Williams v. State

• Decision Date: 26 February 2016
• Docket Number: No. 66579,66579
• Parties: JESSICA WILLIAMS, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Supreme Court

JESSICA WILLIAMS, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 66579

SUPREME COURT OF THE STATE OF NEVADA

February 26, 2016

ORDER OF AFFIRMANCE

This is an appeal from an order of the district court denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.

Appellant Jessica Williams filed her second postconviction petition for a writ of habeas corpus on June 28, 2011. Williams raised several claims in her second petition: (1) she was not provided fair notice that she would be subject to criminal liability for driving with marijuana metabolite in her blood or urine, (2) her trial and appellate counsel were ineffective for failing to argue that marijuana metabolite was not a prohibited substance as a matter of state law, (3) her trial and appellate counsel were ineffective for failing to argue that Williams did not have fair notice that she would be subject to criminal liability for driving with marijuana metabolite in her blood or urine, and (4) this court's decision in Williams v. State, 120 Nev. 473, 93 P.3d 1258 (2004) (Williams II) was an act of judicial expansion depriving her of fair notice. Williams' petition was procedurally defective in several respects.

Williams' petition was filed more than 8 years after issuance of the remittitur on direct appeal on January 3, 2003. Williams v. State, 118 Nev. 536, 50 P.3d 1116 (2002). Thus, her petition was untimely filed. See NRS 34.726(1). Williams' claim that she did not have fair notice was subject to the waiver bar (NRS 34.810(1)(b)) because this claim could have been raised on direct appeal. Williams' claims that she did not have fair notice and her trial and appellate counsel were ineffective were an abuse of the writ as they were new and different from the claim litigated in her first petition. See NRS 34.810(1)(b)(2); NRS 34.810(2). Williams could have raised her judicial expansion claim in a petition for rehearing in Williams II. Williams' petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3).

Good Cause

1. Postconviction counsel's conflict of interest cannot provide good cause.

The district court determined that Williams demonstrated good cause to excuse her late and successive petition because her postconviction counsel in the first proceedings had a conflict of interest as they represented her at trial and on appeal. The State argues that this decision was incorrect because there was no right to counsel in the postconviction proceedings and thus no right to the effective assistance of counsel. We agree.

This court has recognized that good cause must afford a legal excuse. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). In order to demonstrate good cause, a petitioner must show that an impediment external to the defense prevented her from complying with the procedural rules. Id. A claim of ineffective assistance of counsel may provide good cause but only where there is a right to counsel (statutory or constitutional) and the right to the effective assistance of counsel, see Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997); McKaguev. Warden, 112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996), and only where the good cause claim explains the procedural defects and is not itself procedurally barred, Hathaway, 119 Nev. at 252, 71 P.3d at 506; see also Edwards v. Carpenter, 529 U.S. 446, 451, 453 (2000) (explaining that an ineffective-assistance-of-counsel-good-cause argument must not itself be procedurally defaulted); Murray v. Carrier, 477 U.S. 478, 488 (1986) (explaining that a petitioner may demonstrate good cause where the procedural default is the result of ineffective assistance of counsel).

A conflict-of-interest claim is derived from a claim of ineffective assistance—it is counsel's breach of the duty of loyalty that gives rise to a claim that counsel was ineffective due to a conflict of interest. See Glasser v. United States, 315 U.S. 60, 70, 75-76 (1942) (framing a conflict-of-interest claim as a claim that the defendant was denied the effective assistance of counsel); Holloway v. Arkansas, 435 U.S. 475, 482-83 (1978) (same); Cuyler v. Sullivan, 446 U.S. 335, 345, 348-50 (1980) (same); Strickland v. Washington, 466 U.S. 668, 688, 692 (1984) (same); Mickens v. Taylor, 535 U.S. 162, 166, 175 (2002) (same); Mannon v. State, 98 Nev. 224, 226, 645 P.2d 433, 434 (1982) (framing claim as "his trial attorney's conflicting duties operated to deny him his sixth amendment right to effective assistance of counsel"); Hayes v. State, 106 Nev. 543, 556, 797 P.2d 962, 970 (1990) (acknowledging that this court has allowed ineffective-assistance-of-counsel claims on direct appeal when they relate to a conflict of interest), overruled on other grounds by Ryan v. Eighth Judicial Dist. Court, 123 Nev. 419, 168 P.3d 703 (2007). A conflict-of-interest claim thus requires there be a right to counsel and a right to the effective assistance of counsel. In Nevada, there is no constitutional or statutory right to postconviction counsel and no right to the effectiveassistance of postconviction counsel in non-capital cases. See Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 870 (2014). Because there is no constitutional or statutory right to postconviction counsel and no right to the effective assistance of postconviction counsel, postconviction counsel's conflict of interest cannot provide good cause in Nevada.¹ Several federal courts have reached a similar conclusion. See Weeks v. Angelone, 176 F.3d 249, 273-74 (4th Cir. 1999); Williams v. Thaler, 602 F.3d 291, 308-09 (5th Cir. 2010); Bonin v. Calderon, 77 F.3d 1155, 1159-60 (9th Cir. 1996); Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996); Nevius v. Sumner, 105 F.3d 453, 459-60 (9th Cir. 1996); Ortiz v. Stewart, 149 F.3d 923, 932-33 (9th Cir. 1998).

Further, Williams waited too long to file her second petition. We find unavailing Williams' argument that any delay should be measured from the time that her counsel with an alleged conflict was removed and new conflict-free counsel was appointed in the federal case as her conflict-of-interest-good-cause argument was reasonably available toher within one year from the decision in Williams II. Williams was on notice in 2003 in the first postconviction proceedings that there was an issue relating to a conflict of interest with her postconviction counsel. Even discounting this early notice, Williams was also made aware of the conflict-of-interest issue in 2009 when it was raised in the context of the federal habeas corpus proceedings as providing good cause. See Williams v. Bodo, No. 2:04-cv-01620-KJD-LRL (D. Nev. March 5, 2009). A party may not delay in presenting a good cause argument once the party is aware of the factual circumstances giving rise to the claim. See Hathaway, 119 Nev. at 253, 71 P.3d at 506 (recognizing that a good cause argument must be raised in a reasonable time and all claims reasonably available must be raised in a timely fashion).

Finally, we note a practical limitation of this good cause argument. Even assuming that postconviction counsel's conflict of interest could provide good cause, this argument would only provide good cause for raising claims of ineffective assistance of trial and appellate counsel—claims allegedly not raised due to postconviction counsel's conflict of interest in the first postconviction proceedings. Williams' conflict-of-interest argument would not provide good cause for her claim that she was not provided fair notice that she was prohibited from driving with marijuana metabolite as it does not explain why this claim was not raised previously. The alleged conflict of interest further does not explain why Williams did not litigate her judicial expansion claim in a timely fashion from the decision in Williams II. A claim that postconviction counsel was ineffective will not provide good cause for a late and successive petition. See McKague, 112 Nev. at 163-65, 912 P.2d at 258; Crump, 113 Nev. at 303, 934 P.2d at 253; Brown, 130 Nev., Adv. Op. 60, 331 P.3d at 870.

2. Williams' equal protection argument does not provide good cause.

The district court also determined that Williams had demonstrated good cause because her right to equal protection was violated when this court did not follow a general practice of taking corrective action sua sponte due to postconviction counsel's conflict of interest. Williams asserts that unpublished decisions demonstrate "this Court has ruled that the existence of such a conflict requires that a habeas corpus petitioner be allowed to litigate an otherwise successive and untimely petition, if he or she has been represented by counsel burdened with such a conflict during litigation of an initial habeas corpus petition."² There are several problems with this good cause argument.

"The Equal Protection Clause of the Fourteenth Amendment mandates that all persons similarly situated receive like treatment under the law." Gaines v. State, 116 Nev. 359, 371, 998 P.2d 166, 173 (2000); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Williams, however, fails to make any cogent argument or demonstrate that she is similarly situated to the individuals in her list of unpublished decisions. Williams fails to allege that the rules regarding theappointment of counsel were the same for her and for the individuals in her sample decisions. Williams fails to argue that the factual circumstances were similar—that the petitioners in the unpublished decisions requested the appointment of counsel with the conflict, authorized that counsel to pursue the petition, and waited years to challenge the alleged conflict of interest.

Further, Williams' list of unpublished decisions does not demonstrate that this court has a general practice of intervening sua sponte when postconviction counsel has a...