Pitrello (Mary) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA
MARY PITRELLO, No. 83289
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
APR 2 9 2022
ELIZABE111 A. BROWN
CLERK OF VAS,* cougr
BY •
"-ltrift
PtrlYfliCLE
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying appellant
Mary Pitrello's postconviction petition. for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Michelle Leavitt, Judge.
Appellant did not pursue a direct appeal and filed her
postconviction petition for a writ of habeas corpus over one year after the
entry of her judgment of conviction. Thus, her petition was untimely filed.
See NRS 34.726(1). Consequently, the petition was procedurally barred
absent a demonstration of cause for the delay and undue prejudice or that
the failure to consider her claims would result in a fundamental miscarriage
of justice. See id.; Berry v. State, 131 Nev. 957, 966, 363 P.3d 1148, 1154
(2015). Appellant argues that the district court erred in denying her
petition as procedurally barred without conducting an evidentiary hearing.
First, appellant argues she demonstrated good cause because
she was in segregated custody for 10 months, could not contact prior
counsel, lacked adequate resources in prison to file a petition, was not
familiar with the legal process, and did not obtain counsel in time to file a
timely petition. She also contends that she was entitled to the equitable
tolling of the statutory period. We conclude that these arguments lack
merit. Appellant did not state when she was in segregated housing or
explain how 10 months in segregated housing prevented her from filing a
postconviction petition until over four years after her judgment of conviction
was filed. As she failed to support this good-cause claim with factual
allegations sufficient to explain the entire delay, she did not allege sufficient
facts to warrant relief. Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d
503, 506 (2003). Appellant's inability to contact trial counsel, lack of legal
training, and reliance on prison legal facilities do not constitute good cause
because they were not impediments external to the defense. See id. at 252,
71 P.3d at 506; see also Phelps v. Dir., Nev. Dep't of Prisons, 104 Nev. 656,
660, 764 P.2d 1303, 1306 (1988) (holding that petitioner's claim of organic
brain damage, borderline mental disability, and reliance on assistance of
inmate law clerk unschooled in the law did not constitute good cause for the
filing of a procedurally barred postconviction petition), superseded by
statute on other grounds as stated in State v. Haberstroh, 119 Nev. 173, 69
P.3d 676 (2003). As appellant did not have the right to postconviction
counsel, the lack of counsel cannot be good cause. See Rippo v. State, 134
Nev. 411, 418 n.9, 423 P.3d 1084, 1094 n.9 (2018). Lastly, this court has
ion November 22, 2017, appellant filed a motion to withdraw counsel
and accompanying affidavit in which she alleged deficiencies in counsel's
performance as it related to her guilty plea and sentencing and sought the
appointment of new counsel. The district court did not construe this motion
as a postconviction petition. Had it done so, the motion was nevertheless
untimely as it was filed roughly 19 months after the entry of the judgment
of conviction.
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rejected calls for the equitable tolling of the filing period set forth in NRS
34.726. Brown v. McDaniel, 130 Nev. 565, 576, 331 P.3d 867, 875 (2014).
Next, appellant argues that the failure to consider her petition
on the merits will result in a fundamental miscarriage of justice. In
particular, she alleges that she is actually innocent of first-degree murder
because she acted in self-defense or was intoxicated or was otherwise
mentally incapable of the intent required for first-degree murder. A
colorable showing of actual innocence may overcome procedural bars under
the fundamental miscarriage of justice standard. Berry, 131 Nev. at 966,
363 P.3d at 1154. But under this standard, "'actual innocence means
factual innocence, not mere legal insufficiency." Bousley v. United States,
523 U.S. 614, 623 (1998); Mitchell v. State, 122 Nev. 1269, 1273-74, 149 P.3d
33, 36 (2006); see also Rozzelle v. Sec'y, Florida Depit of Corr., 672 F.3d 1000,
1015-16 (11th Cir. 2012) (explaining that the actual innocence exception
contemplates the "extremely rare" cases where the State convicted an
innocent defendant, not "run of the mill" cases where the petitioner argues
that he or she is guilty of a lesser offense than that for which he was
convicted). Appellant's claims asserted legal innocence or challenged the
sufficiency of the evidence against her, not her factual innocence, and she
failed to allege sufficient facts to demonstrate that "it is more likely than
not that no reasonable juror would have convicted" her in light of all the
evidence. Bousley, 523 U.S. at 623 (internal quotation marks omitted); see
Sawyer v. Whitley, 505 U.S. 333, 339 (1992) (recognizing that the
miscarriage of justice exception applies to actual innocence as opposed to
legal innocence). Therefore, we conclude that the district court did not err
SUPREME COURT
OF
NEVADA
3
(01 I947A 0670.
by denying the petition as procedurally barred without conducting an
evidentiary hearing. Accordingly, we
ORDER the judgment of the district court AFFIRMED.2
S,,,_
_D
Parraguirre
,
Cadish
cc: Hon. Michelle Leavitt, District Judge
Terrence M. Jackson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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