Vang (Kou) v. State ( 2014 )

 different from those raised in his previous petitions. 3 See NRS
34.810(1)(b)(2); 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(1)(b); NRS 34.810(3). Moreover, because the
State specifically pleaded laches, appellant was required to overcome the
rebuttable presumption of prejudice. NRS 34.800(2).
First, relying in part on Martinez v. Ryan, 566 U.S. , 132 S.
Ct. 1309 (2012), appellant claimed that ineffective assistance of post-
conviction counsel and the failure to appoint post-conviction appellate
counsel excused his procedural defects. Ineffective assistance of post-
conviction counsel or lack of post-conviction appellate counsel would not be
good cause in the instant case because the appointment of counsel in the
prior post-conviction proceedings was not statutorily or constitutionally
required. 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, 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 (2014), and thus, Martinez does not provide good
cause for this late and successive petition. In addition, Martinez does not
apply to "appeals from initial-review collateral proceedings," and
therefore, does not apply to appellant's claims of ineffective assistance of
post-conviction appellate counsel. Martinez, 566 U.S. at , 132 S. Ct. at
1320; see also See Coleman v. Thompson, 501 U.S. 722, 755-757 (1991)
(holding that a petitioner did not have a "constitutional right to counsel on
3 Vang v. State, Docket No. 47495 (Order of Affirmance, December
21, 2006); Vang v. State, Docket No. 28905 (Order Dismissing Appeal, July
21, 1998).
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appeal from the state habeas trial court judgment" and that a claim of
ineffective assistance of counsel during state habeas appellate proceedings
does not constitute cause to excuse procedural defects).
Second, appellant claimed that he had good cause because he
recently discovered that his trial counsel did not communicate a plea offer
from the State and improperly advised him regarding an additional plea
offer. Appellant also claimed that Lafler v. Cooper, 566 U.S. , 132 S.
Ct. 1376 (2012), and Missouri v. Frye, 566 U.S. , 132 S. Ct. 1399 (2012),
provided good cause to raise this claim. Appellant's claim was without
merit. The plea offers were discussed on the record during the 1986 trial,
in appellant's presence, and counsel stated that appellant had rejected
both of the State's offers. Therefore, claims stemming from the State's
plea offers were reasonably available to be raised in a timely petition and
appellant did not demonstrate that there was an impediment external to
the defense that prevented him from timely raising this claim. See
Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003).
Moreover, appellant failed to demonstrate that Cooper and
Frye provided good cause because his case was final when those cases were
decided, and he failed to demonstrate that those cases would apply
retroactively to him. See Clem v. State, 119 Nev. 615, 627-28, 81 P.3d 521,
530-31 (2003). Even if Cooper and Frye announced new rules of
constitutional law, appellant failed to demonstrate that he met either
exception to the general principle that such rules do not apply
retroactively to cases which were already final when the new rules were
announced. See Colwell v. State, 118 Nev. 807, 820, 59 P.3d 463, 472
(2002) (explaining that new constitutional rules only apply retroactively
"(1) if the rule establishes that it is unconstitutional to proscribe certain
conduct as criminal or to impose a type of punishment on certain
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procedure without which the likelihood of an accurate conviction is
seriously diminished").
In addition, appellant failed to demonstrate actual prejudice
related to his claim involving plea offers. He did not demonstrate a
reasonable probability that there was a plea offer from the State that
appellant would have accepted absent ineffective assistance of counsel,
that the State would not have withdrawn it in light of intervening
circumstances, and that the district court would have accepted it. See
Lafler, 566 U.S. at , 132 S. Ct. at 1385; Frye 566 U.S. , 132 S. Ct. at
1409. Therefore, the district court did not err in denying this claim.
Appellant also failed to overcome the presumption of prejudice
to the State because he failed to demonstrate a fundamental miscarriage
of justice. See NRS 34.800(1)(b). Therefore, the district court did not err
in denying the petition as procedurally barred and barred by laches.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Pa'rraguirre
SAITTA, J., concurring:
Although 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 v. McDaniel, 130 Nev. , P.3d
(Adv. Op. No. 60, August 7, 2014) (Cherry, J., dissenting), I concur in
the judgment on appeal in this case because the State pleaded laches
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under NRS 34.800(2) and appellant failed to rebut the presumption of
prejudice to the State.
J.
Saitta
cc: Hon. Jerome T. Tao, District Judge
Kou Lo Vang
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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