Hernandez (Fernando) v. McDaniel (Death Penalty-Pc) ( 2014 )

 claim in a timely manner and (b) actual prejudice. See NRS 34.726(1).
Good cause may be demonstrated by showing ineffective assistance of
counsel or an impediment external to the defense such as a factual or legal
basis for a claim that was not reasonably available or interference by
officials making compliance impracticable. Hathaway v. State, 119 Nev.
248, 252-53, 71 P.3d 503, 506 (2003). However, good cause arguments
must be made in a timely fashion and are also subject to the procedural
default rules. Id. "Actual prejudice requires [petitioner] to show not
merely that the errors at his trial created a possibility of prejudice, but
that they worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions." State v. Eighth
Judicial Dist. Court (Riker), 121 Nev. 225, 232, 112 P.3d 1070, 1075 (2005)
(internal quotations marks omitted). In order to be entitled to an
evidentiary hearing, Hernandez must raise claims that are supported by
specific factual allegations that are not belied by the record and, if true,
would entitle him to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686
P.2d 222, 225 (1984). Because Hernandez has failed to present specific
factual allegations that would entitle him to relief on any of his claims, the
district court did not err by denying him an evidentiary hearing.
Among Hernandez's twenty-one claims for relief, 1 he raised
four claims that allege the ineffective assistance of post-conviction counsel.
While post-conviction counsel's ineffectiveness may constitute good cause
to file claims in a successive petition, those claims are subject to MRS
34.726(1), Riker, 121 Nev. at 235, 112 P.3d at 1077; Pellegrini v. State, 117
Nev. 860, 869-78, 34 P.3d 519, 525-31 (2001), and must be raised within a
reasonable time after they become available, Hathaway, 119 Nev. at 252-
'Six claims raised in Hernandez's successive petition are not raised
on appeal.
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53, 71 P.3d at 506. Hernandez filed his second post-conviction petition for
a writ of habeas corpus in district court on July 7, 2010, 2 1 year, 5 months,
and 4 days after remittitur was issued on the appeal from the order
denying his first post-conviction petition. Hernandez contends that this
period of delay was reasonable. We disagree.
First, Hernandez contends that he had good cause for the
delay because he requested that post-conviction counsel turn over the
entire case file in January 2009 but he did not receive the entire file until
July 2009, two months after the district court ordered counsel to do so and
five months after his claim became available. Although Hernandez's
allegations, if true, establish that post-conviction counsel did not transfer
the entire case file until five months after remittitur issued, he has not
explained how this delay prevented him from filing his petition within a
reasonable amount of time. See Hood v. State, 111 Nev. 335, 338, 890 P.2d
797, 798 (1995) (concluding that counsel's failure to send appellant his
files did not constitute good cause for appellant's procedural default under
NRS 34.726(1) because it did not "prevent appellant from filing a timely
petition" (emphasis added)). Other than arguing that the file was needed
"to see what type of investigation was actually conducted" by post-
conviction counsel, Hernandez has not presented any specific facts that
demonstrate why post-conviction counsel's file was necessary for him to
2Although Hernandez has only included his July 29, 2010, amended
petition, the district court's findings of fact state that Hernandez's original
petition was filed on July 7, 2010. The petition's verification did not
comply with the requirements of NRS 34.730(1), but a subsequent
verification cured the defect in his petition, see Miles v. State, 120 Nev.
383, 387, 91 P.3d 588, 590 (2004).
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raise any of the claims in his successive petition. 3 Furthermore, the record
demonstrates that Hernandez already possessed sufficient information to
file his first fourteen-page proper person petition for a writ of habeas
corpus in March 2003, and post-conviction counsel's supplemental petition
was mailed to Hernandez in Ely State Prison in March 2004. Absent any
evidence or argument to the contrary these documents appear to have
provided sufficient information for Hernandez to file a successive petition
well before July 2010. Post-conviction counsel's failure to timely transfer
his file to Hernandez does not provide good cause for Hernandez's delay in
filing his petition because Hernandez did not demonstrate that this act
prevented him from filing a petition within a reasonable time after the
post-conviction counsel claim became available. Hood, 111 Nev. at 338,
890 P.2d at 798.
Second, Hernandez contends that he had good cause for the
delay because his low average intelligence, difficulty with the English
language, brain injury, dementia, and mental illnesses caused him to
spend seven months filing groundless and nonsensical motions which were
denied before counsel was appointed. The only proper person motions in
the record that were filed during the period before counsel was appointed
are all dated July 19, 2009, and involve Hernandez's attempt to obtain all
of the records, transcripts, and evidence related to his trial from post-
conviction counsel, the State, and the district court. Although those
motions are clearly not drafted by a lawyer, they do not appear to be
groundless and nonsensical but instead have a singular purpose, filing a
3 Because Hernandez failed to make specific factual allegations
explaining how counsel caused his delay by failing to transfer the file, he
was not entitled to an evidentiary hearing. See Hargrove, 100 Nev. at 502,
686 P.2d at 225.
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"Federal Habeas Corpus Petition" containing "more than . . . bare naked
allegations." Hernandez's decision to focus on filing a federal petition for
habeas corpus rather than a state petition does not excuse his delay. See
Colley v. State, 105 Nev. 235, 773 P.2d 1229, 1230 (1989).
Third, Hernandez contends that he had good cause for the
delay because counsel filed the successive state petition nine months after
being appointed by the federal district court. Hernandez fails to mention
that the same counsel filed a federal petition with almost identical claims
seven months earlier. And because Hernandez is not entitled to the
appointment of counsel to assist with the filing of a successive petition, see
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (no federal constitutional
right to post-conviction counsel), the appointment of counsel almost eight
months after remittitur does not excuse his delay.
Fourth, Hernandez contends that he had good cause for the
delay in filing his petition because his counsel was prepared to file the
successive State petition immediately after she filed Hernandez's first
amended federal habeas petition eleven months after remittitur, but
Hernandez's mental illness prevented him from understanding the need to
file a successive petition in state court and caused him to refuse to sign a
verification. Although Hernandez has presented specific factual
allegations that, if true, may demonstrate that he suffers from "organic
brain damage" and "a severe and profound mental illness" which includes
dissociative and delusional disorders, he does not present any specific
factual allegations explaining how these disorders caused him to refuse to
verify his successive petition. Hernandez also does not explain how he
was able to verify the same successive petition seven months later, despite
suffering from the same claimed mental illnesses. Furthermore, had
counsel filed the unverified petition in a timely fashion, Hernandez's
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petition would likely not have resulted in dismissal under Hathaway, 119
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Nev. at 252-53, 71 P.3d at 506. See Miles, 120 Nev. at 385, 91 P.3d at 589
(explaining that a properly verified supplemental petition can relate back
to the original timely unverified petition). This court has held that
organic brain damage and borderline mental retardation does not provide
good cause for failing to raise new or different grounds for relief under
NRS 34.810. Phelps v. Dir., Nev. Dep't of Prisons, 104 Nev. 656, 660, 764
P.2d 1303, 1306 (1988). Hernandez has not provided any reason why this
court should depart from that holding with respect to Hernandez's "severe
and profound mental illness" and untimely successive petitions under
NRS 34.726(1). Without an explanation for how Hernandez's dissociative
and delusional disorders prevented him from filing his petition in a
reasonable amount of time after remittitur, his mental illness does not
excuse his delay in filing his petition.
Fifth, Hernandez contends that he had good cause for the
delay because a full investigation, including a complete psychological
evaluation by a competent Spanish-speaking neuropsychologist and
interviews with family members in Mexico, was needed to demonstrate
prejudice from trial counsel's and post-conviction counsel's deficient
performance. However, the Spanish-speaking neuropsychologist
evaluated Hernandez 10 months after remittitur, and family members in
Mexico had been interviewed for the first time before counsel filed
Hernandez's amended federal petition, 11 months after remittitur from his
appeal from the denial of his first post-conviction petition. Therefore, the
scope of the investigation into Hernandez's background and mental health
history does not excuse his additional eight-month delay in filing the
petition.
Sixth, Hernandez contends that statutory and equitable
tolling make his petition timely. Nevada has no statute that "tolls" the
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procedural default rules and this court has not adopted the doctrine of
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equitable tolling with respect to the procedural default rules.
Furthermore, post-conviction petitions for a writ of habeas corpus are
controlled by statute and the Legislature has specifically addressed the
time limits for filing a petition and how a petitioner can overcome those
limits Tolling does not excuse Hernandez's failure to file a timely
petition. 4
For these reasons, Hernandez did not file his successive
petition within a reasonable amount of time after his ineffective-
assistance-of-post-conviction-counsel claims became available and he has
not established good cause for his delay. See Hathaway, 119 Nev. at 252-
53, 71 P.3d at 506. As to Hernandez's remaining non-ineffective-
assistance-of-post-conviction-counsel claims, they were untimely, could
have been raised in a prior proceeding, and/or failed to allege new or
different grounds for relief See NRS 34.726(1); 34.810(1)(b), (2).
Hernandez failed to demonstrate good cause and prejudice to overcome the
procedural default rules with respect to those claims as well. See NRS
34.726(1); NRS 34.810(3); Hathaway, 119 Nev. at 252-53, 71 P.3d at 506. 5
4 Hernandez also contends that the procedural default rules cannot
be applied to bar his successive petition because they are not applied in a
consistent manner in violation of the equal protection and due process
clauses. This court has rejected similar arguments by opinion. Riker, 121
Nev. at 235-42, 112 P.3d at 1076-82. Furthermore, Hernandez has not
demonstrated that this court applies the procedural default rules in a
subjectively discretionary fashion. Therefore, this claim lacks merit.
5 To
the extent Hernandez seeks to raise an actual innocence claim in
his reply brief, this court's appellate rules prohibit him from raising any
claim for the first time in his reply brief NRAP 28(c); see also Elvik v.
State, 114 Nev. 883, 888, 965 P.2d 281, 284 (1998) (explaining that
arguments made for the first time in a reply brief prohibit the respondent
from responding to appellant's contentions with specificity). Therefore, we
do not consider this claim on appeal.
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We therefore conclude that the district court did not err by
denying Hernandez's untimely and successive petition, and we
ORDER the judgment of the district court AFFIRMED. 6
, C.J.
Gibbons
J. /-344-44e-sc
Pickering Hardesty
cm
CCH et-gdr J.
Parraguirre Douglas
a6at
Cherry
J. (
Saitta
cc: Hon. Stefany Miley, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
6 Hernandez has submitted a proper person notice of points and
authorities concerning his appeal. Because he is represented by counsel in
this matter, we decline to grant him permission to file documents in
proper person in this court. See NRAP 46(b). Accordingly, this court shall
take no action on and shall not consider the proper person document
Hernandez has submitted to this court in this matter. The clerk of the
court is directed to return, unfiled, the proper person document received
on October 4, 2012.
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