court's decision in Martinez.

[331 P.3d 870]

The applicable procedural bars

Nevada's statutory post-conviction scheme places procedural limits on the filing of a post-conviction petition for a writ of habeas corpus. NRS 34.726(1) provides for dismissal of a post-conviction habeas petition if it is not filed within one year after this court issues its remittitur from a timely direct appeal from the judgment of conviction or, if no appeal has been prosecuted, within one year from the entry of the judgment of conviction. See Dickerson v. State, 114 Nev. 1084, 1087, 967 P.2d 1132, 1133–34 (1998). NRS 34.810(1)(b) provides for dismissal of claims where the petitioner's conviction was the result of a trial and the claims could have been raised earlier. NRS 34.810(2) provides for dismissal of a second or successive petition if the grounds for the petition were already raised and considered on the merits in a prior petition or if the grounds could have been raised in a prior petition.

To overcome these statutory procedural bars, a petitioner must demonstrate “good cause” for the default and actual prejudice. NRS 34.726(1); NRS 34.810(3). We have defined “good cause” as a “substantial reason ... that affords a legal excuse.” Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003) (internal quotations omitted). To show good cause, a petitioner must demonstrate that an “impediment external to the defense” prevented him from complying with the procedural rules. Passanisi v. Dir., Nev. Dep't of Prisons, 105 Nev. 63, 66, 769 P.2d 72, 74 (1989) (citing Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)); see also Pellegrini v. State, 117 Nev. 860, 886, 34 P.3d 519, 537 (2001).

Brown filed his second post-conviction petition more than four years after the issuance of remittitur on direct appeal from the judgment of conviction. His first petition was denied on the merits, and the claims that he raised in his second petition were, or could have been, raised in his first petition. Thus, as Brown concedes, his second petition is barred as untimely and successive unless he can demonstrate good cause for the default and actual prejudice. SeeNRS 34.726(1); NRS 34.810(2), (3). He asserts that the ineffective assistance of his prior post-conviction counsel provides cause and prejudice to excuse his failure to comply with Nevada's procedural rules governing post-conviction habeas petitions.

Our case law clearly forecloses Brown's contention. We have consistently held that the ineffective assistance of post-conviction counsel in a noncapital case may not constitute “good cause” to excuse procedural defaults. See McKague, 112 Nev. at 163–65, 912 P.2d at 258; cf. Crump, 113 Nev. at 303 & n. 5, 934 P.2d at 253 & n. 5; Mazzan v. Warden, 112 Nev. 838, 841, 921 P.2d 920, 921–22 (1996). This is because there is no constitutional or statutory right to the assistance of counsel in noncapital post-conviction proceedings, and “[w]here there is no right to counsel there can be no deprivation of effective assistance of counsel.” ¹McKague, 112 Nev. at 164–65, 912 P.2d at 258.

Martinez v. Ryan does not address state procedural bars

Brown argues that Martinez changes this court's jurisprudence holding that ineffective assistance of post-conviction counsel provides good cause to excuse a state procedural bar only when appointment of that counsel was mandated by statute. We disagree.²

Martinez, an Arizona state prisoner, filed a petition for a writ of habeas corpus in federal

[331 P.3d 871]

court raising claims of ineffective assistance of trial counsel. 566 U.S. at ––––, 132 S.Ct. at 1314. Because those claims had been denied in state court based on a state procedural rule (they could have been raised in a prior state collateral proceeding), id. at ––––, 132 S.Ct. at 1314, federal court review of their merits normally would have been precluded by the doctrine of procedural default, id. at ––––, 132 S.Ct. at 1316. Martinez did not dispute that his claims had been rejected in state court based on an independent and adequate state ground but instead relied on an exception to the procedural default doctrine by which a state “prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.” Id. at ––––, 132 S.Ct. at 1316. In particular, he argued that he had good cause for the procedural default because counsel in his first state collateral proceeding was ineffective for failing to raise the ineffective-assistance-of-trial-counsel claims in that proceeding. Id. at ––––, 132 S.Ct. at 1314–15.

The Supreme Court in Martinez thus considered “whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default in a federal habeas proceeding.” Id. at ––––, 132 S.Ct. at 1315 (emphasis added). The Supreme Court answered that question in the affirmative where state law provides that ineffective-assistance-of-trial-counsel claims must be raised in a collateral proceeding:

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Id. at ––––, 132 S.Ct. at 1320.

The Supreme Court, however, expressly declined in Martinez to...