Caheuc (Hugo) v. State C/W 64685 ( 2015 )

 Appellant's petition was also successive and an abuse of the writ. 2 See
NRS 34.810(2). Appellant's petition was procedurally barred absent a
demonstration of good cause and actual prejudice. See NRS 34.726(1);
NRS 34.810(3). Moreover, because the State specifically pleaded laches,
appellant was required to overcome the rebuttable presumption of
prejudice to the State. NRS 34.800(2).
First, appellant argues that he has good cause to excuse the
procedural bars because he did not receive his files from counsel until
2008. Appellant fails to demonstrate good cause. Appellant did not
attempt to obtain his files from counsel until nearly one year after entry of
the judgment of conviction and thus has not demonstrated diligence in
attempting to obtain his files. Accordingly, any delay in obtaining the files
does not demonstrate good cause.
Second, relying in part on Martinez v. Ryan, 566 U.S. 132S. Ct. 1309 (2012), appellant argues that he has good cause to excuse the
procedural bars because he did not have counsel in the first post-
conviction proceedings. We conclude that this argument lacks merit. The
appointment of counsel was discretionary in the first post-conviction
proceedings, see NRS 34.750(1), and appellant fails to demonstrate an
abuse of discretion. Further, this court has recently held that Martinez
does not apply to Nevada's statutory post-conviction procedures. See
Brown v. McDaniel, 130 Nev. , 331 P.3d 867, 874 (2014).
2Israel v. State, Docket No. 52609 (Order Dismissing Appeal,
November 19, 2008).
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Third, appellant argues that he has good cause to excuse the
procedural bars because the State violated its duty to provide the defense
with the victim's medical records and the exculpatory statements of
witnesses, in violation of Brady v. Maryland, 373 U.S. 83 (1963). A Brady
violation occurs when "the evidence at issue is favorable to the accused;
the evidence was withheld by the state, either intentionally or
inadvertently; and prejudice ensued, i.e., the evidence was material."
Mazzan v. Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000). "[P]roving
that the State withheld the evidence generally establishes cause, and
proving that the withheld evidence was material establishes prejudice."
State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003). In assessing the
materiality of withheld evidence in the context of a guilty plea, the court
must consider the following factors:
(1) the relative strength and weakness of the
State's case and the defendant's case; (2) the
persuasiveness of the withheld evidence; (3) the
reasons, if any, expressed by the defendant for
choosing to plead guilty; (4) the benefits obtained
by the defendant in exchange for the plea; and (5)
the thoroughness of the plea colloquy.
State v. Huebler, 128 Nev. „ 275 P.3d 91, 99 (2012). Appellant fails
to demonstrate good cause and prejudice. Appellant merely speculates
that the witnesses who prepared the declarations in support of his petition
had previously provided similar information to the State, and accordingly,
he fails to demonstrate that the State withheld any evidence contained in
the declarations. To the extent that the victim's medical records, which
showed no physical injury to the victim, were favorable to the defense and
withheld by the State, they were not material. Although the State's case
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was not strong and the plea colloquy was not particularly thorough, the
medical records showing no injury are not particularly persuasive where,
as here, the alleged sexual assault was based on a brief touching of the
victim's genitals that would not be expected to result in physical injury.
Further, appellant received a significant benefit in exchange for his guilty
plea in that he was sentenced for the sexual assault to a term of 5 to 20
years when it should have been a term of 15 to 40 years or life with the
possibility of parole after 20 years. See 2003 Nev. Stat., ch. 461, § 1, at
2825-26.
Appellant thus fails to demonstrate good cause to overcome
the untimely, successive, and abusive nature of his petition. Those
procedural bars may nevertheless be overcome by demonstrating that the
failure to consider the petition would result in a fundamental miscarriage
of justice. Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
This may be demonstrated by showing that appellant is actually innocent,
that is, that "'it is more likely than not that no reasonable juror would
have convicted" him "in light of all the evidence,' both new and
previously presented. Bousley v. United States, 523 U.S. 614, 623 (1998)
(quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)); see also Mazzan v.
Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). Yet even the
demonstration of actual innocence would not, alone, overcome the
rebuttable presumption of prejudice to the State occasioned by the delay in
filing the instant petition. To rebut the presumed prejudice, appellant
must demonstrate both actual innocence and "that the petition is based
upon grounds of which the petitioner could not have had knowledge by the
exercise of reasonable diligence before the circumstances prejudicial to the
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State occurred." NRS 34.800(1); see also NRS 34.800(2). Appellant alleges
facts that are not belied by the record, if true, may demonstrate actual
innocence and overcome the presumption of prejudice to the State such
that he would be entitled to have his underlying constitutional claims
heard on their merits.
The district court's finding that the victim's declaration could
have been discovered earlier with the exercise of reasonable diligence is
not supported by evidence in the record. Rather, the evidence suggests the
contrary. Appellant's post-conviction investigator noted that investigators
had been in contact with the victim's parents since January 2010, that
this most recent investigator had been in contact with them since April
2012, and that the parents had refused to allow the investigator to speak
with the victim before March 2013. The parents' apparent reluctance to
allow the appellant's post-conviction team to speak with the victim
suggests that appellant may not have been able to previously discover the
victim's statement disavowing any penetration, even with the exercise of
reasonable diligence.
The district court's conclusion that appellant's claim of
fundamental miscarriage of justice was "unpersuasive" was also not
supported by evidence in the record. 3 The evidence against appellant,
3 The district court made no findings of fact to support this
conclusion, although it cited, without any analysis, to Callier v. Warden,
which established the standard for analyzing recantation testimony in a
post-conviction petition for a writ of habeas corpus. 111 Nev. 976, 989,
901 P.2d 619, 627 (1995). To the extent the district court implicitly found
that the victim's declaration was not reliable because it was a recantation,
such a finding is not supported by the evidence in the record. The victim's
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insofar as contained in the record before this court, was primarily the four-
year-old victim's statement to the police and testimony at the preliminary
hearing, as well as appellant's statement to the police. Appellant told the
detective that he had accidentally hit the victim with a piece of wood "in
her vagina," the victim was going to cry so he placed her on the edge of the
van into which he was loading the wood, and he pulled out her shorts and
rubbed her "vagina" briefly under her panties. When asked whether his
finger could have penetrated a little bit past the victim's vaginal lips,
appellant stated that he could not say. The victim told the detective that
appellant had grabbed her "tail" and, when asked what happened, related
that appellant put his hands inside her pants but over her panties. At the
preliminary hearing, the victim testified that appellant "poked" her under
her clothes with his finger, that "[i]t hurt," and that she was never inside
the van. The victim's mother testified that the victim told her the
following morning that it hurt when she urinated.
In support of his actual-innocence claim, appellant presents
two declarations by the victim, together relating that appellant had
accidentally hit her in her "private parts" with a piece of wood, she cried,
appellant placed her in the van and rubbed her "private parts" so it could
feel better, the act was not sexual in nature, and at no point did any part
of appellant's body enter her "genital opening" Based on the record before
this court, the victim's declarations, if credible, make it more likely than
...continued
new declarations are not substantively inconsistent with either her earlier
statement to the police or her testimony at the preliminary hearing.
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not that no reasonable juror would have convicted appellant of sexual
assault because the declarations establish the absence of the element of
"sexual penetration," see NRS 200.366(1), or of kidnapping because the
movement was thus not for the purposes of committing sexual assault, see
NRS 200.310(1). 4
Because appellant's claims, if true, could overcome the
presumption of prejudice to the State, demonstrate actual innocence to
overcome the remaining procedural bars, and entitle him to have the
merits of his case addressed below, the district court erred in denying the
petition as procedurally barred without first conducting an evidentiary
hearing. Further, because the actual-innocence inquiry concerns factual
innocence, the State must be allowed to rebut appellant's claim of actual
innocence with "any admissible evidence of [appellant's] guilt even if that
evidence was not presented during [his] plea colloquy." Bousley, 523 U.S.
at 624. For the foregoing reasons, we reverse the district court's order
dismissing the petition as procedurally barred for the failure to overcome
the presumption of prejudice to the State arising out of laches and to
demonstrate actual innocence, and we remand for the district court to
conduct an evidentiary hearing and make the appropriate findings.
4Appellant need not demonstrate that he is actually innocent of the
lewdness charge because it is not a more serious charge that the State
forwent in the course of plea bargaining. See Bousley, 523 U.S. at 624.
Since the only alleged criminal contact between appellant and the victim
was the single contact with the victim's genitals, appellant could not have
been convicted of both sexual assault and lewdness. See Crowley v. State,
120 Nev. 30, 31, 83 P.3d 282, 284 (2004). Thus in pursuing the sexual
assault charge, the State did not forgo a more serious charge.
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Docket No. 64685
This court has recently held that post-conviction motions to
withdraw guilty pleas should be construed as post-conviction petitions for
a writ of habeas corpus. See Harris v. State, 130 Nev. , , 329 P.3d
619, 628 (2014). We note that the claims appellant raised in his motion
are substantially similar to those raised in his post-conviction petition for
a writ of habeas corpus, and we conclude that the district court did not err
in denying the motion.
For the foregoing reasons, we
ORDER the judgment of the district court in Docket No. 64685
AFFIRMED and the judgment of the district court in Docket No. 64393
REVERSED AND REMAND that matter to the district court for
proceedings consistent with this order.
Parraguirre
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Douglas
ui J.
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erry
cc: Hon. Michelle Leavitt, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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