Atkins (Sterling) v. State (Death Penalty-Pc) ( 2014 )

 demonstrate good cause to excuse the procedural bars, see NRS 34.726(1);
NRS 34.810(3), and dismissed his petition.
Atkins contends that the district court erred by concluding
that he failed to demonstrate good cause and by doing so without
conducting an evidentiary hearing. When reviewing a district court's
determination regarding good cause, we give deference to its factual
findings but review its legal conclusions de novo. State v. Huebler, 128
Nev. „ 275 P.3d 91, 95 (2012), cert. denied, 568 U.S. 133 S. Ct.
988 (2013). A petitioner is entitled to an evidentiary hearing if he "asserts
specific factual allegations that are not belied or repelled by the record and
that, if true, would entitle him to relief." Nika v. State, 124 Nev. 1272,
1300-01, 198 P.3d 839, 858 (2008).
First, Atkins contends that the district court erred by
concluding that post-conviction counsel's ineffectiveness did not constitute
good cause to excuse the procedural bars. We disagree. Although the
ineffective assistance of post-conviction counsel may provide cause to file a
successive petition where, as here, the appointment of post-conviction
counsel was mandated by NRS 34.820(1), McKague v. Warden, 112 Nev.
159, 164-65, 912 P.2d 255, 258 (1996), the claim must be raised in a timely
fashion. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506
(2003). Because the instant petition was filed more than seven years after
this court resolved the appeal involving his first post-conviction petition,
see Atkins v. State, Docket No. 37292 (Order of Affirmance, May 14, 2002),
and Atkins failed to demonstrate how post-conviction counsel's deficiencies
precluded him from filing the instant petition within a reasonable time,
we conclude that the district court did not err by determining that this
ground was insufficient to excuse the procedural bars.
SUPREME COURT
OF
NEVADA
2
(0) 1947A ea
Second, Atkins contends that the district court erred by
concluding that his low intelligence did not constitute good cause to excuse
the procedural bars. We disagree. Atkins filed his first, timely petition in
proper person, which belies any suggestion that his low intelligence
precluded him from filing a petition within a reasonable time. But
regardless, a petitioner's low intelligence is not an impediment external to
the defense and is not sufficient cause to excuse the procedural bars,
Phelps v. Dir., Nev. Dep't of Prisons, 104 Nev. 656, 660, 764 P.2d 1303,
1306 (1988). We conclude that the district court did not err by
determining that this ground was insufficient to excuse the procedural
bars.
Third, Atkins contends that the district court erred by
concluding that his pursuit of relief in federal court did not constitute good
cause to excuse the procedural bars. We conclude that the district court
did not err by determining that this ground was insufficient to excuse the
procedural bars. See Colley v. State, 105 Nev. 235, 236, 773 P.2d 1229,
1230 (1989), abrogated by statute on other grounds as recognized by
Huebler, 128 Nev. at n.2, 275 P.3d at 95 n.2.
Fourth, Atkins contends that the district court erred by
concluding that the holding in Crawford v. Washington, 541 U.S. 36(2004), which was announced after he filed his first petition, did not
constitute good cause to excuse the procedural bars. We disagree for two
reasons. First, Atkins filed the instant petition almost five years after
Crawford was announced, and therefore failed to raise this claim in a
reasonable time. See Hathaway, 119 Nev. at 252-53, 71 P.3d at 506.
Second, Crawford does not apply retroactively on collateral review of a
conviction, such as Atkins', that was final before Crawford was decided.
SUPREME COURT
OF
NEVADA
3
(0) 19474 ae
Whorton v. Bockting, 549 U.S. 406, 417 (2007). We conclude that the
district court did not err by determining that this ground was insufficient
to excuse the procedural bars.
Because the district court correctly concluded that Atkins
failed to demonstrate good cause and that he was not entitled to an
evidentiary hearing, we
ORDER the judgment of the district court AFFIRMED.
C.J.
Gibbons
1 NCAA- tez.Ati, J.
Pickering Hardesty
012.3 J. J.
Parraguirre Dmiraf21141S-
, J.
Cherry
(
cc: Hon. Jennifer P. Togliatti, District Judge
Marc Picker
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
10) 1947A en