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Harris v. State

Supreme Court of Nevada

November 16, 2017

LAMAR ANTWAN HARRIS, Appellant,
v.
THE STATE OF NEVADA, Respondent.

         Appeal from an order of the district court dismissing a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge.

          Carling Law Office, PC, and Matthew D. Carling, Las Vegas, for Appellant.

          Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Jonathan E. Van Boskerck, Chief Deputy District Attorney, Clark County, for Respondent.

          BEFORE SILVER, C.J., TAO and GIBBONS, JJ.

          OPINION

          GIBBONS, J.

         This case arises from an untimely postconviction petition for a writ of habeas corpus stemming from a conviction, entered pursuant to a jury verdict, of battery with the use of a deadly weapon resulting in substantial bodily harm. In his petition and supplement, appellant Lamar Antwan Harris alleged he had good cause for the delay in filing the petition because he believed counsel had filed a petition on his behalf, his belief was reasonable, and he filed the petition within a reasonable time of discovering his petition had not been filed. The district court dismissed the petition as procedurally time-barred.

         In this appeal, we consider whether counsel's affirmative misrepresentation regarding filing a postconviction petition and subsequent abandonment of the petitioner can be an impediment external to the defense to satisfy cause for the delay under NRS 34.726(1)(a) for filing an untimely petition. We conclude it can. We hold that to demonstrate cause for the delay under NRS 34.726(1)(a) in such a circumstance, a petitioner must show: (1) the petitioner believed counsel filed a petition on petitioner's behalf; (2) this belief was objectively reasonable; (3) counsel abandoned the petitioner without notice and failed to timely file the petition; and (4) the petitioner filed the petition within a reasonable time after the petitioner should have known counsel did not file a petition. Because we conclude Harris demonstrated cause for the delay under the approach set forth above, we reverse the district court's order and we remand for further proceedings.

         PROCEDURAL AND FACTUAL HISTORY

         Harris was convicted of battery with the use of a deadly weapon resulting in substantial bodily harm and was sentenced to 70 to 175 months in prison. After sentencing, Harris opted to have his previous counsel withdraw and he hired new counsel, Leslie Park, to represent him in his post-trial proceedings. Through Park, Harris filed a direct appeal from his judgment of conviction. Harris' conviction was affirmed on direct appeal. Harris v. State, Docket No. 59817 (Order of Affirmance, Dec. 13, 2012).

         More than two years after the remittitur on direct appeal issued, Harris filed an untimely pro se postconviction petition for a writ of habeas corpus. As good cause to excuse the untimely filing, Harris claimed he reasonably believed Park had filed a petition on his behalf, and when he discovered she had not, he filed his petition within a reasonable time after that discovery.

         The district court concluded Harris might be able to establish good cause to overcome the procedural bar and appointed counsel to supplement Harris' petition. In the supplement, counsel argued for an extension of the Hathaway[1] reasoning regarding good cause when counsel fails to file a direct appeal from a judgment of conviction. Specifically, counsel argued cause to excuse the procedural time bar should exist in situations where a defendant reasonably believes counsel filed a postconviction petition on his behalf, and the petitioner files a petition within a reasonable time of realizing counsel did not file a petition.

         The district court scheduled an evidentiary hearing on Harris' good cause claim. However, on the scheduled hearing date, a senior judge presided over the proceedings, declined to hold an evidentiary hearing, and denied the petition. The district court subsequently granted Harris' motion for reconsideration and held an evidentiary hearing.

         At the hearing, Harris testified he hired Park to represent him for both his appeal and his postconviction petition and claimed they agreed to a fee arrangement of $8, 000 for handling both cases. After initially denying she agreed to represent Harris for his postconviction petition, Park agreed she was retained for both the direct appeal and the petition. She also agreed the fee was $8, 000, but stated Harris had only paid her about half of that.

         Harris testified he received a copy of a document drafted by Park entitled "Petition for Writ of Habeas Corpus" approximately five months after the remittitur issued in his direct appeal. The petition was signed by Park and included information causing it to appear as though it had been served on the Clerk of the Supreme Court, the Clark County District Attorney, and the Nevada Attorney General, The caption also indicated it was being filed in the Nevada Supreme Court.

         Harris testified that sometime later he was informed by a fellow inmate his petition was filed in the wrong court. In December of 2013, before the expiration of the one-year time limit for filing a postconviction petition, Harris contacted counsel to point this error out and she told him she would immediately correct it ...


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