# McKague v. Whitley

> Nevada Supreme Court · February 29, 1996 · 112 Nev. 159

URL: https://www.frixlaw.com/law-library/cases/9529669

## Case

- **Full name:** KENNETH D. McKAGUE, Appellant, v. WARDEN, HAROL L. WHITLEY, Nevada State Prison, Respondent
- **Court:** Nevada Supreme Court
- **Decided:** February 29, 1996
- **Citations:** 112 Nev. 159; 912 P.2d 255; 1996 Nev. LEXIS 34
- **Precedential status:** Published
- **Opinion:** Dissent by Springer
- **Judges:** Shearing, Springer, Steffen, Young, Rose
- **Cited by:** 77 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9529669

## How later opinions describe it (automated extraction)

- concluding that neither the United States nor Nevada Constitution provides for a right to counsel in postconviction proceedings
- noting that, because statute mandates appointment of counsel in the first postcon-viction proceeding when a petitioner is under sentence of death, “[i]t is axiomatic that the right to counsel includes the concomitant right to effective assistance of counsel.” [Internal citatio…
- noting that, because statute mandates appointment of counsel in the first postconviction proceeding when a petitioner is under sentence of death, "[i]t is axiomatic that the right to counsel includes the concomitant right to effective assistance of counsel." [Internal citation…
- holding generally that there is no federal or state constitutional or statutory right to counsel, or effective assistance of counsel, in a post-conviction proceeding
- holding that there is no constitutional right to effective assistance of counsel except where state law entitles one to the appointment of counsel

## Opinion text

Springer, J.,
dissenting:
Footnote 6 of the majority opinion lists twelve claims of *168 ineffective assistance by McKague’s trial counsel. No judicial tribunal has heard these claims on their merits. This is a death penalty case, and I believe that McKague’s claims should be heard on their merits.
I see the majority’s denying McKague a hearing on his second post-conviction petition to be overly-technical and contrary to the interests of justice. I am of the view that if a death-sentenced defendant is provided with counsel by the State, the defendant has an implied right to decent and competent representation. The majority is apparently of the opposite view when it holds that that “[wjhere there is no right to counself,] 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.” It is quite clear (if by no other indication than the failure to file a timely appeal) that McKague was not adequately represented. I am unwilling to overlook the unfairness inherent in ignoring this fact.
I disagree with the majority’s conclusion that the failure of McKague’s counsel to file a timely appeal “does not constitute ‘good cause,’ given that McKague has no right to counsel or effective assistance of counsel in a post-conviction proceeding.” I do not believe that once counsel is appointed to represent a petitioner for post-conviction relief in a death case that a reviewing court can ignore incompetent representation of such a client. In my opinion, the ineffective representation given to McKague in this case constitutes good cause for permitting McKague to assert this position in post-conviction proceedings. I would remand to the trial court to give McKague the opportunity to be heard.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9529669. Public record. Not legal advice.