Manley (Giles) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
GILES MANLEY A/K/A GILES No. 63120
KENNETH SHARIF MANLEY,
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
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TRACE K. LINDEMAN -
CLERK or
SUPREME COURT
BY -
DEPUTY CLERK -
ORDER OF AFFIRMANCE
This is an appeal from an order of the district court denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; Douglas W. Herndon, Judge.
Appellant Giles Manley filed his petition on September 26,
2012, more than eight years after issuance of the remittitur on direct
appeal on June 29, 2004. Therefore, Manley's petition was untimely filed.
See NRS 34.726(1). Manley's petition was also successive because he had
previously filed two postconviction petitions for a writ of habeas corpus,'
and it constituted an abuse of the writ as he raised claims new and
different from those raised in his previous petitions. See NRS
34.810(1)(b)(2); NRS 34.810(2). Manley's petition was procedurally barred
absent a demonstration of good cause and prejudice. See NRS 34.726(1);
NRS 34.810(1)(b); NRS 34.810(3).
'Manley v. State, Docket No. 53056 (Order of Affirmance, April 8,
2010); Manley v. State, Docket No. 48319 (Order of Affirmance, July 17,
2007).
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Manley argues that Miller v. Alabama, 567 U.S. , 132 S.
Ct. 2455 (2012), rendered his sentence unconstitutional and provided him
with good cause to excuse the untimely filing of his petition. However,
while his appeal was pending, the Legislature enacted A.B. 267. We
conclude that A.B. 267 provides Manley with any relief Miller arguably
affords as it makes him parole eligible within his lifetime. See
Montgomery v. Louisiana, U .S. , 136 S. Ct. 718, 735 (2016);
State v. Boston, 131 Nev., Adv. Op. 98, 363 P.3d 453 (2015). Therefore, he
failed to demonstrate that Miller provides good cause to excuse the
procedural bars or that he would suffer prejudice from the failure to
consider this claim.
Manley also contends that the ineffectiveness of his prior
counsel constitutes good cause to excuse his procedural default. He
contends that the decision in Martinez v. Ryan, 566 U.S. , 132 S. Ct.
1309 (2012), mandates that the ineffectiveness of postconviction counsel
constitutes good cause. We conclude that this argument lacks merit.
Manley's claims of ineffective assistance of trial and appellate counsel do
not constitute adequate cause because those claims are untimely and
successive. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506
(2003) ("[T]o constitute adequate cause, the ineffective assistance of
counsel claim itself must not be procedurally defaulted."). The ineffective
assistance of postconviction counsel is not good cause in the instant case
because the appointment of counsel in the prior postconviction proceedings
was not statutorily or constitutionally required. See Crump v. Warden,
113 Nev. 293, 303, 934 P.2d 247, 253 (1997); McKague v. Warden, 112 Nev.
159, 164, 912 P.2d 255, 258 (1996). Further, we have recently held that
Martinez does not apply to Nevada's statutory postconviction procedures,
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see Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 872-73
(2014), and thus, Martinez does not provide good cause for this untimely
and successive petition. Therefore, the district court did not err in
denying this claim without conducting an evidentiary hearing.
Lastly, Manley contends that the failure to consider the claim
that his sentence violates the Eighth Amendment prohibition against
cruel and unusual punishment amounts to a fundamental miscarriage of
justice. We disagree. Manley's claim relates solely to the procedure
utilized in sentencing him to life without the possibility of parole. It does
not implicate whether Manley is "actually innocent of the crime or is
ineligible for the death penalty." Pellegrini v. State, 117 Nev. 860, 887, 34
P.3d 519, 537 (2001). Therefore, the district court did not err in
dismissing this claim without conducting an evidentiary hearing.
Having considered Manley's contentions and concluding that
they lack merit, we
ORDER the judgment of the district court AFFIRMED.
"--- , C. J.
Parraguirre
J.
CHERRY, J., dissenting:
I would extend the equitable rule recognized in Martinez to
this case because appellant was convicted of murder and is facing a severe
sentence. See Brown, 130 Nev., Adv. Op. 60, 331 P.3d 867 (Cherry, J.,
dissenting). Accordingly, I would reverse and remand for the district court
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to determine whether appellant can demonstrate a substantial underlying
ineffective-assistance-of-trial-counsel claim that was omitted due to the
ineffective assistance of post-conviction counsel. I therefore dissent.
J.
cc: Hon. Douglas W. Herndon, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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