Johnson v. Warden, Nevada State Prison
| Decision Date | 29 October 1973 |
| Docket Number | No. 7063,7063 |
| Citation | 515 P.2d 63,89 Nev. 476 |
| Court | Nevada Supreme Court |
| Parties | Matt JOHNSON, Jr., Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent. |
Gary Sheerin, State Public Defender, Carson City, for appellant.
Robert List, Atty. Gen., Carson City, Roy A. Woofter, Dist. Atty. and Charles A. Garner, Chief Deputy Dist. Atty., Las Vegas, for respondent.
Matt Johnson, Jr., was tried to a jury and convicted in 1970 for the crime of robbery. He was sentenced to a term of 5 years in prison. NRS 200.380. His conviction on appeal to this court was affirmed. Johnson v. State, 87 Nev. 364, 486 P.2d 493 (1971). Thereafter, on May 30, 1972, Johnson filed a petition pursuant to the Post-Conviction Relief Act (NRS 177.315--NRS 177.385), asserting as error the violation of certain of his constitutional rights. 1 The petition was denied after a hearing in the lower court, and it is from that denial that Johnson now appeals.
This court has refused successive writ applications under the Post-Conviction Relief Act where the petitioner has failed to explain in his later application for relief why the grounds that had been previously available to him were not asserted in his 'original, supplemental or amended petition.' Rogers v. Warden, 86 Nev. 359, 362, 468 P.2d 993, 994 (1970).
Members of this court have urged, and we now hold, that this court will consider as waived those issues raised in a post-conviction relief application which might properly have been raised on direct appeal, where no reasonable explanation is offered for petitioner's failure to present such issues. See concurring opinion of Justice Zenoff, Nall v. Warden, 86 Nev. 489, 491, 471 P.2d 218, 219 (1970); Craig v. Warden, 87 Nev. 39, 482 P.2d 325 (1971).
Petitions for post-conviction relief are not precluded under all circumstances where an appeal has already been taken. Such petitions may be entertained where the petitioner has shown good cause for his failure to raise such claims in the prior proceeding. NRS 177.375. 2 In the instant case, Johnson does not allege or show good cause for omitting from the prior appeal the issues now urged for consideration by this court. The evidence originally urged to be insufficient to establish guilt is now urged to be insufficient for constitutional reasons. There is no reason why both allegations could not have been raised at the same time.
The claimed errors existed at the time of appeal and should have been urged then and not in this post-conviction petition; accordingly, we affirm the decision of the lower court.
1 The petition is predicated upon 6 alleged violations: 1) that he was arrested without probable cause; 2) that he was held in custody in derogation of his constitutional rights before being taken before a magistrate; 3) that he was forced to participate in an unduly suggestive...
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