Opinion
No. 67755
08-04-2015
JEFFREY L. FRANKLIN, 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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 an order of the district court denying a post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Jessie Elizabeth Walsh, 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 Jeffrey Franklin filed his petition on November 21, 2014, more than five years after issuance of the remittitur on direct appeal on January 22, 2008. Franklin v. State, Docket No. 48848 (Order of Affirmance, December 27, 2007). Thus, Franklin's petition was untimely filed. See NRS 34.726(1). Moreover, Franklin's petition was successive because he had previously filed four post-conviction petitions 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 petitions. See NRS 34.810(1)(b)(2); NRS 34.810(2). Franklin's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3). Moreover, because the State specifically pleaded laches, Franklin was required to overcome the rebuttable presumption of prejudice. NRS 34.800(2).
Franklin v. State, Docket No. 67295 (Order of Affirmance, May 20, 2015); Franklin v. State, Docket No. 65231 (Order of Affirmance, July 23, 2014); Franklin v. State, Docket No. 63352 (Order of Affirmance, December 12, 2013); Franklin v. State, Docket No. 52422 (Order of Affirmance, December 11, 2009). --------
First, Franklin claimed he had good cause because he was illegally sentenced as a habitual criminal. Franklin's challenge to his adjudication as a habitual criminal did not constitute good cause because it was reasonably available to be raised in a timely petition. See Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003). Moreover, Franklin failed to demonstrate his sentence was facially illegal or the district court lacked jurisdiction. See Edwards v. State, 112 Nev. 704, 708, 918 P.2d 321, 324 (1996).
Second, Franklin claimed appellate and post-conviction counsels' ineffectiveness provided good cause to excuse his procedural defects. A procedurally barred claim of ineffective assistance of appellate counsel cannot constitute cause for additional claims of ineffective assistance of counsel. See Hathaway, 119 Nev. at 252, 71 P.3d at 506. Franklin's claim of ineffective assistance of appellate counsel was procedurally barred because it was reasonably available to be raised in a timely petition, and therefore, did not constitute cause for this untimely and successive petition.
In addition, Franklin was not entitled to the effective assistance of post-conviction counsel, see McKague v. Warden, 112 Nev. 159, 164-65, 912 P.2d 255, 258 (1996), and therefore, his claim of ineffective assistance of post-conviction counsel did not demonstrate good cause. See Brown v. McDaniel, 130 Nev. ___, ___, 331 P.3d 867, 871-72 (2014) (explaining post-conviction counsel's performance does not constitute good cause to excuse the procedural bars unless the appointment of post-conviction counsel was mandated by statute).
Third, Franklin appeared to claim federal equitable tolling standards should excuse the procedural bars. However, the Nevada Supreme Court has rejected federal tolling standards. See id. at ___, 331 P.3d at 874. Therefore, Franklin did not demonstrate this claim constituted good cause.
Finally, Franklin failed to overcome the presumption of prejudice to the State. Therefore, the district court properly denied the petition as procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver
cc: Hon. Jessie Elizabeth Walsh, District Judge
Jeffrey L. Franklin
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk