McKague v. Whitley

• Citation: 912 P.2d 255,112 Nev. 159
• Decision Date: 29 February 1996
• Docket Number: No. 25816,25816
• Parties: Kenneth D. McKAGUE, Appellant, v. Warden, Harol L. WHITLEY, Nevada State Prison, Respondent.
• Court: Supreme Court of Nevada

Page 255

912 P.2d 255

112 Nev. 159

Kenneth D. McKAGUE, Appellant, v. Warden, Harol L. WHITLEY, Nevada State Prison, Respondent.

No. 25816.

Supreme Court of Nevada.

Feb. 29, 1996.

Rehearing Denied July 24, 1996.

James J. Jackson, Public Defender, and Roger H. Stewart, Deputy Public Defender, Carson City, for Appellant.

Frankie Sue Del Papa, Attorney General, and Keith G. Munro, Deputy Attorney General, Noel Waters, District Attorney, Carson City, for Respondent.

OPINION

SHEARING, Justice.

Kenneth McKague was convicted of two counts of first-degree murder and other crimes in 1979. He was sentenced to death for the murders. This court affirmed the conviction and the sentence in McKague's direct appeal. McKague v. State, 101 Nev. 327, 328, 705 P.2d 127, 128, cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985). McKague subsequently filed a Post-Conviction Petition for a Writ of Habeas Corpus pursuant to NRS 177.315-385 in the Second Judicial District Court, alleging ineffective assistance of his trial counsel. ¹ The district court denied the petition. McKague's counsel failed to timely appeal. Because McKague's counsel filed an untimely appeal, this court dismissed the appeal for lack of jurisdiction. McKague v. State, 104 Nev. 865, 809 P.2d 612 (1988).

McKague filed a second post-conviction petition for a writ of habeas corpus in proper person, alleging, inter alia, prior and additional claims of ineffectiveness of trial counsel and a new claim of ineffectiveness of his first post-conviction counsel for counsel's failure to file a timely appeal. The district court dismissed the petition with prejudice concluding that some claims had already been disposed of on the merits in the prior petition, and the other claims could have been raised in McKague's first petition; the district court determined that McKague's failure to assert those new grounds in the prior petition constituted an abuse of the writ. See NRS 34.810(2). The district court further concluded that post-conviction counsel's failure to timely perfect an appeal could not constitute "cause" for filing a successive petition, because McKague was not entitled to effective assistance of counsel in post-conviction proceedings pursuant to Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (counsel's failure to timely file notice of appeal in state court did not excuse procedural default to permit habeas review). ² The district court also concluded that Grondin v. State, 97 Nev. 454, 634 P.2d 456 (1981), which sets forth the standard for what constitutes failure to provide the required caliber of representation in post-conviction proceedings, was inapplicable. Finally, the district court concluded that, in any event, McKague failed to demonstrate that he was prejudiced by his counsel's failure to appeal, stating that McKague "failed to demonstrate that the result would have been different had the appeal been timely."

McKague appeals, arguing that (1) he has a right to effective assistance of counsel in post-conviction proceedings, (2) the ineffective assistance of his post-conviction counsel prejudiced his ability to litigate his substantive claims and was sufficient to excuse the procedural default, and (3) the district court erred in applying the doctrine of the law of the case to claims he had already presented in his first petition.

McKague has no statutory right to counsel in a post-conviction proceeding. Nevertheless, McKague argues that Grondin provides for a state law right to effective assistance of counsel in a post-conviction proceeding for three reasons. First, he asserts that Grondin is still good law and has not been overruled by this court. Second, he argues that United States Supreme Court case law does not undermine or negate Grondin, because the Nevada Supreme Court may interpret the state constitution to provide the appellant with greater protection than that provided by the United States Constitution. Third, McKague contends that although the United States Supreme Court recognized in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), and Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), that there is no federal right to effective assistance of counsel or to counsel at all in post-conviction proceedings, these decisions do not alter the law of states which recognize the right to effective assistance of counsel. McKague cites Commonwealth v. Albert, 522 Pa. 331, 561 A.2d 736 (1989), decided subsequent to Finley and on state law grounds, for the proposition that submission of a post-conviction brief completely lacking in substance constitutes ineffective assistance of counsel.

It is true that under the Sixth Amendment to the United States Constitution there is no right to effective assistance of counsel, or to counsel at all, in post-conviction proceedings. See Coleman, 501 U.S. at 752, 111 S.Ct. at 2566; Finley, 481 U.S. at 555, 107 S.Ct. at 1993; Bonin v. Vasquez, 999 F.2d 425, 429-30 (9th Cir.1993).

The Nevada Constitution also does not guarantee a right to counsel in post-conviction proceedings, as we interpret the Nevada Constitution's right to counsel provision as being coextensive with the Sixth Amendment to the United States Constitution. Cf. Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985) (adopting the federal standard of review for petitions alleging ineffective assistance of counsel claims in Nevada). We note that Grondin was not decided as a matter of state constitutional law. The allegation of ineffective assistance of post-conviction counsel in Grondin was raised pursuant to the Sixth Amendment to the United States Constitution. 97 Nev. at 455, 634 P.2d at 457. As a result, it is clear that Grondin was decided based upon this court's interpretation of Sixth Amendment jurisprudence. It is now clear from Coleman and Finley that the right to counsel under the United States Constitution never extended to state collateral proceedings and that this court merely misperceived the status of federal law in Grondin. ³

McKague concedes that if he has no right to effective assistance of counsel in a post-conviction proceeding, he cannot complain that his post-conviction counsel failed to timely appeal. We hold that McKague has no right to effective assistance of counsel, let alone any constitutional or statutory right to counsel at all, in his post-conviction proceedings. ⁴

Because McKague has no federal constitutional, state constitutional or statutory right to counsel, or effective assistance of counsel, in a post-conviction proceeding, McKague cannot demonstrate "good cause" for filing a successive petition based on an ineffectiveness of post-conviction counsel claim. NRS 34.810(3). Where there is no right to counsel there can be no deprivation of effective assistance of counsel and hence, "good cause" cannot be shown based on an ineffectiveness of post-conviction counsel claim. Cf. Coleman, 501 U.S. at 752-54, 111 S.Ct. at 2566-67 (clarifying that attorney error can be "cause" only if it constitutes ineffective assistance of counsel violative of the Sixth Amendment). ⁵

In any event, we note that it would not have mattered if McKague's post-conviction counsel had timely appealed, as McKague's claims lack merit. McKague lists twelve claims of ineffective assistance of his trial counsel for this court to consider. ⁶ He argues that the existence of any of the errors demonstrates a reasonable probability that this court would have reversed the district court's denial of his first petition. He also argues that the cumulative effect of multiple errors may have deprived him of a fair trial. While McKague cites to the record on appeal and cites case law for the proposition that his trial counsel was ineffective, he does not explain the circumstances surrounding each allegation of ineffectiveness, why the district court was incorrect, and/or whether case law issued subsequently applies retroactively.

In the decision denying McKague's first petition, the Second Judicial District Court concluded that his substantive claims were not meritorious. We conclude that the district court did not abuse its discretion in denying McKague's first post-conviction petition because his claims indeed were not meritorious. Therefore, the result would not have been different had his post-conviction counsel timely appealed.

After an evidentiary hearing on McKague's second petition, the First Judicial District Court concluded that the prior decisions of this court and the Second Judicial District Court constituted the law of the case and that any claim previously decided was procedurally barred under that doctrine. McKague argues that the First Judicial District Court, in dismissing his second petition, erred by concluding that the doctrine of the law of the case applies because this court had not considered the merit of his claims.

The doctrine of the law of the case is inapplicable because only appellate court decisions may constitute the law of the case. See Hall v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975). Instead, NRS 34.810(2) governs this situation:

A second or successive petition must be dismissed if the judge or justice determines that it fails to allege new or different grounds for relief and that the prior determination was on the merits or, if new and different grounds are alleged, the judge or justice finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

NRS 34.810(2) provides that a court must dismiss a successive petition if it determines that the petition fails to allege new claims and the prior determination was on the merits; if new claims are alleged, the court must dismiss the successive petition if it determines that the failure to raise those claims in a prior petition constitutes an...