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,
Carling Law Office, PC, and Matthew D. Carling, Las Vegas,
Paul Laxalt, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and Jonathan E. Van Boskerck,
Chief Deputy District Attorney, Clark County, for Respondent.
SILVER, C.J., TAO and GIBBONS, JJ.
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.
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.
AND FACTUAL HISTORY
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).
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
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 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
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.
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.
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.
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 ...