The opinion
130 Nev., Advance Opinion 470
IN THE SUPREME COURT OF THE STATE OF NEVADA
CHRISTOPHER BROWN, No. 60065
Appellant,
vs.
E.K. MCDANIEL, WARDEN,
FILED
Respondent. AUG 0 7 2014
A• E K. LINDEMAN
CL U p.
BY As 40*
CHI lz DEP LERK
Appeal from a district court order dismissing a post- onviction
petition for a writ of habeas corpus. Second Judicial District Court,
Washoe County; Connie J. Steinheimer, Judge.
Affirmed.
Rene Valladares, Federal Public Defender, and Ryan Neil Norwood and
Megan C. Hoffman, Assistant Federal Public Defenders, Las Vegas,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Richard A.
Gammick, District Attorney, and Terrence P. McCarthy, Deputy District
Attorney, Washoe County,
for Respondent.
Steven S. Owens, Las Vegas,
for Amicus Curiae Nevada District Attorneys Association.
Robert Arroyo, Las Vegas,
for Arnicus Curiae Nevada Attorneys for Criminal Justice.
Catherine Cortez Masto, Attorney General, and Jeffrey M. Conner and
Michael J. Bongard, Deputy Attorneys General, Carson City,
for Amicus Curiae Nevada Attorney General.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
Appellant Christopher Brown appeals from the district court's
dismissal of his untimely and successive post-conviction petition for a writ
of habeas corpus. At issue is whether, in light of the United States
Supreme Court's recent decision in Martinez v. Ryan, 566 U.S. , 132 S.
Ct. 1309 (2012), the ineffective assistance of post-conviction counsel may
constitute good cause under MRS 34.726(1) and MRS 34.810 to allow a
noncapital petitioner to file an untimely and successive post-conviction
petition for a writ of habeas corpus. We conclude that Martinez does not
alter our prior decisions that a petitioner has no constitutional right to
post-conviction counsel and that post-conviction counsel's performance
does not constitute good cause to excuse the procedural bars under NRS
34.726(1) or MRS 34.810 unless the appointment of that counsel was
mandated by statute. E.g., Crump v. Warden, 113 Nev. 293, 302-03,934
P.2d 247, 253 (1997); McKague v. Warden, 112 Nev. 159, 163-65, 912 P.2d
255, 257-58 (1996). Because Brown failed to overcome the procedural
bars, we affirm the decision of the district court to dismiss the post-
conviction petition for a writ of habeas corpus.
FACTS AND PROCEDURAL HISTORY
Brown was convicted of first-degree murder with the use of a
deadly weapon and was sentenced to two consecutive terms of 20 to 50
years imprisonment. This court affirmed his judgment of conviction on
appeal in January 2006. Brown v. State, Docket No 45026 (Order of
Affirmance, January 11, 2006). The remittitur issued on February 7,
2006. Brown then filed a timely post-conviction petition for a writ of
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habeas corpus. The district court appointed counsel to represent him, and
counsel filed a supplemental petition. The district court denied Brown's
petition on the merits, and this court affirmed the district court's order.
Brown v. State, Docket No. 51847 (Order of Affirmance, August 10, 2009).
On June 10, 2010, Brown filed a second post-conviction
petition for a writ of habeas corpus, alleging claims of ineffective
assistance of trial and appellate counsel. Brown conceded that his petition
was untimely and successive but argued that he had good cause to excuse
the procedural bars because his first post-conviction counsel had provided
ineffective assistance by failing to present these claims in his first post-
conviction petition, and because he was actually innocent and it would be
a miscarriage of justice if his claims were procedurally barred. Brown
filed a notice of supplemental authority alerting the district court to a
then-pending case before the United States Supreme Court, Martinez v.
Ryan, 566 U.S. , 132 S. Ct. 1309 (2012). The district court dismissed
Brown's petition as procedurally barred pursuant to NRS 34.726(1) and
MRS 34.810 because the petition was untimely and successive. The
district court found that Brown failed to overcome the procedural bars
because ineffective assistance of post-conviction counsel did not constitute
cause to excuse the procedural bars and Brown did not demonstrate actual
innocence.
DISCUSSION
Brown challenges the district court's determination that his
claims were barred under MRS 34.726(1) and MRS 34.810. Specifically, he
claims that he established "good cause" to excuse these procedural bars
because his first post-conviction counsel was ineffective for failing to raise
or preserve meritorious claims in his initial state post-conviction
proceeding He relies on the Supreme Court's decision in Martinez.
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The applicable procedural bars
Nevada's statutory post-conviction scheme places procedural
limits on the filing of a post-conviction petition for a writ of habeas corpus.
NRS 34.726(1) provides for dismissal of a post-conviction habeas petition if
it is not filed within one year after this court issues its remittitur from a
timely direct appeal from the judgment of conviction or, if no appeal has
been prosecuted, within one year from the entry of the judgment of
conviction. See Dickerson v. State, 114 Nev. 1084, 1087, 967 P.2d 1132,
1133-34 (1998). NRS 34.810(1)(b) provides for dismissal of claims where
the petitioner's conviction was the result of a trial and the claims could
have been raised earlier. NRS 34.810(2) provides for dismissal of a second
or successive petition if the grounds for the petition were already raised
and considered on the merits in a prior petition or if the grounds could
have been raised in a prior petition.
To overcome these statutory procedural bars, a petitioner
must demonstrate "good cause" for the default and actual prejudice. NRS
34.726(1); NRS 34.810(3). We have defined "good cause" as a "substantial
reason .. . that affords a legal excuse." Hathaway v. State, 119 Nev. 248,
252, 71 P.3d 503, 506 (2003) (internal quotations omitted). To show good
cause, a petitioner must demonstrate that an "impediment external to the
defense" prevented him from complying with the procedural rules.
Passanisi v. Dir., Nev. Dep't of Prisons, 105 Nev. 63, 66, 769 P.2d 72, 74
(1989) (citing Murray v. Carrier, 477 U.S. 478 (1986)); see also Pellegrini v.
State, 117 Nev. 860, 886, 34 P.3d 519, 537 (2001).
Brown filed his second post-conviction petition more than four
years after the issuance of remittitur on direct appeal from the judgment
of conviction. His first petition was denied on the merits, and the claims
that he raised in his second petition were, or could have been, raised in his
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first petition. Thus, as Brown concedes, his second petition is barred as
untimely and successive unless he can demonstrate good cause for the
default and actual prejudice. See NRS 34.726(1); NRS 34.810(2), (3). He
asserts that the ineffective assistance of his prior post-conviction counsel
provides cause and prejudice to excuse his failure to comply with Nevada's
procedural rules governing post-conviction habeas petitions.
Our case law clearly forecloses Brown's contention. We have
consistently held that the ineffective assistance of post-conviction counsel
in a noncapital case may not constitute "good cause" to excuse procedural
defaults. See McKague, 112 Nev. at 163-65, 912 P.2d at 258; cf. Crump,
113 Nev. at 303 & n.5, 934 P.2d at 253 & n.5; Mazzan v. Warden, 112 Nev.
838, 841, 921 P.2d 920, 921-22 (1996). This is because there is no
constitutional or statutory right to the assistance of counsel in noncapital
post-conviction proceedings, and "[w]here there is no right to counsel there
can be no deprivation of effective assistance of counsel." 1 McKague, 112
Nev. at 164-65, 912 P.2d at 258.
Martinez v. Ryan does not address state procedural bars
Brown argues that Martinez changes this court's
jurisprudence holding that ineffective assistance of post-conviction counsel
'Petitioners who are sentenced to death have a statutory right to the
appointment of counsel in their first post-conviction proceeding, see NRS
34.820(1)(a), and are thus entitled to effective assistance of appointed
counsel in that proceeding. See McKague, 112 Nev. at 165 n.5, 912 P.2d at
258 n.5; see also Crump, 113 Nev. at 303 & n.5, 934 P.2d at 253 & n.5. In
contrast, the appointment of post-conviction counsel to represent
noncapital petitioners is subject to the district court's discretion as
provided in NRS 34.750(1).
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provides good cause to excuse a state procedural bar only when
appointment of that counsel was mandated by statute. We disagree. 2
Martinez, an Arizona state prisoner, filed a petition for a writ
of habeas corpus in federal court raising claims of ineffective assistance of
trial counsel 566 U.S. at 132 S. Ct. at 1314. Because those claims
had been denied in state court based on a state procedural rule (they could
have been raised in a prior state collateral proceeding), id. at , 132 S.
Ct. at 1314, federal court review of their merits normally would have been
precluded by the doctrine of procedural default, id. at , 132 S. Ct. at
1316. Martinez did not dispute that his claims had been rejected in state
court based on an independent and adequate state ground but instead
relied on an exception to the procedural default doctrine by which a state
"prisoner may obtain federal review of a defaulted claim by showing cause
for the default and prejudice from a violation of federal law." Id. at ,
132 S. Ct. at 1316. In particular, he argued that he had good cause for the
procedural default because counsel in his first state collateral proceeding
was ineffective for failing to raise the ineffective-assistance-of-trial-counsel
claims in that proceeding. Id. at , 132 S. Ct. at 1314-15.
The Supreme Court in Martinez thus considered "whether
ineffective assistance in an initial-review collateral proceeding on a claim
2 The State contends that we need not address this argument
because any rule allowing the ineffective assistance of post-conviction
counsel to constitute "good cause" to excuse procedural bars would not be
retroactively applied to Brown. We conclude that retroactivity is not at
issue because the second petition was the first opportunity for Brown to
assert the ineffectiveness of post-conviction counsel as good cause to
excuse a state procedural bar.
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of ineffective assistance at trial may provide cause for a procedural default
in a federal habeas proceeding." Id. at 132 S. Ct. at 1315 (emphasis
added). The Supreme Court answered that question in the affirmative
where state law provides that ineffective-assistance-of-trial-counsel claims
must be raised in a collateral proceeding:
Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from
hearing a substantial claim of ineffective
assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.
Id. at 132 S. Ct. at 1320.
The Supreme Court, however, expressly declined in Martinez
to decide whether a federal constitutional right to counsel exists in post-
conviction proceedings and instead emphasized that its ruling was
equitable in nature rather than constitutional. 3 Id. at , 132 S. Ct. at
1315, 1318. The Court clarified that the equitable rule did not require the
appointment of counsel in initial-review collateral proceedings in state
court but rather permitted the State "to elect between appointing counsel
in initial-review collateral proceedings or not asserting a procedural
default and raising a defense on the merits in federal habeas proceedings."
Id. at , 132 S. Ct. at 1319-20 (emphasis added).
3 The
Court recognized that its decision in Coleman v. Thompson,
501 U.S. 722 (1991), left open the question of "whether a prisoner has a
right to effective counsel in collateral proceedings which provide the first
occasion to raise a claim of ineffective assistance at trial." Martinez, 566
U.S. at , 132 S. Ct. at 1315. The Martinez Court declined to answer
that question. Id. at , 132 S. Ct. at 1315.
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Martinez does not alter our decisions in McKague and Crump
for two reasons. First, Martinez did not announce a constitutional right to
counsel in post-conviction proceedings. Rather, the Court created an
equitable exception to its decision in Coleman v. Thompson, 501 U.S. 722
(1991), "that an attorney's negligence in a postconviction proceeding does
not establish cause" so that a federal court may review a state prisoner's
defaulted claim. Martinez, 566 U.S. at , 132 S. Ct. at 1319. Second, the
Martinez decision is limited to the application of the procedural default
doctrine that guides a federal habeas court's review of the
constitutionality of a state prisoner's conviction and sentence. See, e.g., id.
at , 132 S. Ct. at 1313 (describing the question presented as "whether a
federal habeas court may excuse a procedural default"). It says nothing
about the application of state procedural default rules. Thus, Martinez
does not call into question the validity of NRS 34.750(1), which provides
for the discretionary appointment of counsel to represent noncapital
habeas petitioners, nor does it mandate a change in our case law holding
that noncapital petitioners have no right to the effective assistance of
counsel in post-conviction proceedings and that the ineffectiveness of
counsel representing a noncapital petitioner does not constitute good
cause to excuse a state procedural bar. 4 Accord State v. Escareno-Meraz,
307 P.3d 1013, 1014 (Ariz. Ct. App. 2013) (concluding that "Martinez does
not alter established Arizona law" that a defendant is not entitled to
4 We note that because Nevada requires that ineffective-assistance-
of-trial-counsel claims be raised in a post-conviction petition rather than
on direct appeal, see, e.g., Pellegrini, 117 Nev. at 882, 34 P.3d at 534, the
equitable rule from Martinez will apply to Nevada state petitioners in
federal habeas proceedings.
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effective assistance of counsel in post-conviction proceedings); Gore v.
State, 91 So. 3d 769, 778 (Fla. 2012) ("It appears that Martinez is directed
toward federal habeas proceedings and is designed and intended to
address issues that arise in that context."), cert. denied, 566 U.S. , 132
S. Ct. 1904 (2012); Martin v. State, 386 S.W.3d 179, 185-86 (Mo. Ct. App.
2012) ("Martinez speaks only to federal habeas corpus procedure and does
not establish a constitutional right to the effective assistance of post-
conviction counsel."); Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa.
Super. Ct. 2013) ("While Martinez represents a significant development in
federal habeas corpus law, it is of no moment with respect to the way
Pennsylvania courts apply the plain language of the time bar set forth in
[its post-conviction act]."), cert. denied, 571 U.S. , 134 S. Ct. 944 (2014);
Kelly v. State, 745 S.E.2d 377, 377 (S.C. 2013) ("Like other states, we
hereby recognize that the holding in Martinez is limited to federal habeas
corpus review and is not applicable to state post-conviction relief
actions.").
Brown and amicus curiae Nevada Attorneys for Criminal
Justice (NACJ) nonetheless urge this court to adopt the rationale from
Martinez even if Martinez does not require us to do so. 5 Brown contends
that the reasoning behind Martinez—promotion of comity, finality, and
federalism—applies equally to state habeas proceedings, and Nevada's
cause-and-prejudice analysis is nearly identical to the federal cause-and-
prejudice standard. We decline Brown's invitation to adopt an equitable
5 We invited the participation of amici curiae NACJ and the Nevada
District Attorneys Association (NDAA) concerning the applicability of
Martinez to state post-conviction proceedings.
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exception to the general rule in Nevada that the ineffective assistance of
post-conviction counsel does not establish cause for a habeas petitioner's
procedural default of an ineffective-assistance-of-trial-counsel claim unless
the appointment of post-conviction counsel was mandated by statute.
The exception pressed by Brown is contrary to the statutory
language in NRS Chapter 34 and the clear legislative intent behind the
statutes. Nevada's post-conviction statutes contemplate the filing of one
post-conviction petition to challenge a conviction or sentence. This is
reflected in the plain language of the statutes themselves. For example,
instruction number five to the habeas corpus petition form found in NRS
34.735 directs petitioners to include in the petition "all grounds or claims
for relief' regarding the conviction or sentence and warns petitioners that
failure to do so could preclude them from filing future petitions, 6 and NRS
34.810 provides for dismissal of claims that could have been or were raised
in a prior post-conviction proceeding, NRS 34.810(1)(b), (2). It is also
reflected in the legislative history of the statutes, which were amended in
1991 to provide for a single post-conviction remedy, effective January 1,
1993. See Pellegrini v. State, 117 Nev. 860, 870-73, 876-77, 34 P.3d 519,
526-28, 530 (2001) (setting forth the history of Nevada's post-conviction
remedies). The purpose of the single post-conviction remedy and the
°See also NRS 34.820(4) (providing that if petitioner has been
sentenced to death and the petition is the first one challenging the validity
of a conviction or sentence, "[Ole court shall inform the petitioner and the
petitioner's counsel that all claims which challenge the conviction or
imposition of the sentence must be joined in a single petition and that any
matter not included in the petition will not be considered in a subsequent
proceeding").
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statutory procedural bars is "to ensure that petitioners would be limited to
one time through the post-conviction system." Id. at 876-77, 34 P.3d at
530. As this court made clear in Pellegrini, "Nevada's lawmakers never
intended for petitioners to have multiple opportunities to obtain post-
conviction relief absent extraordinary circumstances." Id. at 876, 34 P.3d
at 530. The rule advanced on Brown's behalf would circumvent the
Legislature's "one time through the system" intent, as every petitioner
who is appointed post-conviction counsel would then have an opportunity
to litigate a second petition. The filing of successive (and most likely
untimely) petitions would overload the court system, significantly increase
the costs of post-conviction proceedings, and undermine the finality of the
judgment of conviction, precisely what the Legislature was attempting to
avoid in creating the single post-conviction remedy in NRS Chapter 34. 7
See id.; see also State v. Eighth Judicial Dist. Court, 121 Nev. 225, 231,
112 P.3d 1070, 1074 (2005) ("Habeas corpus petitions that are filed many
years after conviction are an unreasonable burden on the criminal justice
system. The necessity for a workable system dictates that there must
7 The lack of finality resulting from Martinez's equitable rule was a
major criticism by the dissenting justices:
Criminal conviction ought to be final before society
has forgotten the crime that justifies it. When a
case arrives at federal habeas, the state conviction
and sentence at issue (never mind the underlying
crime) are already a dim memory, on average
more than 6 years old (7 years for capital cases).
Martinez, 566 U.S. at , 132 S. Ct. at 1325 (Scalia, J., dissenting).
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exist a time when a criminal conviction is final." (internal quotations
omitted)).
The conflict between a rule similar to that in Martinez and
Nevada's current statutory habeas scheme becomes more apparent when
the remaining part of the Martinez rule is considered. Martinez does not
just allow the federal habeas courts to consider the merits of an
ineffective-assistance-of-trial-counsel claim that was procedurally
defaulted in state court where the petitioner was represented by allegedly
ineffective post-conviction counsel in the initial-review collateral
proceeding. It also allows the federal habeas courts to consider the merits
of a procedurally defaulted ineffective-assistance-of-trial-counsel claim
where the petitioner did not have counsel in the initial-review collateral
proceeding. 566 U.S. at , 132 S. Ct. at 1319-20. Although Brown only
urges this court to follow Martinez with respect to "cause" based on
ineffective assistance of post-conviction counsel, it would be difficult for us
to follow one part of Martinez without the other as both parts of the
holding are based on the same idea—that "a prisoner likely needs an
effective attorney" in order "[t]o present a claim of ineffective assistance at
trial in accordance with the State's procedures," id. at , 132 S. Ct. at
1317. If we were to follow the failure-to-appoint-counsel part of Martinez,
we would effectively eliminate the mandatory procedural default
provisions (particularly NRS 34.810) when the district court determines
that the appointment of counsel is not warranted, as it has the discretion
to do under NRS 34.750(1). The only way to maintain the integrity of the
mandatory procedural default provisions would be to appoint counsel in all
initial-review post-conviction proceedings, effectively making the
appointment of counsel mandatory in direct contravention of NRS
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34.750(1). 8 Given these provisions and the Supreme Court's refusal to
recognize a constitutional right to counsel in initial-review collateral
proceedings, this is one more reason that we cannot reconcile the Martinez
rule with our state habeas statutes even on the purportedly limited scope
advanced by Brown.
We also reject the suggestion that we should adopt an
exception similar to that adopted in Martinez because the Legislature
intended that the state habeas remedy be "coextensive" with the federal
habeas remedy and exceptions to federal procedural bars. Although the
Legislature may have created the statutory post-conviction remedy in
response to United States Supreme Court decisions that implied "the need
for an appropriate state post-conviction collateral remedy to review
claimed violations of federally protected rights," Marshall v. Warden, 83
Nev. 442, 444, 434 P.2d 437, 438-39 (1967) (citing Case v. Nebraska, 381
U.S. 336 (1965)) (indicating that the Nevada Legislature's adoption of the
post-conviction collateral remedy act in 1967 was in response to the
Supreme Court's extension of numerous federal protections to state
criminal cases), superseded by statute as stated in Passanisi v. Dir., Nev.
8 The Legislature at one time made the appointment of counsel
mandatory in post-conviction proceedings, see 1973 Nev. Stat., ch. 102, § 2,
at 169, but later made appointment of counsel discretionary, see 1987 Nev.
Stat., ch. 539, § 42, at 1230; see also Crump, 113 Nev. at 297 n.2, 934 P.2d
at 249 n.2. This history, combined with the Legislature's enactment of the
current statutes providing for mandatory appointment of counsel for
capital petitioners but discretionary appointment for noncapital
petitioners, compare NRS 34.750(1), with NRS 34.820(1), evinces an intent
to preclude noncapital petitioners from automatically being appointed
counsel.
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Dep't of Prisons, 105 Nev. 63, 67, 769 P.2d 72, 75 (1989), the statutory
provisions and legislative history do not evidence an intent that Nevada's
statutory procedural bars be coterminous with the federal doctrine of
procedural default. The doctrine of procedural default applied by federal
habeas courts is based in principles of comity; it is "designed to ensure
that state-court judgments are accorded the finality and respect necessary
to preserve the integrity of legal proceedings within our system of
federalism." Martinez, 566 U.S. at , 132 S. Ct. at 1316. In contrast, as
explained above, Nevada's statutory procedural bars are designed to
streamline the post-conviction review process and ensure the finality of
judgments of conviction while leaving open a safety valve for defaulted
violations of state law and constitutional rights in very limited
circumstances. 9 The state procedural bars to post-conviction habeas relief
thus "exist to implement policies independent from those animating the
9 We agree with Brown that the State has an interest in having
federal constitutional errors addressed in the first instance by a Nevada
court. But that interest is not the focus of Nevada's statutory habeas
remedy. The Legislature adopted mandatory procedural bars and did not
include an exception to the procedural bars for procedurally defaulted
claims that might nonetheless be addressed on the merits by a federal
habeas court. That is understandable since doing so would mean that a
petitioner's desire to exhaust a claim in state court before federal court
review would always excuse a state procedural bar—a result that would
render those procedural bars largely meaningless and undermine the
interest in finality that animates the statutory habeas remedy and its
procedural bars. Cf. In re Reno, 283 P.3d 1181, 1233 (Cal. 2012) (rejecting
the claim that petitioner's desire to exhaust claims for federal review
provided an exception to a state procedural rule precluding habeas corpus
where claimed errors could have been raised on appeal because such an
exception "would fatally undermine this state's substantial interest in the
finality of its criminal judgments").
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[federal doctrineS of procedural default]." In re Reno, 283 P.3d 1181, 1233
& n.30 (Cal. 2012).
Our history of turning to federal cases defining cause and
prejudice when interpreting similar language in Nevada's procedural
default statutes does not undermine that conclusion or require that we
blindly follow Martinez. While we have looked to the Supreme Court for
guidance, 10 we have not followed Supreme Court decisions when they are
inconsistent with state law. For example, we have rejected the prison
mailbox rule to allow for tolling of the one-year period for state post-
conviction habeas petitions, despite the application of it by federal habeas
courts. See Gonzales v. State, 118 Nev. 590, 594-95, 53 P.3d 901, 903-04
(2002). We have also rejected equitable tolling of the one-year filing period
set forth in NRS 34.726 because the statute's plain language requires a
petitioner to demonstrate a legal excuse for any delay in filing a petition.
See Hathaway, 119 Nev. at 252, 254 n.13, 71 P.3d at 506, 507 n.13. We
are not bound by Supreme Court decisions in our interpretation of the
10 5ee,e.g., Passanisi, 105 Nev. at 66, 769 P.2d at 74 (citing Murray
v. Carrier, 477 U.S. 478 (1986), for the requirement that good cause be
some impediment "external to the defense"); Hathaway v. State, 119 Nev.
248, 252, 71 P.3d 503, 506 (2003) (quoting the Supreme Court's
explanation in Murray, 477 U.S. at 488, as to how an impediment
"external to the defense" may be demonstrated); McKague v. Warden, 112
Nev. 159, 164 & n.4, 165, 912 P.2d 255, 258 & n.4 (1996) (adopting the
reasoning that the Supreme Court applied to federal habeas proceedings
as to whether the ineffective assistance of counsel may constitute "good
cause"); Crump v. Warden, 113 Nev. 293, 304, 934 P.2d 247, 253 (1997)
(relying on Murray and Coleman v. Thompson, 501 U.S. 722 (1991), for the
proposition that mere attorney error such as ignorance or inadvertence
may not constitute "cause").
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"cause" exceptions under NRS 34.726 and 34.810, and because the
Martinez rule does not fit within our State's statutory post-conviction
framework, we decline to extend it to state post-conviction proceedings.
Post-conviction relief is a statutory remedy and it is up to the
Legislature to define its contours. Adoption of a rule fashioned after
Martinez would conflict with the current statutory post-conviction scheme,
impose significant costs, and undermine the finality of judgments of
conviction. Whether or how a rule similar to that adopted in Martinez
should be adopted in state post-conviction proceedings is a matter of policy
and lies in the hands of the Legislature. Based on the foregoing, we
conclude that Brown's petition was barred as untimely and successive and
that he did not demonstrate good cause and prejudice to overcome the
procedural bars.
Actual innocence
Brown also argues that the failure to consider his claims on
the merits would result in a fundamental miscarriage of justice because
there was no evidence of premeditation and deliberation, and thus the
facts at trial did not support a finding of first-degree murder. In order to
demonstrate a fundamental miscarriage of justice, a petitioner must make
a colorable showing of actual innocence—factual innocence, not legal
innocence. Pellegrini, 117 Nev. at 887, 34 P.3d at 537; see Calderon v.
Thompson, 523 U.S. 538, 559 (1998). Actual innocence means that "it is
more likely than not that no reasonable juror would have convicted him in
light of. . . new evidence." Calderon, 523 U.S. at 559 (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini, 117 Nev. at 887, 34
P.3d at 537. Brown does not identify any new evidence of his innocence;
rather, his argument of actual innocence relies on his legal claims that
there was insufficient evidence of first-degree murder presented at trial
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and that his counsel provided ineffective assistance at trial Thus, the
district court did not err in finding that Brown failed to make a showing of
actual innocence.
CONCLUSION
We conclude that Brown is not entitled to relief in this appeal,
and we affirm the district court's order dismissing his untimely and
successive petition for a writ of habeas corpus. 11
,
J.
Hardesty
We concur:
C. J.
e tchutAkp
Pickering
J.
ouut_02_96--0 O.
Parraguirre
J.
11 1nlight of this disposition on appeal, we deny as moot the State's
motion for leave to file a response to Brown's notice of supplemental
authorities.
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CHERRY, J., with whom SAITTA, J., agrees, dissenting:
I respectfully dissent. I believe that equity and fairness
require a different result. In carving out an equitable exception to the
cause requirement, Martinez recognized that the "right to the effective
assistance of counsel at trial is a bedrock principle in our justice
system. . . . Indeed, the right to counsel is the foundation for our
adversary system." 566 U.S. at , 132 S. Ct. at 1317. A post-conviction
petition for a writ of habeas corpus is a defendant's first and last chance to
assert a claim of ineffective assistance of trial counsel and thus is vital to
safeguarding a defendant's right to counsel at trial. Although the
appointment of post-conviction counsel currently is not required in
Nevada, I believe that indigent noncapital petitioners like Brown who
have been convicted of murder and are serving significant sentences,
should have the assistance of counsel in their first state post-conviction
petition. See NRS 34.750(1) (indicating that a court may consider the
"severity of the consequences facing the petitioner" when deciding whether
to appoint post-conviction counsel). Once post-conviction counsel has been
appointed to represent such a petitioner, counsel should be effective. A
petitioner who has been convicted of murder and is facing a severe
sentence should not be denied the chance to litigate a meritorious claim of
ineffective assistance of trial counsel merely because his post-conviction
counsel failed to raise the claim in the initial post-conviction proceeding.
Thus, in these circumstances, I agree with amicus curiae NACJ that there
are compelling reasons to adopt the equitable exception from Martinez in
state habeas proceedings. Accordingly, I would reverse and remand for
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the district court to determine whether Brown can demonstrate a
substantial underlying ineffective-assistance-of-trial-counsel claim.
I concur:
J.
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