Williams (Jessica) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
JESSICA WILLIAMS, No. 66579
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent. FEB 2 6 2016
TRACE K. LtNDEMAN
CLER OP 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; Michelle Leavitt, Judge.
Appellant Jessica Williams filed her second postconviction
petition for a writ of habeas corpus on June 28, 2011. Williams raised
several claims in her second petition: (1) she was not provided fair notice
that she would be subject to criminal liability for driving with marijuana
metabolite in her blood or urine, (2) her trial and appellate counsel were
ineffective for failing to argue that marijuana metabolite was not a
prohibited substance as a matter of state law, (3) her trial and appellate
counsel were ineffective for failing to argue that Williams did not have fair
notice that she would be subject to criminal liability for driving with
marijuana metabolite in her blood or urine, and (4) this court's decision in
Williams v. State, 120 Nev. 473, 93 P.3d 1258 (2004) (Williams II) was an
act of judicial expansion depriving her of fair notice. Williams' petition
was procedurally defective in several respects.
Williams' petition was filed more than 8 years after issuance
of the remittitur on direct appeal on January 3, 2003. Williams v. State,
118 Nev. 536, 50 P.3d 1116 (2002). Thus, her petition was untimely filed.
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See NRS 34.726(1). Williams' claim that she did not have fair notice was
subject to the waiver bar (NRS 34.810(1)(b)) because this claim could have
been raised on direct appeal. Williams' claims that she did not have fair
notice and her trial and appellate counsel were ineffective were an abuse
of the writ as they were new and different from the claim litigated in her
first petition. See NRS 34.810(1)(b)(2); NRS 34.810(2). Williams could
have raised her judicial expansion claim in a petition for rehearing in
Williams II. Williams' petition was procedurally barred absent a
demonstration of good cause and actual prejudice. See NRS 34.726(1);
NRS 34.810(1)(b); NRS 34.810(3).
Good Cause
1. Postconviction counsel's conflict of interest cannot provide good cause.
The district court determined that Williams demonstrated
good cause to excuse her late and successive petition because her
postconviction counsel in the first proceedings had a conflict of interest as
they represented her at trial and on appeal. The State argues that this
decision was incorrect because there was no right to counsel in the
postconviction proceedings and thus no right to the effective assistance of
counsel. We agree.
This court has recognized that good cause must afford a legal
excuse. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). In
order to demonstrate good cause, a petitioner must show that an
impediment external to the defense prevented her from complying with
the procedural rules. Id. A claim of ineffective assistance of counsel may
provide good cause but only where there is a right to counsel (statutory or
constitutional) and the right to the effective assistance of counsel, see
Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997); McKague
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v. Warden, 112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996), and only
where the good cause claim explains the procedural defects and is not
itself procedurally barred, Hathaway, 119 Nev. at 252, 71 P.3d at 506; see
also Edwards v. Carpenter, 529 U.S. 446, 451, 453 (2000) (explaining that
an ineffective-assistance-of-counsel-good-cause argument must not itself
be procedurally defaulted); Murray v. Carrier, 477 U.S. 478, 488 (1986)
(explaining that a petitioner may demonstrate good cause where the
procedural default is the result of ineffective assistance of counsel).
A conflict-of-interest claim is derived from a claim of
ineffective assistance—it is counsel's breach of the duty of loyalty that
gives rise to a claim that counsel was ineffective due to a conflict of
interest. See Glasser v. United States, 315 U.S. 60, 70, 75-76 (1942)
(framing a conflict-of-interest claim as a claim that the defendant was
denied the effective assistance of counsel); Holloway v. Arkansas, 435 U.S.
475, 482-83 (1978) (same); Cuyler v. Sullivan, 446 U.S. 335, 345, 348-50
(1980) (same); Strickland v. Washington, 466 U.S. 668, 688, 692 (1984)
(same); Mickens v. Taylor, 535 U.S. 162, 166, 175 (2002) (same); Mannon
v. State, 98 Nev. 224, 226, 645 P.2d 433, 434 (1982) (framing claim as "his
trial attorney's conflicting duties operated to deny him his sixth
amendment right to effective assistance of counsel"); Hayes v. State, 106
Nev. 543, 556, 797 P.2d 962, 970 (1990) (acknowledging that this court has
allowed ineffective-assistance-of-counsel claims on direct appeal when
they relate to a conflict of interest), overruled on other grounds by Ryan v.
Eighth Judicial Dist. Court, 123 Nev. 419, 168 P.3d 703 (2007). A conflict-
of-interest claim thus requires there be a right to counsel and a right to
the effective assistance of counsel. In Nevada, there is no constitutional or
statutory right to postconviction counsel and no right to the effective
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assistance of postconviction counsel in non-capital cases. See Brown v.
McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 870 (2014). Because there
is no constitutional or statutory right to postconviction counsel and no
right to the effective assistance of postconviction counsel, postconviction
counsel's conflict of interest cannot provide good cause in Nevada. 1
Several federal courts have reached a similar conclusion. See Weeks v.
Angelone, 176 F.3d 249, 273-74 (4th Cir. 1999); Williams v. Thaler, 602
F.3d 291, 308-09 (5th Cir. 2010); Bonin v. Calderon, 77 F.3d 1155, 1159-60
(9th Cir. 1996); Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996);
Nevius v. Sumner, 105 F.3d 453, 459-60 (9th Cir. 1996); Ortiz v. Stewart,
149 F.3d 923, 932-33 (9th Cir. 1998).
Further, Williams waited too long to file her second petition.
We find unavailing Williams' argument that any delay should be
measured from the time that her counsel with an alleged conflict was
removed and new conflict-free counsel was appointed in the federal case as
her conflict-of-interest-good-cause argument was reasonably available to
'The district court mistakenly relied upon United States v. Del
Muro, 87 F.3d 1078 (9th Cir. 1996) and other out-of-state cases in
determining that there was an inherent conflict of interest. First, conflict-
of-interest jurisprudence requires Williams to demonstrate an actual
conflict of interest adversely affected counsel's performance, and it is
insufficient to simply argue that there was an inherent conflict. See
Sullivan, 446 U.S. at 348, Strickland, 466 U.S. at 692. More importantly,
all but 2 of the cited cases involved situations where there was a right to
counsel. In the 2 cases involving postconviction proceedings, Roberts v.
State, 141 So. 3d 1139 (Ala. Crim. App. 2013), and People v. Edwards, 497
N.E.2d 1218 (Ill. App. 1986), vacated by 521 N.E.2d 939 (Ill. 1988), neither
of these cases is persuasive as there is no indication that these states have
similar rules regarding the appointment of postconviction counsel. And
notably, the Edwards case was vacated in its entirety.
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her within one year from the decision in Williams II. Williams was on
notice in 2003 in the first postconviction proceedings that there was an
issue relating to a conflict of interest with her postconviction counsel.
Even discounting this early notice, Williams was also made aware of the
conflict-of-interest issue in 2009 when it was raised in the context of the
federal habeas corpus proceedings as providing good cause. See Williams
v. Bodo, No. 2:04-cv-01620-KJD-LRL (D. Nev. March 5, 2009). A party
may not delay in presenting a good cause argument once the party is
aware of the factual circumstances giving rise to the claim. See
Hathaway, 119 Nev. at 253, 71 P.3d at 506 (recognizing that a good cause
argument must be raised in a reasonable time and all claims reasonably
available must be raised in a timely fashion).
Finally, we note a practical limitation of this good cause
argument. Even assuming that postconviction counsel's conflict of interest
could provide good cause, this argument would only provide good cause for
raising claims of ineffective assistance of trial and appellate counsel—
claims allegedly not raised due to postconviction counsel's conflict of
interest in the first postconviction proceedings. Williams' conflict-of-
interest argument would not provide good cause for her claim that she was
not provided fair notice that she was prohibited from driving with
marijuana metabolite as it does not explain why this claim was not raised
previously. The alleged conflict of interest further does not explain why
Williams did not litigate her judicial expansion claim in a timely fashion
from the decision in Williams IL A claim that postconviction counsel was
ineffective will not provide good cause for a late and successive petition.
See McKague, 112 Nev. at 163-65, 912 P.2d at 258; Crump, 113 Nev. at
303, 934 P.2d at 253; Brown, 130 Nev., Adv. Op. 60, 331 P.3d at 870.
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2. Williams' equal protection argument does not provide good cause.
The district court also determined that Williams had
demonstrated good cause because her right to equal protection was
violated when this court did not follow a general practice of taking
corrective action sua sponte due to postconviction counsel's conflict of
interest. Williams asserts that unpublished decisions demonstrate "this
Court has ruled that the existence of such a conflict requires that a habeas
corpus petitioner be allowed to litigate an otherwise successive and
untimely petition, if he or she has been represented by counsel burdened
with such a conflict during litigation of an initial habeas corpus petition." 2
There are several problems with this good cause argument.
"The Equal Protection Clause of the Fourteenth Amendment
mandates that all persons similarly situated receive like treatment under
the law." Gaines v. State, 116 Nev. 359, 371, 998 P.2d 166, 173 (2000); see
also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
Williams, however, fails to make any cogent argument or demonstrate
that she is similarly situated to the individuals in her list of unpublished
decisions. Williams fails to allege that the rules regarding the
2 Williams'examples include: Moran v. State, Docket No. 28188
(Order Dismissing Appeal, March 21, 1996); Hankins v. State, Docket No.
20780 (Order of Remand, April 24, 1990); Nevius v. Warden, Docket Nos.
29027, 29028 (Order Dismissing Appeal and Denying Petition for Writ of
Habeas Corpus, October 9, 1996); Washington v. State, Docket No. 34873
(Order Vacating Judgment and Remanding, June 12, 2001); Wade v. State,
Docket No. 37467 (Order of Affirmance, October 11, 2001); McKenna v.
State, Docket No. 18074 (Order of Remand, October 29, 1987); Elizondo v.
State, Docket No. 41555 (Order of Reversal and Remand, September 20,
2004); Burnham v. State, Docket No. 57715 (Order of Reversal and
Remand, October 5, 2011); and Wootson v. State, Docket No. 56410 (Order
of Reversal and Remand, March 18, 2011).
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appointment of counsel were the same for her and for the individuals in
her sample decisions. Williams fails to argue that the factual
circumstances were similar—that the petitioners in the unpublished
decisions requested the appointment of counsel with the conflict,
authorized that counsel to pursue the petition, and waited years to
challenge the alleged conflict of interest.
Further, Williams' list of unpublished decisions does not
demonstrate that this court has a general practice of intervening sua
sponte when postconviction counsel has a conflict of interest or that this
court has determined that postconviction counsel's conflict of interest will
provide good cause years after the decision on the first postconviction
appeal. The decisions in Burnham and Wootson are distinguishable as the
issue in those cases was whether trial counsel had a conflict of interest in
representing a defendant in proceedings prior to sentencing. Washington
and McKenna do not support Williams' argument regarding a sua sponte
practice because the petitioners in Washington and McKenna raised the
conflict-of-interest argument in their appeals from the denial of their first
petitions. The conflict-of-interest issue was raised sua sponte in Hankins
and Elizondo, but these cases involve pro se appellants, and Williams was
represented by counsel in her first postconviction appeal. Nothing in
Hankins and Elizondo suggests that a conflict of interest would be good
cause in an untimely and successive petition filed years after the decision
in the first postconviction appeal. The decision in Nevius does not support
her argument that this court has a general practice of finding a conflict of
interest to provide good cause because this court only stated that it was
arguable that the conflict of interest could provide good cause. And in
Moran, the issue was not raised sua sponte, and this court rejected the
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argument that postconviction counsel's conflict of interest could provide
good cause when there was a delay of more than 5 years after the decision
in the first postconviction appeal.
The decision in Wade is the only one of the sample decisions
that supports Williams' arguments regarding a sua sponte practice and
postconviction counsel's conflict of interest providing good cause.
However, nothing in Wade suggests that postconviction counsel's conflict
of interest would be good cause for a petition filed years after the decision
in the first postconviction appeal. Further, the decision in Wade is bereft
of any analysis of whether postconviction counsel's conflict of interest
could legally be good cause; Wade instead relies upon an ethical rule and a
test for waiver of a conflict of interest involving trial counsel. As discussed
previously, postconviction counsel's conflict of interest cannot legally
provide good cause in Nevada. And this court is aware of another case, in
addition to Williams' case, in which this court did not intervene sua sponte
when postconviction counsel had a similar alleged conflict of interest—
Clark v. State, Docket No. 58538 (Order of Affirmance, October 8, 2012).
See Clark v. Baker, No. 3:12-cv-00579-MMD-VPC, 2014 WL 1309344, at
*2-3 (D. Nev. 2014). Thus, Williams has failed to demonstrate that this
court has a general practice of intervening sua sponte or finding
postconviction counsel's conflict of interest to be good cause for a second
petition filed years later.
More importantly, this court's published cases recognizing the
mandatory nature of the procedural bars and rejecting claims of
ineffective assistance of postconviction counsel as providing good cause
outweigh any practice that can be gleaned from the unpublished decisions
identified by Williams. This court's published authority indicates that
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application of NRS 34.726, NRS 34.810(1)(b), and NRS 34.810(2) is
mandatory, see State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225,
231-32, 112 P.3d 1070, 1074-75 (2005); State v. Haberstroh, 119 Nev. 173,
180, 69 P.3d 676, 681 (2003), and that good cause to overcome a
procedural bar must afford a legal excuse and must be an impediment
external to the defense, see Hathaway, 119 Nev. at 252, 71 P.3d at 506.
This court has repeatedly rejected the argument that a claim of ineffective
assistance of postconviction counsel in a non-capital case can provide good
cause. McKague, 112 Nev. at 163-65, 912 P.2d at 258; Crump, 113 Nev. at
303, 934 P.2d at 253; Brown, 331 P.3d at 870. As discussed previously, a
conflict of interest is a claim that counsel was ineffective.
Finally, Williams' equal protection argument is flawed at its
very core—equal protection does not insure against judicial error or
guarantee uniformity of court decisions. See Beck v. Washington, 369 U.S.
541, 554-55 (1962); see also Little v. Crawford, 449 F.3d 1075, 1082 (9th
Cir. 2006). In Little, the Ninth Circuit rejected a claim that this court had
failed to apply existing case law to a Nevada state prisoner, stating that
"Little's claim, at most, amounts to an allegation that in his case Nevada
law was misapplied or that the Nevada Supreme Court departed from its
earlier decisions. Under clearly established Supreme Court law, such
contention neither gives rise to an equal protection claim, nor provides a
basis for habeas relief." Little, 449 F.3d at 1082. Williams' argument fails
for similar reasons, and therefore, she fails to demonstrate that an equal
protection violation provides good cause in this case. Thus, to the extent
the district court determined that Williams' equal protection argument
provided good cause in this case, we conclude that decision was in error.
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Actual Prejudice
In addition to demonstrating good cause, Williams must
demonstrate actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS
34.810(3). To demonstrate actual prejudice, a petitioner must
demonstrate error that worked to her actual and substantial
disadvantage. Hogan u. Warden, 109 Nev. 952, 959-60, 860 P.2d 710, 716
(1993). Regarding her claims of ineffective assistance of trial and
appellate counsel, Williams must demonstrate that counsel's performance
was deficient in that it fell below an objective standard of reasonableness,
and resulting prejudice such that there is a reasonable probability that,
but for counsel's errors, the outcome of the proceedings would have been
different. Strickland, 466 U.S. at 687-88; Warden v. Lyons, 100 Nev. 430,
432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland). To
demonstrate prejudice for failing to raise a claim on direct appeal, a
petitioner must demonstrate that the omitted issue would have had a
reasonable probability of success on appeal. Kirksey v. State, 112 Nev.
980, 998, 923 P.2d 1102, 1114 (1996). Both components of the inquiry
must be shown, Strickland. 466 U.S. at 697. We address the merits of
Williams' claims of ineffective assistance of counsel and judicial expansion
only in the context of determining whether she has demonstrated actual
prejudice.
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1. Trial and appellate counsel were not ineffective for failing to argue that
marijuana metabolite is not a prohibited substance as a matter of state
lam. 3
Williams' claim that her trial and appellate counsel were ineffective
for failing to argue that marijuana metabolite is not a prohibited
substance as a matter of state law is without merit. Williams' counsel
raised the underlying issue, whether marijuana metabolite is a prohibited
substance as a matter of state law, in the first postconviction proceedings.
Williams II, 120 Nev. at 475-76, 93 P.3d at 1259. In Williams II, this
court determined that the claim was subject to the waiver bar (NRS
34.810(1)(b)) and that Williams had failed to demonstrate good cause for
her failure to raise the claim on direct appeal. Id. at 477-78, 93 P.3d at
1260-61. This court further determined that Williams did not
demonstrate actual prejudice because marijuana metabolite is a
prohibited substance under Nevada's statutory scheme and that her
argument failed despite any ambiguity in NRS 484.1245, a general-
definition statute, because the legislative history indicated that the
Legislature specifically intended marijuana metabolite to be included in
the definition of a prohibited substance. Id. at 478-81, 93 P.3d at 1261-63.
Under these circumstances, Williams fails to demonstrate that her trial
and appellate counsel were ineffective because this court has already
determined that the underlying claim lacked merit.
3 For the sake of consistency and to lessen any confusion, we have
cited to the versions of the statutes in effect at the time of Williams'
crimes. NRS 484.013 (1999 Nev. Stat., ch. 622, §21, at 3415); NRS
484.1245 (1999 Nev. Stat., ch. 622, §20, at 3414); NRS 484.379 (1999 Nev.
Stat., ch. 622, §23, at 3415-16); NRS 484.3795 (1999 Nev. Stat., ch. 622,
§28, at 3422).
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2. Trial and appellate counsel were not ineffective for failing to argue that
Williams did not have fair notice that having marijuana metabolite in
her blood would subject her to criminal liability.
Williams argues that her trial and appellate counsel were
ineffective for failing to argue that she did not have fair notice that having
marijuana metabolite in her blood would subject her to criminal liability. 4
Williams fails to demonstrate that her counsel were ineffective because
she had fair notice at the time of her crime that driving with marijuana
metabolite subjected her to criminal liability, and her conduct was clearly
proscribed by NRS 484.379 and NRS 484.3795 regardless of any ambiguity
in NRS 484.1245. See United States v. Williams, 553 U.S. 285, 304 (2008)
(stating that "[a] conviction fails to comport with due process if the statute
under which it is obtained fails to provide a person of ordinary intelligence
fair notice of what is prohibited"); United States v. Lanier, 520 U.S. 259,
266 (1997) (recognizing a statute must not be "so vague that men of
common intelligence must necessarily guess at its meaning' and requiring
resolution of any ambiguity in a criminal statute as to apply only to
conduct clearly covered); State v. Hughes, 127 Nev. 626, 628, 261 P.3d
1067, 1069 (2011) (providing that a statute is vague if it fails to provide
fair notice of what is prohibited to a person of ordinary intelligence).
Williams' fair notice argument is premised upon an
inconsistency in the definition of a prohibited substance in NRS 484.1245,
a general statute. However, Williams' reliance upon NRS 484.1245 as the
only statute to provide fair notice is misplaced as NRS 484.379 and NRS
4As discussed previously, Williams' conflict-of-interest good cause
argument does not provide good cause to raise the underlying fair notice
claim independently of her claims of ineffective assistance of trial and
appellate counsel.
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484.3795 provided Williams with notice that it was unlawful to drive with
marijuana metabolite in her blood or urine. Williams was convicted of
violating NRS 484.379, driving with a prohibited substance (marijuana
and/or marijuana metabolite) in excess of the statutory limits, and NRS
484.3795, causing the death of persons while driving with a prohibited
substance in violation of NRS 484.379. NRS 484.379(3)(h) informed
Williams that it was unlawful to drive with marijuana metabolite equal to
or greater. than 15 nanograms per milliliter in urine or 5 nanograms per
milliliter in blood. NRS 484.3795(1)(f) provided notice that she would be
guilty of a category B felony if she drove with a prohibited substance in
her blood or urine in an amount equal to or greater than the amount set
forth in NRS 484.379(3). The inclusion of marijuana metabolite in NRS
484.379(3) in specified amounts provided Williams, or any person of
ordinary intelligence, fair notice that driving with marijuana metabolite in
excess of the statutory amounts subjected her to criminal liability.
Likewise, to the extent that there is any ambiguity in the
general definition of a prohibited substance set forth in NRS 484.1245,
Williams' conduct was clearly covered under the more specific statutes-
NRS 484.379 and NRS 484.3795. Even assuming Williams is correct that
there is some inconsistency in the general definition of a prohibited
substance set forth in NRS 484.1245, it would be unreasonable not to read
inclusion of marijuana metabolite within the definition of a prohibited
substance when the Legislature included the words "marijuana
metabolite" in the list of prohibited substances in NRS 484.1245 and
included marijuana metabolite in NRS 484.379 and NRS 484.3795 (by
reference), the offense statutes. Notably, NRS 484.013, stated that the
general definitions, including NRS 484.1245, provided meaning for terms
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in the chapter "unless the context otherwise requires." The context of
NRS 484.379(3) would require a different definition of a prohibited
substance than set forth in NRS 484.1245 if the definition in NRS
484.1245 did not include marijuana metabolite because marijuana
metabolite is listed in a specified amount in NRS 484.379(3).
Thus, because the underlying fair notice argument lacks
merit, Williams fails to demonstrate that the performance of her trial
counsel and appellate counsel was deficient or that there was a reasonable
probability of a different outcome at trial or on appeal if a fair notice claim
had been made. Therefore, Williams fails to demonstrate actual prejudice
to overcome application of the procedural bars.
3. This court did not judicially expand the meaning of prohibited
substance in Williams II, depriving Williams of fair notice.
Williams argues that this court's decision in Williams II was a
judicial expansion of NRS 484.1245 depriving her of fair notice that she
was not permitted to drive with marijuana metabolite in her system. 5 To
°The federal district court has criticized this court's reliance upon
the legislative history in Williams II in determining that a marijuana
metabolite was a prohibited substance as a matter of state law because
this court did not include any references to specific statements by
legislators showing an intent to include marijuana metabolite as a
prohibited substance even when it was not classified in a schedule. See
Williams v. Bodo, No. 2:04-cv-01620-KJD-LRL, at *7 (D. Nev. September
29, 2010). As explained in Williams II, the legislative history shows the
Legislature expressly included marijuana metabolite as a prohibited
substance. 120 Nev. at 480, 93 P.3d at 1262. The Legislature began the
bill draft process with the crime of driving with a controlled substance in
any detectable amount and a list of controlled substances relevant to
license revocation. Notably, that list did not include marijuana or
marijuana metabolite. Id. Over the course of the session, the Legislature
added the definition of a prohibited substance contained in NRS 484.1245
and specifically added marijuana and marijuana metabolite to that list
continued on next page...
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demonstrate actual prejudice for presenting this claim in an untimely and
successive petition, Williams must demonstrate a constitutional error that
worked to her actual and substantial disadvantage. 6
Williams fails to demonstrate actual prejudice because her
judicial-expansion claim lacks merit. Judicial expansion broadens the
scope of a statute beyond the statutory language in a way that was
unforeseeable. Rogers v. Tennessee, 532 U.S. 451, 457 (2001). "[D]ue
process bars courts from applying a novel construction of a criminal
statute to conduct that neither the statute nor any prior judicial decision
has fairly disclosed to be within its scope." Lanier, 520 U.S. at 266. Said
in another way, "[i]f a judicial construction of a criminal statute is
'unexpected and indefensible by reference to the law which had been
...continued
and to NRS 484.379. Id. The Legislature further chose to set forth
statutory amounts of prohibited substances rather than following the
approach in the original bill of punishing any detectable amount. Id. This
is evidence of the Legislature's thoughtful decision to include marijuana
metabolite within the definition of a prohibited substance regardless of the
language referring to the schedule.
6 As discussed previously, Williams' conflict-of-interest good cause
argument does not provide good cause for the judicial-expansion claim in a
petition filed years after the decision in Williams IL From the structure of
her petition, Williams appears to have also presented a standalone claim
that marijuana metabolite was not a prohibited substance as a matter of
state law, a repetition of the claim litigated in Williams IL Because the
standalone claim was determined to be procedurally barred in Williams II
pursuant to NRS 34.810(1)(b) (the waiver bar) and because Williams
presents no argument that this court erred in determining that she failed
to demonstrate good cause in Williams II, relitigation of the standalone
claim is barred by the doctrine of the law of the case. See Hall v. State, 91
Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975); see also Hsu v. County of
Clark, 123 Nev. 625, 629-32, 173 P.3d 724, 728-30 (2007).
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expressed prior to the conduct in issue,' it must not be given retroactive
effect." Bouie v. City of Columbia, 378 U.S. 347, 354 (1964) (quoting Hall,
General Principles of Criminal Law 61 (2c1 ed. 1960)). In Bouie, the Court
observed that the problem with judicial expansion and fair notice arises
when courts, unforeseeably, broaden statutory language that is narrow
and precise on its face. Id. at 352. Williams' judicial-expansion argument
fails for several reasons.
First, Williams' judicial-expansion argument is premised upon
NRS 484.1245 being the sole statute to provide fair notice of what is a
prohibited substance. For the reasons discussed previously, this argument
is unsound.
More importantly, Williams' judicial-expansion argument fails
because NRS 484.1245 is not drafted narrowly and precisely. Williams'
argument in Williams II and in this appeal is premised upon ambiguity
and inconsistency in NRS 484.1245. Thus, it was entirely proper for this
court in Williams II to examine the statutory scheme in NRS chapter 484,
including NRS 484.379 and NRS 484.3795, and the legislative history to
answer the question of whether marijuana metabolite was a prohibited
substance as a matter of state law.
Finally, the plain language of NRS 484.1245 included the
words "marijuana metabolite." It is difficult to conceive under these
circumstances how this court expanded the scope of NRS 484.1245 in a
novel, unforeseeable, or indefensible fashion by reading the words
"marijuana metabolite" as being included in the definition of a prohibited
substance when those exact words were used. Thus, Williams' fails to
demonstrate actual prejudice to overcome the filing of a late petition.
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Conclusion
Although the district court erred in determining that Williams
had demonstrated good cause for the reasons discussed previously, the
district court correctly determined that Williams had not demonstrated
actual prejudice. Thus, we conclude the district court reached the correct
decision in denying the petition as procedurally barred. See Wyatt v.
State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Hardesty
J.
Pickering
SAITTA, J., concurring:
I concur in the decision to affirm the denial of Williams'
petition. I recognize that Williams' good cause argument lacks legal merit
because she did not have the right to the appointment of counsel or the
effective assistance of that counsel pursuant to our decision in Brown, 130
Nev., Adv. Op. 60, 331 P.3d at 870. However, for the same reasons
discussed in the dissenting opinion in Brown, see id., 331 P.3d at 875
(Cherry and Saitta, JJ, dissenting), I believe that there should be the right
to the effective assistance of counsel in the first postconviction
proceedings.
, J.
Saitta
SUPREME COURT
OF
NEVADA
17
(0) 194Th
cc: Hon. Michelle Leavitt, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
18
(01 1947A