Opinion
No. 75582-COA
03-20-2019
CHAZ HIGGS, Appellant, v. ISIDRO BACA, WARDEN NNCC, Respondent.
ORDER OF AFFIRMANCE
Chaz Higgs appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on February 8, 2018. Second Judicial District Court, Washoe County; Barry L. Breslow, 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).
Higgs filed his petition 8 years after issuance of the remittitur on direct appeal on February 9, 2010. See Higgs v. State, 126 Nev. 1, 222 P.3d 648 (2010). Thus, Higgs' petition was untimely filed. See NRS 34.726(1). Higgs' petition was procedurally barred absent a demonstration of good cause—cause for the delay and undue prejudice. See id.
Higgs claimed he had good cause to excuse the procedural bar because trial and appellate counsel failed to inform him of his state postconviction remedies. Higgs failed to demonstrate good cause because trial and appellate counsel did not have a constitutional duty to inform him about the availability of postconviction remedies. See Hathaway v. State, 119 Nev. 248, 253, 71 P.3d 503, 506-07 (2003) (recognizing that good cause must be a legal excuse); see also Moore v. Cockrell, 313 F.3d 880, 882 (5th Cir. 2002) (holding the right to counsel ends when the decision by the appellate court is entered); Miranda v. Castro, 292 F.3d 1063, 1066-68 (9th Cir. 2002) (holding that equitable tolling was not warranted where a petitioner relied on incorrect advice of former counsel because petitioner had no right to the assistance of counsel regarding postconviction relief). Accordingly, we conclude the district court did not err by denying Higgs' 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. 75, 76, 391 P.3d 760, 760-61 (2017).
/s/_________, J.
Tao
/s/_________, J.
Gibbons
/s/_________, J.
Bulla cc: Hon. Barry L. Breslow, District Judge
Chaz Higgs
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk