Opinion
82167-COA
06-28-2021
FREDERICK J. BENSON, JR., A/K/A FREDDIE BENSON, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
GIBBONS C.J.
Frederick J. Benson, Jr., appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on August 24, 2020. Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge.
Benson filed his petition more than 16 years after issuance of the remittitur on direct appeal on February 24, 2004. Benson v. State, Docket No. 40463 (Order of Affirmance, January 28, 2004). Thus, Benson's petition was untimely filed. See NRS 34.726(1). Moreover, Benson's petition was successive because he had previously filed several postconviction petitions for a writ of habeas corpus, his first being decided on the merits, and it constituted an abuse of the writ as he raised claims new and different from those raised in his previous petitions. See NRS 34.810(2). Benson's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3).
Benson v. State, Docket No. 80141-COA (Order of Affirmance, July 24, 2020); Benson v. State, Docket No. 57175 (Order of Affirmance, November 17, 2011); Benson v. State, Docket No. 44932 (Order of Affirmance, June 16, 2005).
Benson claimed he had good cause because a 2019 change in the law applies retroactively to Benson and it means his confession would no longer be admissible at trial. See NRS 171.1239. Benson filed his petition within a reasonable time of a change in the law. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003) (holding that a change in the law may constitute good cause). However, he failed to demonstrate actual prejudice because he failed to demonstrate the Legislature intended the law to apply retroactively. See State v. Second Judicial DisL Court (Pullin), 124 Nev. 564, 567, 188 P.3d 1079, 1081 (2008) (holding that courts must apply the law in effect at the time a defendant commits a crime "unless the Legislature clearly expresses its intent to apply a law retroactively"). Therefore, we conclude the district court did not err by denying the petition as procedurally barred.
Benson claims on appeal that he was not given an adequate opportunity to respond to the State's reply and motion to dismiss because the State sent their reply to a prison in Nevada rather than the prison he was at in Arizona. Because it does not appear that Benson was given an opportunity to respond to the State's motion to dismiss prior to his petition being denied, we conclude the district court erred by denying the petition without giving Benson an opportunity to respond. See NRS 34.750(4). However, Benson did not attempt to respond to the State's motion to dismiss after receiving it. Further, in his pro se brief on appeal, he claims that his response would have pointed out that he has been raising challenges to the admission of his confession since before 2008 but only now has legal authority to support it because of the recent statutory changes. As indicated above, the new law does not apply retroactively. For these reasons, and because the procedural bars under NRS 34.726 and 34.810(3) are mandatory, Benson fails to demonstrate his substantial rights were violated when the district court denied his petition based on those procedural bars. See NRS 178.598 ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.").
Benson also appears to challenge the district court's denial of his motion to appoint counsel. NRS 34.750(1) provides for the discretionary appointment of postconviction counsel if the petitioner is indigent and the petition is not summarily dismissed. Here, the district court found the petition was procedurally barred pursuant to NRS 34.810(2) and declined to appoint counsel. Because the petition was subject to summary dismissal, see NRS 34.745(4), we conclude the district court did not abuse its discretion by declining to appoint counsel. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Tao, J. Bulla , J.