Opinion
No. 67478
06-16-2015
SEAN DAVID FOLLETT, Appellant, v. THE STATE OF NEVADA, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
This is an appeal from a district court order dismissing a post-conviction petition for a writ of habeas corpus. Second Judicial District Court, Washoe County; Lynne K. Simons, Judge.
This appeal has been submitted for decision without oral argument, NRAP 34(f)(3), and we conclude the record is sufficient for our review and briefing is unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975).
Appellant Sean Follett filed his petition on May 6, 2014, almost 3 years after issuance of the remittitur on direct appeal on July 5, 2011. Thus, Follett's petition was untimely filed. See NRS 34.726(1). Moreover, Follett's petition was successive because he had previously filed a post-conviction petition for a writ of habeas corpus, and it constituted an abuse of the writ as he raised claims new and different from those raised in his previous petition. See NRS 34.810(1)(b)(2); NRS 34.810(2). Follett's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3).
Follett's pro se appeal from the denial of his October 17, 2011, petition and June 4, 2012, supplemental petition was dismissed for lack of jurisdiction. Follett v. State, Docket No. 65336 (Order Dismissing Appeal, May 13, 2014).
Relying in part on Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), Follett argued ineffective assistance of post-conviction counsel excused his procedural defects. Follett specifically asserted post-conviction counsel was ineffective for failing to adequately raise all of his claims below and for failing to file an appeal from the denial of his first post-conviction petition. Ineffective assistance of post-conviction counsel would not be good cause in the instant case because the appointment of counsel in the prior post-conviction proceedings was not statutorily or constitutionally required. 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). Further, the Nevada Supreme Court has held that Martinez does not apply to Nevada's statutory post-conviction procedures, see Brown v. McDaniel, 130 Nev. ___, ___, 331 P.3d 867, 871-72 (2014), and thus, Martinez did not provide good cause to file this late, successive, and abusive petition. Accordingly, we conclude the district court did not err by dismissing the petition as procedurally barred, and we
Follett filed a pro se appeal from the denial of his first petition after learning counsel failed to file an appeal.
ORDER the judgment of the district court AFFIRMED.
We have reviewed all documents Follett has submitted in this matter, and we conclude no relief based upon those submissions is warranted. To the extent Follett has attempted to present claims or facts in those submissions which were not previously presented in the proceedings below, we decline to consider them in the first instance.
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/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver
cc: Hon. Lynne K. Simons, District Judge
Sean David Follett
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk