Lay (Orlando) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA
ORLANDO G. LAY, No. 68100
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. APR 15 2016
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order denying a
postconviction petition for writ of habeas corpus. Eighth Judicial District
Court, Clark County; Stefany Miley, Judge.
Appellant Orlando Lay pleaded guilty to sexually motivated
coercion while represented by Jeffrey Maningo. Thereafter, Lay hired Ben
Nadig to represent him in a post-sentencing motion to withdraw his guilty
plea based on Maningo's purported ineffective assistance. Nearly two
years after the district court entered Lay's judgment of conviction, he filed
the present petition for a writ of habeas corpus.' The district court denied
the petition as untimely under NRS 34.726(1), concluding Lay did not
"Lay filed a petition for a writ of coram nobis before filing the
present petition for a writ of habeas corpus. The district court denied
Lay's coram nobis petition, and Lay did not appeal that decision. To the
extent that Lay's present habeas petition draws from his earlier petition
for a writ of coram nobis, we note that the district court entered its order
denying Lay's coram nobis petition more than six months before Lay filed
this appeal. Therefore, we are unable to address any alleged error in the
district court's coram nobis decision. See NRAP 3(a)(1); see also NRAP 4.
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demonstrate (1) good cause for his delay or (2) that denying the petition
would result in a fundamental miscarriage of justice.
Lay now appeals, arguing he is entitled to at least an
evidentiary hearing because (1) Nadig's alleged ineffective assistance
constitutes good cause for his failure to comply with NRS 34.726(1)'s one-
year time-bar, (2) Maningo's alleged ineffective assistance is also good
cause for failing to comply with NRS 34.726(1), and (3) failing to consider
the petition amounts to a fundamental miscarriage of justice because Lay
can adequately demonstrate his factual innocence. We reject these
arguments and conclude that Lay cannot overcome NRS 34.726(1)'s one-
year time-bar.
District courts must dismiss habeas petitions not filed within
one year after a judgment of conviction 2 unless (1) there is good cause for
the petitioner's delay, NRS 34.726(1); State v. Eighth Judicial Din. Court,
121 Nev. 225, 231-32, 112 P.3d 1070, 1074 (2005); or (2) the petitioner can
show that a fundamental miscarriage of justice would result if his petition
is barred, Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
First, Lay's ineffective assistance claims against Nadig—who
represented Lay in a post-sentencing motion to withdraw his guilty plea—
cannot constitute good cause to overcome NRS 34.726(1)'s one-year
procedural bar. Where there is no statutory or constitutional right to
counsel, ineffective assistance of counsel will not constitute good cause to
2 Laydoes not argue he filed his petition within the one-year time
frame provided under NRS 34.726(1); indeed, Lay's judgment of conviction
was entered November 19, 2012, and he filed the present petition
December 5, 2014.
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overcome procedural bars. Crump v. Warden, 113 Nev. 293, 303 n.5, 934
P.2d 247, 253 n.5 (1997). This court has never found a constitutional right
to counsel for a post-sentencing motion to withdraw a guilty plea, cf. Beak
v. State, 106 Nev. 729, 731, 802 P.2d 2, 4 (1990) (finding a constitutional
right to counsel during a pre-sentencing motion to withdraw guilty plea),
and neither the United States nor Nevada Constitutions recognize a right
to counsel during postconviction proceedings, McKague v. Whitley, 112
Nev. 159, 163, 912 P.2d 255, 257-58 (1996) (citing Coleman v. Thompson,
501 U.S. 722, 752 (1991)). Moreover, Lay has not discussed, and we have
not found, any Nevada statute giving him a right to counsel for his post-
sentencing motion to withdraw his guilty plea.
As such, the district court properly concluded that Lay did not
overcome NRS 34.726(1)'s one-year time-bar because he had no
constitutional or statutory right to counsel when Nadig represented him,
and therefore, Lay did not have a right to the effective assistance of
counsel. See Crump, 113 Nev. at 302-03 n.5, 934 P.2d at 253 n.5 (1997).
Second, Lay's claim that Maningo provided ineffective
assistance is itself time-barred. Lay's claims against Maningo involve
conduct that, if true, would have been apparent well within a year of his
judgment of conviction, 3 and "an adequate allegation of good cause would
sufficiently explain why a petition was filed beyond the [one-year]
3 Reading Lay's petition holistically, it appears he argues Maningo
provided ineffective assistance by (1) advising Lay a jury would convict
him, (2) not believing Lay's claim to innocence, (3) advising Lay not to ruin
a good plea offer by claiming innocence during the plea canvas, (4) not
advising Lay of the immigration consequences of his plea, and (5) not
seriously investigating Lay's innocence.
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statutory time period. Thus, a claim or allegation that was reasonably
available to the petitioner during the statutory time period would not
constitute good cause to excuse the delay." Hathaway v. State, 119 Nev.
248, 252-53, 71 P.3d 503, 506 (2003). Thus, the district court properly
determined Maningo's alleged ineffective assistance is not good cause for
delay under NRS 34.726(1) because the claims against Mailing° are
themselves time-barred.
Finally, Lay argues the evidence shows that he is factually
innocent, and therefore, applying NRS 34.726(1)'s time-bar constitutes a
fundamental miscarriage of justice. The district court rejected this
argument, concluding that Lay did not produce any new evidence and
merely argued the evidence against him was insufficient to support a
conviction.
"This court may excuse the failure to show cause [for delay]
where the prejudice from a failure to consider the claim amounts to a
fundamental miscarriage of justice." Pellegrini, 117 Nev. at 887, 34 P.3d
at 537 (internal quotation marks omitted). "In order to demonstrate a
fundamental miscarriage of justice, a petitioner must make a colorable
showing of actual innocence—factual innocence, not legal innocence."
Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 875 (2014).
"Actual innocence means that 'it is more likely than not that no reasonable
juror would have convicted him in light of. . . new evidence." Id. (quoting
Calderon u. Thompson, 523 U.S. 538, 559 (1998)). Therefore, to avoid NRS
34.726(1)'s time-bar based on a "fundamental miscarriage of justice," the
petitioner must present (1) new evidence, (2) showing he is factually
innocent, (3) such that no reasonable juror would convict him. Id.
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We agree with the district court's determination that Lay has
failed to produce new evidence, 4 and his arguments merely challenge the
legal sufficiency of the case against him, as opposed to demonstrating
actual innocence. Therefore, the district court properly concluded that
applying NRS 34.726(1)'s time-bar would not result in a fundamental
miscarriage of justice.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Saitta
, J.
Pickering
4 Lay filed a second habeas petition after the district court denied the
present petition. The second petition purports to amend the present
habeas petition by providing new evidence of Lay's innocence. First, Lay
cannot amend a petition that the district court has already denied.
Second, the "new evidence" tends to inculpate Lay. In a letter to an
immigration judge, Lay's victim requests clemency for Lay's "mistakes"
which were the result of a "weak moment." At best, the letter says that
some unspecified details that were reported about the incident were
incorrect, but "something did happen that night and it was not right."
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cc: Hon. Stefany Miley, District Judge
Orlando G. Lay
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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