Opinion
No. 68271
03-16-2016
FREDERIC GREEN, 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. Second Judicial District Court, Washoe County; Janet J. Berry, Judge.
Appellant Frederic Green filed his petition on December 11, 2014, nearly 11 years after issuance of the remittitur on direct appeal on January 6, 2004. Green v. State, 119 Nev. 542, 80 P.3d 93 (2003). Thus, Green's petition was untimely filed. See NRS 34.726(1). Moreover, Green's petition was successive because he had previously filed two 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). Green'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).
Green claims he has good cause to overcome the procedural bars pursuant to Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376 (2012) because counsel was ineffective in communicating a plea offer. This claim is without merit. First, this claim was raised for the first time nearly two years after Lafler was decided in 2012, and Green fails to demonstrate good cause for the entire length of his delay. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003).
Second, this claim of ineffective assistance of counsel was always available to be raised and Green fails to demonstrate why he waited 11 years to raise it. See id. Further, because his case was final when Lafler was decided, Green failed to demonstrate the case would apply retroactively to him. Even if Lafler announced a new rule of constitutional law, Green'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).
Finally, we note Green fails to support his claim that counsel was ineffective with specific facts that, if true, would have entitled him to relief. See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984). He fails to specify what the terms of the rejected plea agreement were or how counsel failed to communicate with him regarding the plea offer. Therefore, he failed to demonstrate good cause to excuse the procedural bar and we conclude the district court did not err in denying the petition as procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver cc: Hon. Janet J. Berry, District Judge
Story Law Group
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
Green v. State, 47318 (Order of Affirmance, June 4, 2007); Green v. State, 59153 (Order of Affirmance, June 13, 2012).