Opinion
No. 77563-COA
01-22-2020
SALLY DORIAN VILLAVERDE, Appellant, v. BRIAN WILLIAMS, WARDEN, Respondent.
ORDER GRANTING REHEARING AND ORDER OF AFFIRMANCE
Sally Dorian Villaverde appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on August 26, 2018. Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge.
On October 30, 2019, this court entered an order of affirmance in this appeal. On November 20, 2019, Villaverde submitted a petition for rehearing. In his petition, among other claims, Villaverde asserts this court overlooked his claim that he had good cause to overcome the procedural bars based on ineffective assistance of appellate counsel. After reviewing the petition filed below and the opening brief filed on appeal, we conclude Villaverde demonstrated this court overlooked his good cause claim. Accordingly, we grant the petition for rehearing, see NRAP 40(c)(2), vacate the "Order of Affirmance" filed on October 30, 2019, and issue this order in its place.
Villaverde filed his petition more than 12 years after issuance of the remittitur on direct appeal on March 14, 2006. See Villaverde v. State, Docket No. 43443 (Order of Affirmance, February 15, 2016). Thus, Villaverde's petition was untimely filed. See NRS 34.726(1). Moreover, Villaverde's petition was successive because he had previously filed a postconviction petition 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 petition. See NRS 34.810(1)(b)(2); NRS 34.810(2). Villaverde'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).
Villaverde v. State, Docket No. 51000 (Order of Affirmance, May 10, 2010).
First, Villaverde claims the district court erred by denying his claim that he demonstrated good cause to overcome the procedural bars based on actual innocence. Specifically, Villaverde claimed he was actually innocent because his codefendant, who actually committed the physical act of killing the victim, pleaded guilty to voluntary manslaughter and the other charges against the codefendant were dropped. Villaverde claimed his codefendant's guilty plea was new evidence, not presented at trial, that showed that he could not have committed first-degree murder with the use of a deadly weapon, robbery with the use of a deadly weapon, and burglary.
"A habeas petitioner may overcome these [procedural] bars and secure review of the merits of defaulted claims by showing that the failure to consider the petition on its merits would amount to a fundamental miscarriage of justice." Berry v. State, 131 Nev. 957, 966, 363 P.3d 1148, 1154 (2015). A colorable showing of actual innocence may overcome a procedural bar under the fundamental miscarriage of justice standard. Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). To demonstrate actual innocence a "petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of new evidence." Berry, 131 Nev. at 966, 363 P.3d at 1154 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). "[A]ctual innocence means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). "[A]n evidentiary hearing regarding actual innocence is required where the new evidence, if credited, would show that it is more likely than not that no reasonable jury would find the petitioner guilty beyond a reasonable doubt." Berry, 131 Nev. at 967, 363 P.3d at 1155 (internal quotation marks omitted).
Villaverde failed to demonstrate he was actually innocent. Villaverde's codefendant's Alford plea to lesser charges did not demonstrate Villaverde was factually innocent of the charges he was convicted of. Accordingly, because Villaverde failed to demonstrate it was more likely than not that no reasonable jury would find him guilty beyond a reasonable doubt based on his codefendant's plea, we conclude the district court did not err by denying this claim without first holding an evidentiary hearing.
North Carolina v. Alford, 400 U.S. 25 (1970).
Second, Villaverde appears to have argued he had good cause based on the State's failure to inform him that his codefendant pleaded guilty to lesser charges, which he claimed violated Brady v. Maryland, 373 U.S. 83 (1963). "Good cause and prejudice [to excuse a procedural bar] parallel the second and third Brady components; in other words proving that the State withheld the evidence generally establishes cause, and proving that the withheld evidence was material establishes prejudice." State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003). An evidentiary hearing is warranted when a petitioner supports his claim with specific facts not belied by the record and that, if true, would entitle him to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).
Villaverde failed to demonstrate his codefendant's plea was material. His codefendant did not testify at Villaverde's trial and Villaverde failed to demonstrate how his codefendant's plea would have been admissible at trial. Further, his codefendant did not plead guilty until after Villaverde's trial. Therefore, Villaverde failed to demonstrate good cause or prejudice to excuse the procedural bars. Accordingly, we conclude the district court did not err by denying this claim without first holding an evidentiary hearing.
Finally, Villaverde argues the district court erred by denying his claim that he demonstrated good cause to overcome the procedural bars because appellate counsel was ineffective for failing to investigate and raise his Brady claim on appeal. He argued this claim was not itself procedurally barred because it was based on newly discovered evidence.
"A claim of ineffective assistance may [ ] excuse a procedural default if counsel was so ineffective as to violate the Sixth Amendment." Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). However, "the ineffective assistance of counsel claim itself must not be procedurally defaulted." Id. A claim that "the factual or legal basis was not reasonably available to counsel" may provide cause to overcome the procedural default. Id. A good cause argument must be raised within a year of when the claim becomes available. See Rippo v. State, 134 Nev. 411, 422, 423 P.3d 1084, 1097 (2018).
Villaverde failed to allege when he learned of the new evidence or that he filed his petition within a year of learning of the new evidence. Further, as discussed above, he failed to demonstrate his Brady claim had a reasonable likelihood of success on appeal. See Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996). Therefore, Villaverde failed to demonstrate good cause or prejudice to excuse the procedural bars. Accordingly, we conclude the district court did not err by denying this claim without first holding an evidentiary hearing.
For the foregoing reasons, we
GRANT REHEARING and ORDER the judgment of the district court AFFIRMED.
Because the district court did not give Villaverde an adequate time to respond to the State's laches argument, we conclude the district court erred by denying the petition based on laches. See NRS 34.800(2). However, because the district court otherwise correctly denied the petition as procedurally barred under NRS 34.810, we conclude the district court did not err by denying the petition. --------
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Bulla cc: Hon. Douglas W. Herndon, District Judge
Sally Dorian Villaverde
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk