Opinion
No. 66882
02-17-2016
ANTHONY ROSS BLACK, Appellant, v. THE STATE OF NEVADA, Respondent.
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; Kenneth C. Cory, 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 Anthony Black filed his petition on June 16, 2014, 14 years after, issuance of the remittitur on direct appeal on June 20, 2000. Black v. State, Docket No. 33753 (Order Dismissing Appeal, May 25, 2000). Thus, Black's petition was untimely filed. See NRS 34.726(1). Moreover, Black's petition was successive because he had previously filed three postconviction 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). Black'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).
See Black v. State, Docket No. 64552 (Order of Affirmance, June 11, 2014); Black v. State, Docket No. 44472 (Order of Affirmance, April 27, 2005); Black v. State, Docket No. 38780 (Order of Affirmance, May 7, 2003).
First, Black claimed he had good cause pursuant to Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376 (2012) because counsel was ineffective for telling him to reject a plea offer. This claim is without merit because this claim of ineffective assistance of counsel was always available to be raised and Black failed to demonstrate why he waited 14 years to raise it. Further, because his case was final when Lafler was decided, he failed to demonstrate the case would apply retroactively to him. Even if Lafler announced a new rule of constitutional law, Black's conviction was already final when the rule was announced and he has not established that either exception for retroactive application applies. See Colwell v. State, 118 Nev. 807, 820, 59 P.3d 463, 472 (2002). Therefore, the district court did not err in denying this claim.
Next, relying in part on Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), Black argued 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 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 late and successive petition. Accordingly, the district court did not err in denying this claim, and we
ORDER the judgment of the district court AFFIRMED.
We have reviewed all documents Black has submitted in this matter, and we conclude no relief based upon those submissions is warranted. To the extent Black 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. --------
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver cc: Hon. Kenneth C. Cory, District Judge
Anthony Ross Black
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk