Carroll (Deangelo) v. State ( 2013 )

 NRS 34.726(1). To raise a claim in an untimely or successive post-
conviction petition, petitioner bears the burden of pleading and proving
specific facts that establish good cause and prejudice to overcome the
procedural bars. State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003).
While we agree with the district court that Carroll was
deprived of his right to a direct appeal due to ineffective assistance of
counsel, as counsel's testimony at the evidentiary hearing supports that
finding, an appeal-deprivation claim is nevertheless subject to the
procedural default rules. See State v. Eighth Judicial Dist. Court (Riker),
121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005) ("Application of the
statutory procedural default rules to post-conviction habeas petitions is
mandatory."); Hathaway v. State, 119 Nev. 248, 252, 253-54, 71 P.3d 503,
506, 507 (2003). And, although a claim of ineffective assistance of counsel
may excuse a procedural default, that claim must not itself be
procedurally defaulted. Hathaway, 119 Nev. at 252, 71 P.3d at 506.
Rather, a claim must be raised within a reasonable time after discovering
it to satisfy good cause. Id. at 253, 71 P.3d at 506. The record is bereft of
any findings indicating when Carroll learned that no direct appeal had
been filed or whether his post-conviction petition was filed within a
reasonable time thereafter. Therefore, we remand this matter to the
district court for the limited purpose of conducting an evidentiary hearing
on the applicable procedural bars and entering the necessary written
factual findings and legal conclusions concerning whether Carroll
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established good cause to excuse the delay in filing his post-conviction
petition. Accordingly, we
ORDER this matter REMANDED to the district court for
proceedings consistent with this order.'
Hardesty
cc: Hon. Valerie Adair, District Judge
Mario D. Valencia
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
'This is our final disposition of this appeal. If the district court
determines on remand that Carroll demonstrated cause for his procedural
default, the district court shall comply with NRAP 4(c)(1)(B). If the
district court determines that Carroll cannot demonstrate cause for his
procedural default, the district court shall enter an order denying the
petition, including findings of fact and conclusions of law. If the petition is
denied, Carroll may file a notice of appeal consistent with NRAP 34.575.
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