Appeal from a district court order dismissing a post-conviction petition for a writ of habeas corpus. Second Judicial District Court, Washoe County; Connie J. Steinheimer, Judge.
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 Amicus 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.
Hardesty, J. We concur: Gibbons, C.J., Pickering, J., Parraguirre, J., Douglas, J. CHERRY, J., with whom SAITTA, J., agrees, dissenting.
BEFORE THE COURT EN BANC.
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, 182 L.Ed.2d 272 (2012), the ineffective assistance of post-conviction counsel may constitute good cause under NRS 34.726(1) and NRS 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 NRS 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, 122 Nev. 1654, 178 P.3d 738 (Order of Affirmance, 2006). The remittitur issued on February 7, 2006. Brown then filed a timely post-conviction petition for a writ of 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, 125 Nev. 1021, 281 P.3d 1157 (Order of Affirmance, 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, 182 L.Ed.2d 272 (2012). The district court dismissed Brown's petition as procedurally barred pursuant to NRS 34.726(1) and NRS 34.810 because the petition was untimely and ...