Pinkston (Barbara) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA
BARBARA ANNE PINKSTON, No. 68266
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. APR 1 4 2016
TRACE K. UNDFMAN
CLERK OF SUPREME COURT
BY
DEPUTY CLt
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; Elissa F. Cadish, Judge.
Appellant filed her postconviction petition on January 23,
2015, nearly 15 years after issuance of the remittitur on direct appeal on
April 3, 2000. Pinkston v. State, Docket No. 31508 (Order Dismissing
Appeal, March 2, 2000). Therefore, the petition was untimely filed. See
NRS 34.726(1). Additionally, her petition was successive pursuant to NRS
34.810(1)(b) because she previously sought postconviction relief. Pinkston
v. State, Docket No. 47500 (Order of Affirmance, June 27, 2007). Her
petition was procedurally barred absent a demonstration of good cause
and prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3).
Appellant contends that the district court incorrectly
concluded that her challenge to the premeditated murder instruction given
at trial was barred by the law-of-the-case doctrine because it differed from
her previous challenges to the instruction on direct appeal and in the prior
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postconviction proceeding Therefore, she argues, her new challenge to
the premeditation instruction could appropriately be raised in the instant
successive petition and she has established good cause and prejudice to
overcome the procedural bars. Relying on Martinez v. Ryan, 566 U.S. ,
132 S. Ct. 1309 (2012), appellant argues that first postconviction counsel
was ineffective for failing to challenge the premeditation instruction on
this new ground and therefore she has established good cause to overcome
the procedural default. However, the ineffective assistance of
postconviction counsel is not good cause here because the appointment of
counsel in the prior postconviction proceeding was not statutorily or
constitutionally required. See Crump v. Warden, 113 Nev. 293, 303, 934
P.2d 247, 253 (1997); McKague v. Warden, 112 Nev. 159, 164, 912 P.2d
255, 258 (1996). And she concedes that this court's holding in Brown v.
McDaniel that Martinez does not apply to Nevada's statutory
postconviction procedures forecloses her good-cause argument. 130 Nev.,
Adv. Op. 60, 331 P.3d 867, 870 (2014). Further, appellant's contention
that the federal decisions in Bunkley v. Florida, 538 U.S. 835 (2003) and
Babb v. Lowzowsky, 719 F.3d 1019 (9th Cir. 2013), provide good cause
lacks merit as she has not explained her delay in filing her petition several
years after those cases were decided. 2 We therefore conclude that the
"Even if the district court erred by concluding that appellant's
challenge to the premeditated murder instruction was barred by the law-
of-the-case doctrine, she has not demonstrated that further
reconsideration of this claim would garner relief.
2 Appellantnotes that in her petition below she alleged ineffective
assistance of appellate counsel and fundamental miscarriage of justice as
additional grounds to overcome the procedural bars to the petition. In her
continued on next page . . .
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district court did not err by denying appellant's postconviction petition as
procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
tfr< J.
Douglas
CHERRY, J., dissenting:
I respectfully dissent. I would extend the equitable rule
recognized in Martinez v. Ryan, 132 S. Ct. 1309 (2012), to this case
because appellant was convicted of murder and is facing a severe sentence.
See Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867 (2014)
(Cherry, J., dissenting).
CL
Cherry
J.
. . . continued
opening brief, she indicates that she "maintains these assertions for
preservation of the issue on subsequent review by any court." Because
appellant has not provided relevant authority or cogent argument
regarding these good-cause claims, this court need not• address them.
Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
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cc: Hon. Elissa F. Cadish, District Judge
Federal Public Defender/Las Vegas
Clark County District Attorney
Attorney General/Carson City
Eighth District Court Clerk
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