Opinion
No. 73617
07-27-2018
ANTHONY LAMAR BAGLEY, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Anthony Lamar Bagley appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on April 21, 2017, and supplemental petition filed on May 16, 2017. Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge.
This appeal has been submitted for decision without oral argument. NRAP 34(f)(3).
Bagley filed his petition more than 15 years after issuance of the remittitur on direct appeal on July 10, 2001. See Bagley v. State, Docket No. 35100 (Order of Affirmance, June 12, 2001). Bagley's petition was therefore untimely filed. See NRS 34.726(1). Bagley's petition was also successive and an abuse of the writ. See NRS 34.810(1)(b)(2); NRS 34.810(2). Bagley's petition was therefore 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).
See Bagley v. State, Docket No. 55087 (Order of Affirmance, June 10, 2010); Bagley v. State, Docket No. 43587 (Order of Affirmance, January 25, 2005).
Bagley claimed the holdings in Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257 (2016), and Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718 (2016), provided good cause to overcome the procedural bars. A claim of good cause must be raised within a reasonable time, Hathaway v. State, 119 Nev. 248, 251, 71 P.3d 503, 505 (2003), but Bagley's petition was filed more than one year from when Welch and Montgomery were decided. Bagley offered no explanation for this delay and thus failed to demonstrate good cause.
To the extent Bagley contended the decision in Riley v. McDaniel, 786 F.3d 719 (9th Cir. 2015), provided good cause, we note that Bagley's petition was filed more than a year after Riley was decided. Further, the Nevada Supreme Court has expressly disagreed with Riley. See Leavitt v. State, 132 Nev. ___, 386 P.3d 620 (2016). Accordingly, Riley would not provide good cause to overcome the procedural bars.
Moreover, as a separate and independent ground to deny relief, Welch and Montgomery are inapplicable to Bagley's underlying substantive claims. First, Bagley claimed he was entitled to the retroactive application of the 2007 amendments to NRS 193.165. Welch and Montgomery address situations in which a court interpreted a statute or made a constitutional determination. See Welch, ___ U.S. at ___, 136 S. Ct. at 1264-65; Montgomery v. Louisiana, ___ U.S. at ___, 136 S. Ct. at 726. The Legislature's changes to NRS 193.165 were not the result of a court decision and were not of constitutional dimension. See State v. Second Judicial Dist. Court, 124 Nev. 564, 565-66, 571, 188 P.3d 1079, 1080, 1084 (2008).
Second, Bagley claimed he was entitled to the retroactive application of Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), because Welch and Montgomery changed the framework under which retroactivity is analyzed. However, Bagley's conviction was not yet final when Byford was decided, see Colwell v. State, 118 Nev. 807, 820, 59 P.3d 463, 472 (2002); see also U.S. Sup. Ct. R. 13, such that retroactivity is not at issue in Bagley's case. Further, Bagley could not demonstrate actual prejudice because the Nevada Supreme Court applied Byford to his case and concluded "beyond a reasonable doubt" that the giving of the erroneous jury instruction "did not contribute to the verdict obtained." Bagley v. State, Docket No. 55087 (Order of Affirmance, June 10, 2010). This holding is the law of the case. See Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). For the foregoing reasons, Welch and Montgomery do not provide good cause to reach Bagley's underlying claims.
Bagley also claimed he could demonstrate a fundamental miscarriage of justice to overcome the procedural bars because "there is a significant risk that [he] stands convicted of an act that the law does not make criminal." A petitioner may overcome procedural bars by demonstrating he is actually innocent such that the failure to consider his petition would result in a fundamental miscarriage of justice. Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). "It is important to note in this regard that 'actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). Bagley claimed below that "[t]he facts in this case established that [he] only committed a second-degree murder." This is not factual innocence. Accordingly, Bagley failed to demonstrate he is actually innocent such that failing to consider his claims on the merits would result in a fundamental miscarriage of justice. We therefore conclude the district court did not err by denying Bagley's petition as procedurally barred, and we
ORDER the judgment of the district court AFFIRMED.
We conclude the district court did not abuse its discretion by declining to appoint postconviction counsel. See NRS 34.750(1); Renteria-Novoa v. State, 133 Nev. ___, ___, 391 P.3d 760, 760-61 (2017). --------
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. Douglas W. Herndon, District Judge
Anthony Lamar Bagley
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk