Opinion
No. 73744
07-20-2018
RONALD W. COLLINS, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Ronald W. Collins appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on April 21, 2017. Eighth Judicial District Court, Clark County; Douglas W. Herndon, 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).
Collins filed his petition nearly 15 years after issuance of the remittitur on direct appeal on June 4, 2002. See Collins v. State, Docket No. 37061 (Order of Affirmance, May 10, 2002). Collins' petition was therefore untimely filed. See NRS 34.726(1). His petition was also successive because he had previously filed two postconviction petitions for a writ of habeas corpus. NRS 34.810(1)(b)(2); NRS 34.810(2). Collins' 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). Further, because the State specifically pleaded laches, Collins was required to overcome the presumption of prejudice to the State. See NRS 34.800(2).
See Collins v. State, Docket No. 48675 (Order of Affirmance, May 22, 2007); Collins v. State, Docket No. 41194 (Order of Affirmance, April 14, 2004).
Collins' underlying claim was that he is entitled to the retroactive application of Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000). He claimed the United States Supreme Court's decisions 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 excuse his procedural bars because they changed the framework under which retroactivity is analyzed. However, Collins' 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 Collins' case. Accordingly, new retroactivity case law does not constitute good cause to overcome the procedural bars to Collins' petition.
Further, we note Collins challenged the premeditation jury instruction on appeal from his judgment of conviction, and the Nevada Supreme Court concluded the district court did not abuse its discretion in giving that instruction.
Collins 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). Collins claimed below that "[t]he facts in this case established that [he] only committed a second-degree murder." This is not factual innocence. Accordingly, Collins 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. And for this same reason, he failed to overcome the presumption of prejudice to the State. See NRS 34.800. We therefore conclude the district court did not err by denying Collins' 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
Ronald W. Collins
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk