Sullivan v. State

• Decision Date: 03 September 2004
• Docket Number: No. 42185.,42185.
• Parties: Carl Otis SULLIVAN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

96 P.3d 761

120 Nev. 537

Carl Otis SULLIVAN, Appellant, v. The STATE of Nevada, Respondent.

No. 42185.

Supreme Court of Nevada.

September 3, 2004.

Jill I. Greiner, Reno, for Appellant.

Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

Before SHEARING, C.J., ROSE and MAUPIN, JJ.

OPINION¹

PER CURIAM.

In this appeal, we consider whether the district court's entry of an amended judgment of conviction provided good cause to extend the one-year limitation set forth in NRS 34.726(1) for filing a timely post-conviction petition for a writ of habeas corpus. We conclude that because the claims presented in appellant's post-conviction petition were unrelated to the district court's clerical amendment, the entry of the amended judgment in this case did not provide good cause to excuse appellant's failure to raise the claims asserted in his petition within the statutory deadline.

FACTS

On December 29, 1997, appellant Carl Otis Sullivan was charged by way of criminal information with robbery with the use of a deadly weapon, burglary, and possession of stolen property. The State alleged in the information that Sullivan committed burglary by entering the victim's residence with felonious intent, committed robbery with the use of a deadly weapon by threatening the victim with a knife and taking his Mercedes Benz, and possessed stolen property including "three mink coats, a camera, a compact disc player, a video cassette recorder and miscellaneous jewelry."

On January 7, 1998, Sullivan pleaded guilty to one count each of robbery, burglary, and possession of stolen property. The district court sentenced Sullivan to serve consecutive prison terms of 35 to 156 months, 22 to 96 months, and 22 to 96 months. The original judgment of conviction contained a clerical error, i.e., it erroneously pronounced Sullivan guilty of robbery with the use of a deadly weapon, when in fact Sullivan had pleaded guilty to simple robbery, without the use of a deadly weapon. On direct appeal, this court affirmed the judgment of conviction, rejecting Sullivan's claim that the State had breached the plea agreement, but remanded the case to the district court, directing it to correct the mistaken reference to the deadly weapon enhancement.² On January 3, 2000, before this court issued the remittitur in the direct appeal, the district court entered a corrected judgment of conviction. Thereafter, this court issued the remittitur on January 10, 2000.

On May 10, 2001, Sullivan filed a proper person post-conviction petition for a writ of habeas corpus. The district court appointed counsel to represent Sullivan, and counsel filed a supplement to the petition. On October 2, 2001, the State moved to dismiss the petition, arguing that it was untimely and procedurally barred. Counsel for Sullivan filed an opposition to the motion to dismiss, arguing that Sullivan had good cause to excuse the untimely filing of his petition. Thereafter, the district court concluded that it did not have jurisdiction over the case when it had entered the corrected judgment on January 3, 2000, because this court had not yet issued the remittitur in the direct appeal.³ Consequently, on December 11, 2001, the district court vacated the corrected judgment and entered a new amended judgment of conviction. The parties then stipulated that Sullivan's supplemental petition should be treated as timely because it was filed within one year of the entry of the amended judgment.

On July 12, 2002, counsel for Sullivan filed a second supplement to the post-conviction habeas petition. On August 6, 2002, the district court denied the State's motion to dismiss and ordered the State to file an answer to Sullivan's petition. On September 17, 2002, the State filed an answer to the petition and a partial motion for dismissal, arguing that Sullivan's claims were belied by the record. On October 16, 2002, counsel for Sullivan filed a reply to the State's answer and an opposition to the partial motion for dismissal. On October 30, 2002, the district court denied the State's partial motion for dismissal. After conducting an evidentiary hearing on the merits of Sullivan's claims of ineffective assistance of counsel, the district court denied the petition on September 17, 2003. Sullivan filed this timely appeal.

DISCUSSION

Sullivan contends that the district court erred in rejecting his claims of ineffective assistance of counsel. Before addressing the substance of Sullivan's claims, we first discuss whether Sullivan's post-conviction habeas petition was procedurally barred.⁴ Sullivan's post-conviction petition was untimely because it was filed approximately 14 months after this court issued the remittitur in the direct appeal.⁵ The parties, however, stipulated that the claims presented in the supplemental petition should be treated as timely because the petition was filed within one year of the entry of the amended judgment of conviction. We conclude that the petition was improperly treated as timely under NRS 34.726 simply because it was filed within one year of the entry of the amended judgment of conviction.⁶

NRS 34.726(1) provides that a timely post-conviction habeas petition "must be filed within 1 year after entry of the judgment of conviction or, if an appeal has been taken from the judgment, within 1 year after the Supreme Court issues its remittitur." No specific language in NRS 34.726 expressly provides that the one-year time period restarts if the judgment of conviction is amended.

Moreover, construing NRS 34.726 to provide such an extended time period would result in an absurdity that the Legislature could not have intended.⁷ A judgment of conviction may be amended at any time to correct a clerical error⁸ or to correct an illegal sentence.⁹ Because the district court may amend the judgment many years, even decades, after the entry of the original judgment of conviction, restarting the one-year time period for all purposes every time an amendment occurs would frustrate the purpose and spirit of NRS 34.726. Specifically, it would undermine the doctrine of finality of judgments by allowing petitioners to file post-conviction habeas petitions in perpetuity.¹⁰ When the Legislature enacted NRS 34.726, the "overall spirit was one of limiting habeas petitioners to one time through the [post-conviction] system absent extraordinary circumstances."¹¹ In keeping with the spirit of NRS 34.726, we conclude that the one-year statutory time limit did not automatically restart for Sullivan's post-conviction claims simply because the district court entered the amended judgment of conviction.

Instead, we hold that the statutory framework set forth in NRS 34.726(1) requires that claims presented in an untimely post-conviction habeas petition must be dismissed as procedurally barred "[u]nless there is good cause shown for [the] delay." NRS 34.726(1) provides in pertinent part:

For the purposes of this subsection, good cause for delay exists if the petitioner demonstrates to the satisfaction of the court:

(a) That the delay is not the fault of the petitioner; and

(b) That dismissal of the petition as untimely will unduly prejudice the petitioner.

Absent a showing of good cause as defined by this statute, untimely post-conviction claims that arise out of the proceedings involving the initial conviction or the direct appeal and that could have been raised before the judgment of conviction was amended are procedurally barred. We emphasize, however, that the entry of an amended judgment may in and of itself provide the good cause required by the statute to present appropriate post-conviction claims relating to the amendment at issue. In other words, if the claims presented in a petition filed within one year of the entry of the amended judgment challenge the proceedings leading to a substantive amendment to the judgment and could not have been raised in prior proceedings, there may be no delay attributable to the "fault of the petitioner."¹² In this case, Sullivan alleged that his counsel in the initial district court proceedings leading to his conviction and his counsel on direct appeal were ineffective. Sullivan also challenged the validity of his guilty plea. These claims were not related to and did not contest the clerical correction contained in the amended judgment of conviction. Rather, they all arose during the proceedings leading to the original judgment of conviction and during the prosecution of the direct appeal. As such, those claims could have been previously raised in a timely petition filed on or before January 10, 2001—within one year after this court issued the remittitur in the direct appeal. Therefore, the entry of the amended judgment of conviction did not provide good cause to excuse the untimely filing of Sullivan's petition.

Additionally, Sullivan alleged as good cause for the delay that his attorney did not send him a copy of the remittitur¹³ or the corrected judgment and did not inform him that he had one year from the issuance of the remittitur in the direct appeal to seek post-conviction relief. These allegations are insufficient to demonstrate that an...