Hines v. Smith, 110519 NVCA, 77436-COA
|Opinion Judge:||GIBBONS C.J.|
|Party Name:||BRADFORD TRUMAN HINES, Appellant, v. GREGORY SMITH, WARDEN, NEVADA DEPARTMENT OF CORRECTIONS (THE STATE OF NEVADA), Respondent.|
|Judge Panel:||Tao J., Bulla, J. Hon. Alvin R. Kacin, District Judge|
|Case Date:||November 05, 2019|
|Court:||Court of Appeals of Nevada|
ORDER OF AFFIRMANCE
Bradford Truman Hines appeals from an order of the district court dismissing a postconviction petition for a writ of habeas corpus. Fourth Judicial District Court, Elko County; Alvin R. Kacin, Judge.
Hines filed his petition on December 19, 2011, more than one j year after issuance of the remittitur on direct appeal on December 3, 2010. Hines v. State, Docket No. 56409 (Order of Affirmance, November 8, 2010). Thus, Hines' petition was untimely filed. See NRS 34.726(1). Hines' petition was procedurally barred absent a demonstration of good cause- cause for the delay and undue prejudice. See id. To warrant an evidentiary hearing, a petitioner must allege specific facts that, if true and not belied by the record, would entitle him to relief. Berry v. State, 131 Nev. 957, 967, 363 P.3d 1148, 1154-55 (2015).
First, Hines argued he had cause for the delay because his appellate counsel for his direct appeal failed to properly advise him of the filing deadline for a postconviction petition for a writ of habeas corpus. A defendant has no right to advice regarding habeas relief from direct appeal counsel, see Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2002), and Hines did not demonstrate an impediment external to the defense prevented him from filing a petition in a timely manner, see Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003).
Moreover, Hines included with his petition a letter from his appellate counsel in which counsel advised Hines he had one year from the, resolution of his direct appeal to pursue postconviction relief. In the letter, counsel also stated he was including a sample postconviction petition that Hines could utilize when drafting his own petition. Despite the information provided by counsel, Hines filed his petition more than a year after the timely-filing deadline. Under these circumstances, Hines failed to demonstrate he had cause for his delay. Therefore, the...
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