Opinion
No. 66025
01-21-2015
ROBERT WADE MORSE, Appellant, v. ISIDRO BACA, WARDEN, N.N.C.C., 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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. Fourth Judicial District Court, Elko County; Nancy L. Porter, Judge.
This appeal has been submitted for decision without oral argument, NRAP 34(f)(3), and we conclude that 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 filed his petition on March 22, 2013, more than thirteen years after issuance of the remittitur on direct appeal on August 11, 1999. Morse v. State, Docket No. 32296 (Order Dismissing Appeal, July 16, 1999). Thus, appellant's petition was untimely filed. See NRS 34.726(1). Moreover, appellant's petition was successive because he had previously filed several 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). Appellant'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).
Morse v. Warden, Docket No. 54897 (Order of Affirmance, May 7, 2010); Morse v. Warden, Docket No. 51826 (Order of Affirmance, July 31, 2009); Morse v. State, Docket No. 38713 (Order of Affirmance, February 12, 2002).
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First, relying in part on Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), appellant argued that ineffective assistance of post-conviction counsel excused his procedural defects. 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. 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). Further, the Nevada Supreme Court has recently held that Martinez does not apply to Nevada's statutory post-conviction procedures, see Brown v. McDaniel, 130 Nev. ___, ___, 331 P.3d 867, 872-73 (2014), and thus, Martinez does not provide good cause for this late and successive petition.
Second, appellant claimed that Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376 (2012), provided good cause to claim that his trial counsel was ineffective for advising appellant to reject a plea offer of voluntary manslaughter. Appellant's claim was without merit. A claim stemming from the State's plea offer was reasonably available to be raised in a timely petition and appellant did not demonstrate that there was an impediment external to the defense that prevented him from timely raising this claim. See Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003).
Moreover, appellant failed to demonstrate that Lafler provided good cause because his case was final when that case was decided, and he failed to demonstrate that that case would apply retroactively to him. See Clem v. State, 119 Nev. 615, 627-28, 81 P.3d 521, 530-31 (2003). Even if Lafler announced new rules of constitutional law, appellant failed to demonstrate that he met either exception to the general principle that such rules do not apply retroactively to cases which were already final when the new rules were announced. See Colwell v. State, 118 Nev. 807, 820, 59 P.3d 463, 472 (2002) (explaining that new constitutional rules only apply retroactively "(1) if the rule establishes that it is unconstitutional to proscribe certain conduct as criminal or to impose a type of punishment on certain defendants because of their status or offense; or (2) if it establishes a procedure without which the likelihood of an accurate conviction is seriously diminished").
In addition, appellant failed to demonstrate actual prejudice related to this claim. While appellant was not entirely clear, it appears that appellant asserted counsel believed they would be successful at trial. Appellant did not allege that counsel misadvised him regarding the law pertaining to his charges. Cf. Lafler, 566 U.S. at ___, 132 S. Ct. at 1384 (explaining that counsel's performance was objectively unreasonable due to misadvice about the charges). Further, he did not demonstrate a reasonable probability that there was a plea offer from the State that appellant would have accepted absent ineffective assistance of counsel, that the State would not have withdrawn it in light of intervening circumstances, and that the district court would have accepted it. See id., 566 U.S. at ___,132 S. Ct. at 1385. Therefore, the district court did not err in denying this claim.
Finally, appellant claimed that the procedural bars did not apply because he is actually innocent as he acted under the influence of alcohol and due to an emotional disturbance caused by his ex-wife's infidelity. Appellant did not demonstrate actual innocence because his assertions failed to show that '"it is more likely than not that no reasonable juror would have convicted him in light of . . . new evidence.'" Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini v. v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001); Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). Therefore, the district court did not err in denying 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. Nancy L. Porter, District Judge
Robert Wade Morse
Attorney General/Carson City
Elko County District Attorney
Elko County Clerk