Opinion
No. 67295
05-20-2015
JEFFREY LYNN FRANKLIN, 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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 a district court order denying a post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.
This appeal has been submitted for decision without oral argument, see NRAP 34(f)(3), and we conclude 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 Jeffrey Lynn Franklin's August 13, 2014, petition was untimely because it was filed more than six years after the Nevada Supreme Court issued the remittitur on direct appeal on January 22, 2008. See NRS 34.726(1). Franklin's petition was also successive because he had previously filed three post-conviction petitions for writs of habeas corpus, and his first petition was denied on the merits. See NRS 34.810(2). Consequently, Franklin's petition was procedurally barred absent a showing of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3). Additionally, because the State specifically pleaded laches, Franklin was required to overcome the rebuttable presumption of prejudice. See NRS 34.800(2).
See Franklin v. State, Docket No. 48848 (Order of Affirmance, December 27, 2007).
See Franklin v. State, Docket No. 52422 (Order of Affirmance, December 11, 2009); Franklin v. State, Docket No. 63352 (Order of Affirmance, December 12, 2013); Franklin u. State, Docket No. 65231 (Order of Affirmance, July 23, 2014).
Franklin appears to argue appellate and post-conviction counsels' ineffectiveness provided good cause to excuse his procedural default. However, Franklin's claim of ineffective assistance of appellate counsel was itself procedurally defaulted. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). Franklin was not entitled to effective assistance of post-conviction counsel. See McKague v. Warden, 112 Nev. 159, 164-65, 912 P.2d 255, 258 (1996). And the United States Supreme Court's holding in Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), does not apply to habeas petitions filed in state courts. Brown v. McDaniel, 130 Nev. ___, ___, 331 P.3d 867, 871-72 (2014).
To the extent that Franklin also argued the district court's failure to appoint post-conviction counsel in the instant matter constitutes good cause to overcome his procedural default, his argument is without merit. Franklin does not have a constitutional or statutory right to post-conviction counsel, and the district court's decision to appoint such counsel is discretionary. See NRS 34.750(1); Coleman v. Thompson, 501 U.S. 722, 752 (1991); McKague, 112 Nev. at 164, 912 P.2d at 258.
We conclude Franklin failed to demonstrate good cause to excuse his procedural default. Further, Franklin made no attempt to respond to the State's plea of laches. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
We have reviewed all documents Franklin has submitted in this matter, and we conclude no relief is warranted.
--------
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver
cc: Hon. Jessie Elizabeth Walsh, District Judge
Jeffrey Lynn Franklin
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk