Bolen (Jason) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
JASON JEROME BOLEN, A/K/A No. 842.93
JASON J. BOLDEN, tri
'ILE
Appellant,
vs. SEP 1 5 2022
THE STATE OF NEVADA, A. BROWN
CLERK OF SL;PREME COURT
Res o ondent.
MIR) CLERK
ORDER OF REVERSAL AND REMAND
This is an appeal from a district court order denying a pro se
postconviction petition for a writ of habeas corpus.' Eighth Judicial District
Court, Clark County; Joseph Hardy, Jr., Judge.
On August 27, 2019, the district court convicted appellant,
pursuant to a jury verdict, of four counts of attempted murder with use of a
deadly weapon, seven counts of discharging a firearm at or into an occupied
structure, vehicle, aircraft, or watercraft, battery with use of a deadly
weapon, and ownership or possession of a firearm by a prohibited person.
The district court sentenced appellant to serve an aggregate term of 336
months to 1,920 months in prison.
Appellant appealed the judgment of conviction. On July 8,
2021, a panel of this court affirmed the judgment of conviction. Bolden v.
State, 137 Nev., Adv. Op. 28, 491 P.3d 19 (2021).2 On September 23, 2021,
'Having considered the pro se brief filed by appellant, we conclude
that a response is not necessary. NRAP 46A(c). This appeal therefore has
been submitted for decision based on the pro se brief and the record. See
NRAP 34(0(3).
2 Therecord indicates some confusion regarding appellant's last name
as the judgment of conviction and appellate proceedings refer to him as
Jason Bolden, a.k.a. Jason Bolen, while the postconviction proceedings refer
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to him as Jason Bolen, a.k.a. Jason Bolden. The record on appeal indicates
OF that both names were used at various times during the trial proceedings.
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that same panel denied a petition for rehearing but entered an amended
opinion. Bolden v. State, 137 Nev., Adv. Op 28, 499 P.3d 1200 (2021). On
February 3, 2022, the court granted en banc reconsideration, and on August
4, 2002, the court affirmed the judgment of conviction in an unpublished
decision. Bolden v. State, No. 79715, 2022 WL 3151746 (Nev. Aug. 4, 2022)
(Order of Affirmance).
On October 4, 2021, shortly after the opinion and amended
opinion were entered but before the decision to grant en banc
reconsideration was entered, appellant filed a pro se postconviction petition
for a writ of habeas corpus and motion for the appointment of counsel. The
State opposed the petition and motion. Appellant subsequently attempted
to file a motion to voluntarily dismiss the petition without prejudice, but the
district court clerk filed the motion in the criminal case rather than the
habeas case. The clerk then issued a notice rejecting the motion because
appellant was represented by counsel in the criminal case and forwarded
the motion to his appellate attorney. No further action appears to have been
taken on that motion. On January 27, 2022, the district court summarily
denied the petition for a writ of habeas corpus and denied the motion to
appoint counsel. This appeal followed.
Appellant argues that the court erred in failing to consider his
motion to voluntarily dismiss the postconviction petition which has
prevented him from meaningfully litigating his claims. Appellant correctly
asserts that the district court clerk erred in not filing his motion to dismiss
in the habeas case because a postconviction petition for a writ of habeas
corpus is an independent proceeding that may be litigated
contemporaneously with a direct appeal. See NRS 34.724(2)(a) (providing
that a habeas corpus petition is not a substitute for and does not affect the
remedy of direct review); NRS 34.730(3) (providing that the clerk of the
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district court shall file a postconviction petition as a new action, separate
and distinct from any original proceeding in which a conviction has been
had); Daniels v. State, 100 Nev. 579, 580, 688 P.2d 315, 316 (1984)
(recognizing that a postconviction proceeding is separate from the direct
appeal), abrogated on other grounds by Varwig v. State, 104 Nev. 40, 752
P.2d 760 (1988). The motion concerned the postconviction petition—not the
criminal case—thus, it should have been filed in that case. This error
prevented the district court from timely entertaining appellant's request.
Compounding this procedural error, the district court's order denying the
habeas petition does not contain findings of fact and conclusions of law as
required by NRS 34.830(1) ("Any order that finally disposes of a petition,
whether or not an evidentiary hearing was held, must contain specific
findings of fact and conclusions of law supporting the decision of the court.").
Further, based on our review of the record, we conclude that the
district court abused its discretion in denying the petition without
appointing postconviction counsel. NRS 34.750 provides for the
discretionary appointment of postconviction counsel and sets forth the
following factors which the court may consider in deciding whether to
appoint counsel: the petitioner's indigency, the severity of the consequences
to the petitioner, the difficulty of the issues presented, whether the
petitioner is unable to comprehend the proceedings, and whether counsel is
necessary to proceed with discovery. The decision to appoint counsel is not
necessarily dependent upon whether a petitioner raises issues in a petition
which, if true, would entitle the petitioner to relief. Renteria-Novoa v. State,
133 Nev. 75, 77, 391 P.3d 760, 762 (2017).
Appellant was represented by appointed counsel at trial and on
appeal, and he moved for the appointment of counsel for the postconviction
proceedings. Appellant is serving a significant sentence, and his conviction
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arose from a jury trial with potentially complex legal issues. Appellant's
petition also contained claims requiring the development of facts outside
the record, including an allegation that trial counsel failed to interview an
alibi witness and pursue an alibi defense. The failure to appoint
postconviction counsel in this case prevented a meaningful litigation of the
petition. Thus, we reverse the district court's order denying appellant's
petition and remand this matter for the appointment of counsel to assist
appellant in the postconviction proceedings.3
It is so ORDERED.4
•
arraguirre
Sr.J.
cc: Hon. Joseph Hardy, Jr., District Judge
Jason Jerome Bolen
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 Inlight of this court's recent decision resolving appellant's direct
appeal, and to avoid further confusion, the district court is not required to
take any action on the request to voluntarily dismiss the petition at this
time. Rather, the district court should allow postconviction counsel an
opportunity to supplement the pro se petition already filed in the district
court. NRS 34.750(3).
4 The Honorable Mark Gibbons, Senior Justice, participated in the
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decision of this matter under a general order of assignment.
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