Flores v. Williams, 011521 NVSC, 80245

• Docket Nº: 80245, 80246
• Party Name: JESUS IGNASIO FLORES, Appellant, v. BRIAN E. WILLIAMS, SR., WARDEN; JAMES DZURENDA; AND AARON D. FORD, Respondents. JESUS IGNASIO FLORES, Appellant, v. BRIAN E. WILLIAMS, SR., WARDEN; JAMES DZURENDA; AND AARON D. FORD, Respondents.
• Judge Panel: Parraguirre, J., Stiglich, J., Silver, J. Hon. Susan Johnson, District Judge
• Case Date: January 15, 2021
• Court: Supreme Court of Nevada

JESUS IGNASIO FLORES, Appellant,

v.

BRIAN E. WILLIAMS, SR., WARDEN; JAMES DZURENDA; AND AARON D. FORD, Respondents.

JESUS IGNASIO FLORES, Appellant,

v.

BRIAN E. WILLIAMS, SR., WARDEN; JAMES DZURENDA; AND AARON D. FORD, Respondents.

Nos. 80245, 80246

Supreme Court of Nevada

January 15, 2021

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

These are appeals from a district court order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Susan Johnson, Judge.

Appellant filed his petition on May 13, 2019, more than seven years after this court issued its remittitur on direct appeal on October 11, 2011. See Flores v. State, Docket No. 56940 (Order of Affirmance, September 14, 2011). Thus, appellant's petition was untimely filed. See NRS 34.726{l). Moreover, appellant's petition was successive because he had previously litigated a postconviction petition for a writ of habeas corpus on the merits, and it constituted an abuse of the writ to the extent that he raised claims new and different from those raised in his previous petition. See NRS 34.810(1)(b)(2); NRS 34.810(2); see also Flores v. State, Docket No. 63422 (Order of Affirmance, July 23, 2014). Appellant's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b); 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). Moreover, because the State specifically pleaded laches, appellant also had to overcome the rebuttable presumption of prejudice. NRS 34.800(2). Based upon our review of the record on appeal, we conclude that the district court did not err in denying the petition as procedurally barred for the reasons discussed below.

Appellant 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.¹ McCoy held that an attorney may not concede guilt over a defendant's express objection. 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 strategy. Id. (quoting Florida v. Nixon, 543 U.S. 175, 181 (2004)). Here, trial counsel conceded appellant's guilt to three of the five charges (conspiracy to commit robbery, robbery, and burglary) during opening statements and closing arguments but also argued the State overcharged the case and disputed appellant's guilt to the two other charges (kidnapping and battery) and the weapons allegations.² Appellant was canvassed, indicated he discussed the concession strategy with counsel, and expressly consented to counsel's strategy. Trial counsel further explained the reasoning behind the limited concession and stated that it had been discussed with appellant. Thus, McCoy is distinguishable because appellant never opposed the concession and expressly consented to it during the canvass.

...