Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Appellant.
Delbert M. Greene, Ely, in Proper Person.
Before HARDESTY, PARRAGUIRRE and CHERRY, JJ.
The district court determined that respondent Delbert M. Greene received ineffective assistance of counsel at his resentencing hearing and granted his untimely and successive fifth post-conviction petition for a writ of habeas corpus. The district court also directed Greene's counsel to draft the order granting the petition but refused to provide an explanation for its decision. We take this opportunity to reiterate that when the district court directs a prevailing party to draft an order resolving a post-conviction petition for a writ of habeas corpus, it must provide sufficient direction regarding the basis for its decision to enable the prevailing party to draft the order. Because we also conclude that the district court erroneously determined that Greene established good cause sufficient to excuse the procedural bars to a consideration of his petition on the merits,
we reverse the order granting his petition and affording him a new sentencing hearing.
On June 7, 2002, Greene participated in the robbery of a change attendant at a grocery store in Las Vegas, and after a three-day jury trial, he was convicted of burglary while in the possession of a deadly weapon (count I), conspiracy to commit robbery (count II), and robbery with the use of a deadly weapon (count III). At the sentencing hearing, the trial court imposed a prison term of 36-156 months for count I, a consecutive prison term of 18-60 months for count II, and a prison term of 48-180 months plus an equal and consecutive term for the deadly weapon enhancement for count III; the court, however, erroneously ordered the sentence for count III to run concurrently with count I but consecutively to the sentence for count II even though the sentence for count II was ordered to run consecutively to the sentence for count I. Additionally, the written judgment of conviction failed to mention the sentence imposed for the deadly weapon enhancement. We identified these errors on direct appeal from the judgment of conviction and remanded the case to the trial court for a new sentencing hearing. Greene v. State, Docket No. 42110, 120 Nev. 1244, 131 P.3d 604 (Order Affirming in Part and Remanding, May 18, 2004).
On remand, the trial court imposed the prison terms for the three counts to run consecutively and entered an amended judgment of conviction. Greene appealed. We rejected Greene's claims and affirmed the amended judgment of conviction. Greene v. State, Docket No. 43628, 121 Nev. 1129, 152 P.3d 771 (Order of Affirmance, August 24, 2005). Notably, neither party at the time provided this court with the transcript of the resentencing hearing for review.
While Greene's appeal from the amended judgment of conviction was pending, he filed his first, and only timely, post-conviction petition for a writ of habeas corpus in district court. Greene filed the petition in proper person and raised several ineffective-assistance-of-counsel claims and direct-appeal claims, including an issue that he previously raised on direct appeal (the admission of a letter that he wrote to his former codefendant), but he did not raise any issues pertaining to the resentencing hearing or amended judgment of conviction. The petition was considered by the judge who presided over the trial. The judge declined to appoint counsel to represent Greene or conduct an evidentiary hearing, see NRS 34.750(1); NRS 34.770, and with very little discussion of the issues raised, entered an order denying his petition. We affirmed the order. Greene v. State, Docket No. 45127, 121 Nev. 1129, 152 P.3d 771 (Order of Affirmance, September 16, 2005).
Nearly three years later, Greene filed his second postconviction petition for a writ of habeas corpus in district court. Like the first petition, this one was filed in proper person. This time, Greene raised issues pertaining to his resentencing hearing. Among other things, Greene claimed that his appointed counsel failed to appear for the resentencing hearing and, instead, sent an associate who was not prepared or familiar with his case. Greene also claimed that his sentence was improperly increased by the amended judgment of conviction. To excuse the procedural bars to the petition, Greene claimed he was unaware that his collateral challenge to the conviction in federal court had been resolved or that he could proceed in state court while the federal proceeding was pending. Once again, the petition was heard by the judge who presided over the trial, and the judge declined to appoint counsel to represent Greene or conduct an evidentiary
hearing, and denied his petition after finding " it is time barred with no good cause shown for [the] delay" or its successiveness. See NRS 34.726(1); NRS 34.810(1)(b), (2)-(3). On appeal, we agreed that Greene failed to demonstrate that an impediment external to the defense prevented him from complying with the procedural default rules, see Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003); see also Colley v. State, 105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989), abrogated by statute on other grounds as recognized by State v. Huebler, 128 Nev.
__, __n. 2, 275 P.3d 91, 95 n.2 (2012), however, we also identified a clerical error in the amended judgment of conviction. The amended judgment of conviction ordered " Count III TO RUN CONSECUTIVE to Counts II and III" rather than consecutively to counts I and II. Therefore, while we affirmed the order denying Greene's petition, we ...