Opinion
No. 68614
12-29-2015
AVERY ALLEN CHURCH, JR., 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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 postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; James M. Bixler, Judge.
This appeal has been submitted for decision without oral argument and we conclude the record is sufficient for our review and briefing is unwarranted. NRAP 34(f)(3), (g).
Appellant Avery Church filed his petition on March 17, 2015, six years after issuance of the remittitur on direct appeal on March 3, 2009. Church v. State, Docket No. 48741 (Order of Affirmance, February 3, 2009). Thus, Church's petition was untimely filed. See NRS 34.726(1). Moreover, Church's petition was 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). Church'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, Church was required to overcome the rebuttable presumption of prejudice. NRS 34.800(2).
Church v. State, Docket No. 56402 (Order of Affirmance, October 5, 2011).
Relying in part on Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), Church argued that ineffective assistance of postconviction counsel excused his procedural defects. Ineffective assistance of postconviction counsel would not be good cause in the instant case because the appointment of counsel in the prior postconviction 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 postconviction procedures, see Brown v. McDaniel, 130 Nev. ___, ___, 331 P.3d 867, 871-72 (2014), and thus, Martinez does not provide good cause for this untimely petition. Church also failed to overcome the presumption of prejudice to the State. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
We also conclude the district court did not abuse its discretion by denying Church's motion to appoint counsel. See NRS 34.750(1). --------
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver cc: Hon. James M. Bixler, District Judge
Avery Allen Church, Jr.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk