Hendrix v. State

Full title: MITZI ROCHELLE HENDRIX, Appellant, v. THE STATE OF NEVADA, Respondent.

Court: COURT OF APPEALS OF THE STATE OF NEVADA

Date published: Nov 23, 2020

No. 78526-COA (Nev. App. Nov. 23, 2020)

Opinion

No. 78526-COA

11-23-2020

MITZI ROCHELLE HENDRIX, Appellant, v. THE STATE OF NEVADA, Respondent.

Gibbons

ORDER OF AFFIRMANCE

Mitzi Rochelle Hendrix appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on May 14, 2018. Eighth Judicial District Court, Clark County; Jerry A. Wiese, Judge.

Hendrix's petition was filed more than two years after her judgment of conviction was entered on December 4, 2015.¹ Consequently, her petition was untimely filed and procedurally barred absent a demonstration of good cause—cause for the delay and undue prejudice. See NRS 34.726(1). She did not allege good cause in the pleadings she filed in the court below.

1 Hendrix did not pursue a direct appeal.

Hendrix claims on appeal that postconviction counsel was ineffective for failing to argue good cause. However, because she did not have a constitutional or statutory right to postconviction counsel, ineffective assistance of postconviction counsel does not provide good cause to excuse the procedural bar to her petition. See Brown v. McDaniel, 130 Nev. 565, 571, 331 P.3d 867, 871-72 (2014).

We conclude the district court did not err by denying Hendrix's procedurally barred habeas petition, see State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005) ("Application of the statutory procedural default rules to postconviction habeas petitions is mandatory."), and we

ORDER the judgment of the district court AFFIRMED.²

2 To the extent that Hendrix's motion to amend her postconviction habeas petition timely claimed she was deprived of effective assistance of counsel during her drug court program termination and probation revocation hearing, we conclude this claim was bare and she was not entitled to relief. See Rippo v. State, 134 Nev. 411, 426, 423 P.3d 1084, 1100 (2018). We further conclude the district court properly denied her petition without conducting an evidentiary hearing. See Rubio v. State, 124 Nev. 1032, 1046 n.53, 194 P.3d 1224, 1234 n.53 (2008).

/s/_________, C.J.

Gibbons

/s/_________, J.

Tao

/s/_________, J.

Bulla cc: Hon. Jerry A. Wiese, District Judge

Zaman & Trippiedi, PLLC

Attorney General/Carson City

Clark County District Attorney

Eighth District Court Clerk