Robbins v. State, 111519 NVSC, 77067
|Opinion Judge:||GIBBONS, C. J.|
|Party Name:||DANIEL ROBBINS, Appellant, v. THE STATE OF NEVADA, Respondent.|
|Judge Panel:||Silver, Douglas, J. Hon. Robert W. Lane, District Judge|
|Case Date:||November 15, 2019|
|Court:||Supreme Court of Nevada|
ORDER OF AFFIRMANCE
GIBBONS, C. J.
This is an appeal from a district court order dismissing a postconviction petition for a writ of habeas corpus. Fifth Judicial District Court, Nye County; Robert W. Lane, Judge.
Appellant argues that the district court erred in determining that the supplemental petition was procedurally barred. Appellant filed a petition on August 19, 2015, within the one-year period for filing a timely postconviction petition for a writ of habeas corpus. NRS 34.726(1). The petition, however, did not set forth any grounds for relief, indicating additional grounds would be forthcoming. Appellant accompanied his petition with a motion to extend the time to file a supplemental petition, asking for 90 days to file a supplement. On September 21, 2015, the district court granted the motion in part and gave appellant 30 days to file a supplement. The supplement was filed on July 18, 2017, almost two years later. The district court determined that the supplemental petition was untimely filed and the claims raised therein were procedurally barred, but also denied the petition on its merits. We conclude that the district court erred in determining that the petition and supplemental petition were time barred. Although the supplement was undeniably submitted well beyond the deadline the district court set, 1 the supplemental petition was filed, the State never asked the district court to strike the late supplement, and the district court did not strike or otherwise deny appellant permission to file a late supplement. Because NRS 34.750(1) allows the district court to permit supplemental pleadings, and because our precedent allows a supplemental petition containing new claims to relate back to the original filing for purposes of the procedural bars, see State v. Powell, 122 Nev. 751, 758, 138 P.3d 453, 457-58 (2006), appellant's petition and supplemental petition were not procedurally time barred. Nevertheless, we affirm the district court's determination that appellant's substantive claims lack merit.
Appellant argues that the district court erred in denying his claims of ineffective assistance of counsel without an evidentiary hearing. To prove ineffective assistance of counsel, a petitioner must demonstrate that counsel's performance was deficient in that it fell below an objective standard of reasonableness, and resulting prejudice such that there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different. Strickland i>. Washington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland). Both components of the inquiry must be shown, Strickland, 466 U.S. at 697, and the petitioner must J demonstrate the underlying facts by a preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). An evidentiary hearing is required where a petitioner raises claims containing specific facts that are not belied by the record, and that, if true, would entitle the petitioner to relief. Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984).
Appellant argues counsel should have investigated problems with the 9-1-1 system.2 Appellant claims that he has found evidence that there were problems with the 9-1-1 system county wide and that this evidence would have supported appellant's wife's testimony that before the, shooting she had dialed 9-1-1 but was unable to connect to an operator. Appellant did not demonstrate deficient performance or prejudice. Testimony at trial indicated that appellant's wife was unsure whether she hit send after dialing 9-1-1 from her phone, and the 9-1-1 log did not contain any indication of a failed call that evening. Given the testimony about the circumstances of the shooting, appellant did not demonstrate that there was a reasonable probability of a different outcome had counsel presented testimony or evidence regarding problems with the 9-1-1 system. Therefore, the district court did not err in denying this claim without an evidentiary hearing.
Appellant argues that counsel should have identified, noticed, or called requisite...
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