Petition for Writ of Certiorari — Timothy Howard Johnson, Petitioner v. Renee Baker, Warden
Supreme Court briefApr 14, 2021
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IN THE SUPREME COURT OF THE STATE OF NEVADA
TIMOTHY HOWARD JOHNSON,
Appellant,
vs.
RENEE BAKER, WARDEN,
LOVELOCK CORRECTIONAL
CENTER,
Respondent.
No. 80279
FEB 1 6 2021
ELIZABETH A. BROWN
CLERK OF SUPREME COURT
BY— 5 V Pl-A NsjU/x sDEPUTY CLEE^K
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order denying a
postconviction petition for a writ of habeas corpus.1 Second Judicial District
Court, Washoe County; Lynne K. Simons, Judge.
Appellant Timothy
Howard Johnson argues that the district court erred in denying his petition
as procedurally barred. We affirm.
Johnson filed the petition 30 years after remittitur issued on
his direct appeal. Johnson v. State, Docket No. 18178 (Order Dismissing
Appeal, March 30, 1988). Thus, his petition was untimely filed.2 See NRS
Johnson’s petition was procedurally barred absent a
34.726(1).
demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS
1Having considered appellant’s pro se brief, we conclude that a
response is not necessary. NRAP 46A(c). This appeal therefore has been
submitted for decision based on the pro se brief and the record. See NRAP
34(f)(3).
2The petition was also untimely from the January 1, 1993, effective
date of NRS 34.726(1). See Pellegrini v. State, 117 Nev. 860, 874, 34 P.3d
519, 529 (2001), abrogated on other grounds by Rippo v. State, 134 Nev. 411,
423 n.12, 423 P.3d 1084, 1098 n.12 (2018).
Supreme Court
OF
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Nevada
(O) 1947A
i>
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34.810(3). Good cause may be demonstrated by a showing that the factual
or legal basis for a claim was not reasonably available to be raised in a
timely petition and that the petitioner raised the claim within a reasonable
time after the factual or legal basis for it became available. Hathaway v.
State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003).
Johnson argues that the Supreme Court’s recent decision m
McCoy v. Louisiana, 138 S. Ct. 1500 (2018), provides good cause, He is
mistaken, as McCoy is distinguishable. McCoy holds that an attorney may
not concede a defendant’s guilt of a charged crime where the defendant
expressly objects or insists on maintaining his or her innocence. 138 S. Ct.
at 1509. Here, Johnson represented himself at trial with the assistance of
standby counsel, who did not concede his guilt to the jury, Johnson’s
contention that he elected to represent himself rather than proceed to trial
with the assistance of attorneys who wanted to concede guilt to lesser
offenses does not bring his case within McCoy’s narrow scope, which does
not encompass the decision to represent oneself.
See id. at 1507-08
(differentiating a defendant electing to proceed pro se from a defendant
receiving assistance from counsel that must not violate a defendant s
fundamental objectives of the defense). Insofar as Johnson contends that
his decision to proceed pro se was coerced and that his canvass pursuant to
Faretta v. California, 422 U.S. 806 (1975), was improper, such claims were
reasonably available to be raised in a timely petition, and he did not allege
good cause to excuse the delay. Because McCoy is distinguishable, we need
not decide whether McCoy applies retroactively. Accordingly, Johnson has
not shown that McCoy provides good cause, and the district court correctly
applied the mandatory procedural bars. See State u. Eighth Judicial Dist.
Court (Riker), 121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005).
Supreme Court
Nevada
(O) 1947A
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flpp&oont A, P 2^
Having considered Johnson’s contentions and concluded that
they do not warrant relief, we
ORDER the judgment of the district court AFFIRMED.
J.
Cadish
Pickering
J
, J-
JHerndon
cc:
Hon. Lynne K. Simons, District Judge
Timothy Howard Johnson
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
Supreme Court
of
Nevada
(0) 1947A
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IN THE SUPREME COURT OF THE STATE OF NEVADA
Supreme Court No. 80279
TIMOTHY HOWARD JOHNSON,
Appellant,
District Court Case No. C861138
vs.
RENEE BAKER, WARDEN, LOVELOCK
CORRECTIONAL CENTER,
Respondent.
REMITTITUR
TO:
Jacqueline Bryant, Washoe District Court Clerk
Pursuant to the rules of this court, enclosed are the following:
Certified copy of Judgment and Opinion/Order.
Receipt for Remittitur.
DATE: March 15, 2021
Elizabeth A. Brown, Clerk of Court
By: Kaitlin Meetze
Administrative Assistant
cc (without enclosures):
Hon. Lynne K. Simons, District Judge
Timothy Howard Johnson
Washoe County District Attorney \ Jennifer P. Noble
RECEIPT FOR REMITTITUR
Received of Elizabeth A. Brown, Clerk of the Supreme Court of the State of Nevada, the
REMITTITUR issued in the above-entitled cause, on__________________________ .
District Court Clerk
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21-07374
p.4
FILED
Electronically
C86-1138
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2019-12-10 11:31:14 aM
Jacqueline Bryant
Clerk of the Court
Transaction # 762935 0
CODE NO.
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,N THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
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IN AND FOR THE COUNTY OF WASHOE
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Case No. C86-1138
TIMOTHY HOWARD JOHNSON
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Dept. No. 6
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Petitioner,
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vs.
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RENEE BAKER, WARDEN, LOVELOCK
13 I CORRECTIONAL CENTER,
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Respondents.
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16 | ORDER GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
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Petitioner
TIMOTHY HOWARD JOHNSON (“Mr. Johnson”) filed his current Petition
for Writ of Habeas Corpus (Post-Conviction) (“Petition”) on March 1, 2019. Thereafter, the
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Court entered its Order to Respond on March 25, 2019. The STATE OF NEVADA (“the
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State”) filed its Motion to Dismiss Petition for Writ of Habeas Corpus (Post-Conviction)
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(“Motion”) which is now before the Court. Thereafter, Mr. Johnson filed his Opposition to
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Motion to Dismiss Petition for Writ of Habeas Corpus (Post-Conviction) (“Opposition") . The
State did not file any additional papers, and the matter was submitted for decision.
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I.
FACTS AND PROCEDURAL HISTORY.
This Petition arises out of the Judgment of Conviction entered in this proceeding
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March 19, 1987. Mr.
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on
Johnson was convicted of Murder in the First Degree with the Use of a
Deadly Weapon and sentenced to life without the possibility of parole with an additional
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6 I consecutive life sentence for the deadly weapon enhancement. See Judgment of
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Conviction. Mr.
13, 1987.
Johnson filed his Notice of Appeal to the Nevada Supreme Court on April
Subsequently, the Nevada Supreme Court dismissed the appeal, issuing its
Order Dismissing Appeal.1
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CV89-1711. On March 27, 1989, Mr. Johnson filed his first Petition for Post-
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12 1 Conviction Relief 'm CV89-1711. Decades later, Mr. Johnson filed a Second Amended
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Petition for Writ of Habeas Corpus on February 7, 2013. Counsel was appointed, and a
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Supplemental Petition for Writ of Habeas Corpus was filed on May 28, 2014. The State filed
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entered its Order Granting Motion to Dismiss on August 22, 2014. On review, the Nevada
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Supreme Court entered its Order of Affirmance on March 11,2015 which was filed with this
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Court on April 9, 2015.
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C86-1138. Recently, Mr. Johnson filed two Petitions for Writ of Habeas Corpus : one
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in C86-1138 and another in CV19-00044.
The Court entered its Order Directing Transfer of
Docket and Closure of Case for the Petition filed in CV19-00044 and merged the filings into
C86-1138. Therefore, both Petitions are currently pending in the instant case (collectively
“Petition”).
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Howard Johnson vs The State of Nevada, Docket No. 18178 (Order Dismissing Appeal,
1 Timothy
March 30, 1988).
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AfiPXnSfUX B,P.
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The Petition under consideration now challenges the Judgment of Conviction,
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alleging two grounds for relief: (1) The judgment of conviction is void , and Mr. Johnson
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should be
discharged pursuant to NRS 34.480 and/or NRS 34.640; and (2) the United
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States Supreme Court’s holding in McCoy v. Lousiana , 138 S. Ct. 1500 (2018) retroactively
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7 I procedural bars. In response to the Petition, the State filed its Motion on July 19, 2019
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seeking dismissal because
Mr. Johnson was not represented by counsel at trial, thereby
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foregoing procedural history in mind, the Court turns to the merits of the
With the
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12 I Petition and addresses each ground for relief below.
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II.
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APPLICABLE LAW AND ANALYSIS.
A. GROUND ONE
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Mr. Johnson
contends his Judgment of Conviction in C86-1138 is void because the
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Court exceeded its jurisdiction by failing to appoint a new public defender to represent him
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pursuant to NRS 171 188(3)(b). Petition, p. 11. Mr. Johnson predicates Ground One on a
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confusing collection of void judgment legal standards applicable in federal civil , bankruptcy,
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II and criminal cases. Petition, p. 7-10.
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Mr. Johnson relies heavily on Ex parte Dela, 25 Nev. 346, 60 P. 217, 219 (1900)
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23 jj where the Nevada Supreme Court held a Court shall ascertain whether judgment is void by
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determining whether the Court exceeded its jurisdiction, and whether the process issued
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upon such judgment is void. Petition, p. 10-11. Mr. Johnson also relies on the holding in
26 I -Inhnson v. Zerbst, 58 S. Ct. 1019, 1025 (1938) where the United States Supreme Court
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held a
judgment of conviction is void if the accused is not represented by counsel . Petition,
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Mr. Johnson argues the United States Supreme Court also held a judgment of
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p. 10.
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conviction
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is void if the accused did not competently and intelligently waive his constitutional
rights. Petition, p. 10.
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After review of the record, this Court finds the process followed by the Court did not
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As the Ninth Circuit Court of Appeals has held: once a defendant
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vitiate its jurisdiction.
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makes an unequivocal request to proceed pro se, a court must hold a Faretta hearing to
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determine
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United States v. Audette. 923 F.3d 1227 (9th Cir. 2019) (referencing Farettay,
counsel.
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California.
95 S Ct. 2525, 2541 (1975)). In this case, the Court immediately conducted a
Faretta canvass of Mr. Johnson, in which he competently and intelligently elected to
represe
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whether defendant is knowingly and intelligently waiving his right to appointed
nt himself and receive technical advice from the Washoe County Public Defender s
Transcript of Proceedings, Sealed Portion, Feb. 18, 1987, p. 31:6 7; Transcript of
Proceedings, Unsealed Portion, Feb. 18, 1987, p . 26:16-21,32:17-25, 33:1-4.
Hence, Mr.
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Johnson’s volitional decisions do not warrant relief under Ex parte Dela , 25 Nev. at 346 or
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Johnson. 58 S. Ct. at 1025.
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Therefore, the Court finds Mr. Johnson fails to establish the Court exceeded its
jurisdiction by declining to appoint a new deputy public defender pursuant to NRS
171.188(3)(b). Accordingly, the Court finds Ground One of the Petition should be
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dismissed.
B. GROUND TWO
Mr. Johnson
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at 1500,
asserts the United States Supreme Court’s holding in McCoy, 138 S. Ct.
should retroactively apply to his Petition.2 Petition, p. 11. In McCoy, the United
2 Because Mr. Johnson asserts McCoy applies retroactively, the Court does not do a successive
petition analysis here.
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Appfroo/x R,P. 4
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1 I States Supreme Court held “[wjhen a
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defense’ is to maintain
client expressly asserts that the objective of his
innocence of the charged criminal acts, his lawyer must abide by that
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Specifically, Mr. Johnson
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claims his counsel refused to present his defense of
murder charge after withdrawing from representation of Mr.
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innocence to the first-degree
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Johnson due to ethical concerns. Petition, p
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constitutes a structur
12. Such a withdrawal, posits Mr. Johnson,
al error which undermined his counsels’ duty to develop a trial strategy
I most reflective of Mr. Johnson’s innocence. Petition, p. 13 14.
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The e
xtent of McCoy’s applicability, and the question of its retroactivity, are the
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12 subjects of other cases recently litigated in Nevada. See, 8-1 , Moore v. State, 77803-COA,
131 2019 WL 4689157, at *1 (Nev. App. Sept. 25, 2019) (finding McCoy did not apply to
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petitioner, assuming its retroactivity, after agreeing with counsel's trial strategy to admit guilt
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to felony murder to avoid death sentence); Howard_v , Baker, 316CV00631RCJCBC, 2019
WL 4346573, at *2 (D. Nev. Sept. 12, 2019) (explaining the Court’s inability to evaluate
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18 II petitioner’s McCoy claim due to the unsettled scope of its retroactivity); Pritchett v. Gentry,
191 217CV01694JADCWH, 2019 WL 2503944, at *1 (D. Nev. June 17, 2019) (also explaining
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the Court’s
inability to evaluate petitioner’s McCoy claim due to the unsettled scope of its
retroactivity).
Even considering, without deciding, the McCoy holding must be applied retroactively
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for his Petition, Mr. Johnson cannot establish its applicability
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and would confirm good cause
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Unlike the petitioner in McCoy, Mr.
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trial, he desired to
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Johnson articulately expressed on the record, prior to his
and would represent himself with technical advice from counsel
Transcript of Proceedings, Sealed Portion, Feb. 18, 1987, p. 31.6-7, Transcnptof
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Proceedings, Unsealed Portion, Feb. 18, 1987, p
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representing himself at trial, he had no
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objection.
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.26:16-21,32:17-25,33:1-4. By
attorney to concede his guilt to the jury over his
Distinctive from Mr. Johnson’s circumstances, McCoy applies to counsel-
represented persons during trial and not to self-represented litigants.
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Therefore, the
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Court finds Mr. Johnson fails to establish retroactive application of
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Accordingly, the Court finds Ground Two of the
Petition should be dismissed.
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III.
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CONCLUSION AND ORDER.
Based on the foregoing, the
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Court concludes Mr. Johnson has failed to demonstrate
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Court finds Respondent’s Motion should be granted.
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As such, the
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Accordingly, and good cause appearing,
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IT IS HEREBY ORDERED the State’s Motion to Dismiss Petition for Writ of Habeas
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Corpus (Post-Conviction) is GRANTED.
Dated this
Iday of December, 2019.
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/) PBFst/)/K E.filf
■■if'"
Iff
}
■ I
•t,
certificate of service
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of THE SECOND JUDICIAL DISTRICT COURT;
I certify that I am an employee
/£fday of December, 2019, I electronically filed the foregoing with the
that on the
Clerk of the Court system which will send a notice of electronic filing to the following:
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KEVIN NAUGHTON, ESQ.
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deposited in the County mailing system for postage and mailing with the
And, I
I United States Postal Service in Reno. Nevada, a true and correct copy of the attached
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document addressed as follows.
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Timothy Howard Johnson, #23766
Lovelock Correctional Center
1200 Prison Road
Lovelock, NV 89419
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CR86-1138
UNITED STATES COURT OF APPEALS
FILED
FEB 18 2021
FOR THE NINTH CIRCUIT
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TIMOTHY H. JOHNSON,
No.
19-70976
Applicant,
ORDER
v.
RENEE BAKER, Warden,
Respondent.
Before:
FERNANDEZ, BYBEE, and BADE, Circuit Judges.
The stay of this action, entered on March 5, 2020, is lifted.
The application for authorization to file a second or successive 28 U.S.C.
§ 2254 habeas corpus petition in the district court is denied. The applicant has not
made a prima facie showing under 28 U.S.C. § 2244(b)(2) that:
(A) the claim relies on a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously
unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and (ii) the facts
underlying the claim, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.
See Christian v. Thomas, 982 F.3d 1215, 1224-25 (9th Cir. 2020) (holding that the
Supreme Court has not made McCoy v. Louisiana, 138 S. Ct. 1500 (2018),
fippmorr CL, P-(
d
retroactive to cases on collateral review).
Any pending motions are denied as moot.
No further filings will be entertained in this case.
DENIED.
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19-70976
Additional material
from this filing is
available in the
Clerk's Office.
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