Klein v. Warden

• Decision Date: 16 April 2002
• Docket Number: No. 32960.,32960.
• Parties: Nolan E. KLEIN, Appellant, v. WARDEN, Ely State Prison, E.K. McDaniel, Respondent.
• Court: Nevada Supreme Court

43 P.3d 1029

118 Nev. 305

Nolan E. KLEIN, Appellant, v. WARDEN, Ely State Prison, E.K. McDaniel, Respondent.

No. 32960.

Supreme Court of Nevada.

April 16, 2002.

Nolan E. Klein, Carson City, in Proper Person.

Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, Washoe County, for Respondent.

Before SHEARING, ROSE and BECKER, JJ.

OPINION

PER CURIAM:

This is a proper person appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus. We hold that: (1) the statutory appeal period in post-conviction habeas corpus proceedings is not subject to the tolling provisions of NRAP 4(a)(2); (2) although the time to file the notice of appeal in this instance was not tolled under NRAP 4(a)(2), appellant Nolan Edward Klein's notice of appeal was nevertheless timely filed because Klein was not properly served with notice of entry of the district court's decision denying his petition; (3) Klein failed to demonstrate good cause and prejudice to overcome the procedural defaults barring consideration of his claims; and (4) the district court properly denied Klein's petition.

FACTS

On March 16, 1989, the district court convicted appellant Nolan Edward Klein, pursuant to a jury verdict, of two counts of robbery with the use of a deadly weapon, and one count each of burglary and sexual assault with the use of a deadly weapon. The district court sentenced Klein to serve two consecutive terms of life with the possibility of parole, plus consecutive terms totaling thirty years in the Nevada State Prison. Klein filed a direct appeal, and on December 28, 1989, this court affirmed his conviction, concluding in part that eyewitness testimony of the victims, positively identifying Klein as their assailant, supported the jury's findings of guilt.¹ Thereafter, Klein filed numerous post-conviction petitions and motions in the district court challenging his conviction and sentence. In each instance, the district court denied relief, Klein appealed the district court's decisions, and this court affirmed each decision on appeal.²

On October 15, 1996, Klein filed yet another proper person post-conviction petition for a writ of habeas corpus in the district court. In this petition, he sought dismissal of the charges against him or a new trial on the ground that the filters on two cigarette butts that were admitted into evidence at his trial were discovered missing in November of 1995, while in the care and custody of the district court's exhibit clerk. He claimed that the State's post-trial loss of the filters prejudiced him and denied him due process of law because, if they had not been lost, he could have had them tested and that such testing might have revealed exculpatory DNA evidence with a different DNA "signature" than his.

The district court appointed counsel to represent Klein, and conducted an evidentiary hearing on April 7, 1998. On May 6, 1998, the district court entered written findings of fact, conclusions of law, and a judgment denying Klein's petition. On May 14, 1998, Klein filed a proper person motion in the district court citing to NRCP 52(b) and 59(e) and requesting the district court "to make additional findings of fact and/or to alter or amend order and/or judgment." Klein's motion essentially asked the district court to reconsider its decision, and complained that counsel who had been appointed to represent him on the instant petition was ineffective. On August 24, 1998, the district court denied Klein's motion. On September 2, 1998, Klein filed a notice of appeal stating, in pertinent part, that "[t]his appeal is to all issues of law and fact presented to the district court within the above-entitled matter."

DISCUSSION

Preliminary jurisdictional concerns

As a preliminary matter, we note that Klein's appeal was timely filed and that this court has jurisdiction to consider this appeal only because the clerk of the district court did not properly serve Klein individually with notice of entry of the district court's order of May 6, 1998, denying the petition.³ In Lemmond v. State, this court held that under NRS 34.575(1) and NRS 34.830, the time to file a notice of appeal from an order denying a post-conviction habeas petition does not commence to run until notice of entry of an order denying the petition has been separately served by the district court on both the petitioner and the petitioner's counsel, if any.⁴ In the instant case, the clerk of the district court properly served notice of entry of the district court's order of May 6, 1998, on petitioner's counsel, but did not separately serve petitioner at petitioner's address. Therefore, the thirty-day appeal period provided by NRS 34.575(1) never commenced to run, and under our holding in Lemmond, Klein's notice of appeal of September 2, 1998, must be considered timely from the order of May 6, 1998, denying his petition. As discussed below, however, we emphasize that Klein's notice of appeal was not rendered timely as a result of the proper person motion he filed in the district court on May 14, 1998. We expressly hold today that this proper person motion did not "toll" or "extend" the time to file the notice of appeal from the district court's judgment of May 6, 1998.

Under NRAP 4(a)(2), the running of the time for filing a notice of appeal in some civil cases is "terminated" by certain timely tolling motions. Under the rule, the time for filing a notice of appeal commences to run from the date of service of notice of entry of an order of the district court resolving specified timely motions filed pursuant to NRCP 50(b), 52(b), or 59.⁵

In this case, Klein's motion of May 14, 1998, purported to seek relief pursuant to NRCP 52(b) and 59(e) by requesting the district court "to make additional findings of fact and/or to alter or amend order and/or judgment."⁶ In those civil cases to which NRAP 4(a)(2) is applicable, a proper and timely motion under these provisions would have tolled the time to file the notice of appeal. However, this court has consistently and repeatedly held that rules of civil appellate procedure are not applicable to appeals from statutory post-conviction habeas corpus proceedings.⁷ In order to clarify any potential ambiguity relating to this court's jurisdictional rules governing these types of appeals, we now specifically clarify our prior rulings to preclude the application of the civil tolling provisions of NRAP 4(a)(2) to appeals from orders and judgments of the district courts resolving post-conviction habeas corpus petitions. We expressly hold that the civil tolling provisions of NRAP 4(a)(2) are inconsistent with and inapplicable to the statutory procedures governing the litigation of post-conviction habeas corpus petitions.⁸ In sum, we continue to adhere to our firmly established holdings that the jurisdictional prerequisites in appeals from orders of the district court resolving post-conviction habeas corpus petitions are governed exclusively by the specific statutes and rules regulating criminal post-conviction appeals.⁹

Klein's petition was procedurally barred

Klein's petition was filed nearly seven years after the remittitur issued in his direct appeal. Moreover, Klein's petition was successive because he had previously filed numerous petitions and motions seeking post-conviction relief. Thus, the instant petition was procedurally barred absent a demonstration of good cause and prejudice excusing his failure to previously assert his claims relating to DNA testing of the cigarette filters in a timely manner.¹⁰

In an attempt to demonstrate good cause to excuse his procedural defaults and his failure to previously assert the claims relating to DNA testing of the allegedly exculpatory missing evidence, Klein argued that an order issued by the district court on April 11, 1991, permitted him:

the option and right ... to have forensic/DNA testing done on the physical and biological evidence in another independent lab, providing that [Klein] could find a forensic laboratory that could conduct reliable DNA testing without the necessity of compelling the victim or her husband to submit to the drawing of blood samples.

Klein's argument is repelled by the record.

The actual text of the district court's order of April 11, 1991, critically differs from Klein's characterization of the meaning and impact of this ruling. The district court's order stated:

The Court will not compel the victim, nor her husband to undergo invasive blood tests, nor will the Court require the Washoe County Forensics Laboratory to vary from whatever are its accepted policies and procedures. If the Washoe County Forensic Lab can do a DNA test of the semen in this case without other blood draws and if that test is not contrary to its normal policies and procedures, then it will be so ordered. If counsel or Petitioner wishes to submit the Petitioner's blood and/or semen to another lab for testing, that, too, will be allowed. Otherwise, the Motion may be, and hereby is, DENIED.

Even assuming that the district court's order could be construed as permitting DNA testing to proceed years after the order was issued, the order only addressed DNA testing of semen or blood, not saliva on the filters of cigarette butts. The fact remains that Klein never previously raised in any proceeding any claims relating to the potential exculpatory value of DNA testing of the cigarette filters prior to November of 1995, when they were discovered missing. Thus, the district court's order of April 11, 1991, does not establish good cause to excuse Klein's procedural defaults.

At the district court's April 7, 1998, evidentiary hearing on the instant petition, Klein also asserted that he did not pursue DNA testing of the cigarette filters prior to their disappearance in 1995 because he was incarcerated and could not find a laboratory to do the testing. As noted, however, Klein did not previously...