Hanson (Mark) v. Warden ( 2014 )


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  •                 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. MRS 34.800(2).
    Appellant claimed that his appellate and previous post-
    conviction counsel did not properly raise and exhaust two claims, which
    did not allow him to proceed in federal court on those two claims. That
    counsel for appellant did not exhaust state remedies in appellant's earlier
    court proceedings did not demonstrate that there was an impediment
    external to the defense that should excuse the procedural bars.             See
    Hathaway v. State, 
    119 Nev. 248
    , 252, 
    71 P.3d 503
    , 506 (2003); see also
    Colley v. State, 
    105 Nev. 235
    , 236, 
    773 P.2d 1229
    , 1230 (1989). Further,
    appellant's argument regarding post-conviction counsel as good cause
    lacked merit as appellant had no statutory right to post-conviction
    counsel, and thus the ineffective assistance of post-conviction counsel does
    not provide good cause for a successive and untimely petition.              See
    McKague v. Warden, 
    112 Nev. 159
    , 164-65 & n.5, 
    912 P.2d 255
    , 258 & n.5
    (1996); Crump v. Warden, 
    113 Nev. 293
    , 303 & n.5, 
    934 P.2d 247
    , 253 &
    n.5 (1997); see also Brown v. McDaniel, 130 Nev. , P.3d                 2
    (Adv. Op. No. 60, August 7, 2014) (explaining that post-conviction
    counsel's performance does not constitute good cause to excuse the
    procedural bars unless the appointment of post-conviction counsel was
    mandated by statute); Coleman v. Thompson, 
    501 U.S. 722
    , 755-757 (1991)
    (holding that petitioner did not have a "constitutional right to counsel on
    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 the procedural defects).
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    Finally, appellant failed to overcome the presumption of
    prejudice to the State. Therefore, the district court did not err in
    dismissing the petition as procedurally barred and barred by laches.
    Accordingly, we
    ORDER the judgment of the district court AFFIRMED. 3
    J.
    Hardesty
    Douglas
    CHERRY, 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
    3 We have reviewed all documents that appellant has submitted in
    proper person to the clerk of this court in this matter and the State's
    opposition to appellant's motion to vacate conviction, and we conclude that
    no relief based upon those submissions is warranted. To the extent that
    appellant has attempted to present claims or facts in those submissions
    which were not previously presented in the proceedings below, we have
    declined to consider them in the first instance.
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    under NRS 34.800(2) and appellant failed to rebut the presumption of
    prejudice to the State.
    cc:   Hon. Nancy L. Porter, District Judge
    Mark Anthony Hanson
    Attorney General/Carson City
    Elko County District Attorney
    Elko County Clerk
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Document Info

Docket Number: 62033

Filed Date: 9/16/2014

Precedential Status: Non-Precedential

Modified Date: 4/17/2021