Camacho (Eduardo) v. Warden

• Court: Nevada Supreme Court
• Decided: September 17, 2014
• Docket: 63354
• Status: Unpublished

Opinion

On appeal, appellant argues that the United States Supreme Court decisions in Lafler v. Cooper, 566 U.S. , 132 S. Ct. 1376 (2012), and Missouri v. Frye, 566 U.S. , 132 S. Ct. 1399 (2012), provided good cause to raise his claim that trial counsel was ineffective for failing to secure or communicate plea offers. Appellant's good-cause argument is without merit because his case was final when Lafler and Frye were decided, and he has failed to demonstrate that the decisions would apply retroactively to him. Even if those decisions announced new rules of constitutional law, he has failed to allege facts to support that he met either exception to the general principle that such rules do not apply retroactively to cases which were already final when the new rules were announced. See Colwell v. State, 118 Nev. 807, 816-17, 59 P.3d 463, 469- 70 (2002). Next, relying in part on Martinez v. Ryan, 566 U.S. , 132 S. Ct. 1309 (2012), appellant argues that ineffective assistance of post- conviction counsel excused his procedural defects. Ineffective assistance of post-conviction counsel would not be good cause in the instant case because the appointment of counsel in the prior post-conviction proceedings was not statutorily or constitutionally required. Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253(1997); McKague v. Warden, 112 Nev. 159, 164, 912 P.2d 255, 258 (1996). Further, this court has recently held that Martinez does not apply to Nevada's statutory post- conviction procedures, see Brown v. McDaniel, Nev. , P.3d (Adv. Op. No. 60, August 7, 2014), and thus, Martinez does not provide good cause for this late and successive petition. Appellant also argues that the district court abused its discretion by failing to hold an evidentiary hearing on his claims. Because

SUPREME COURT OF NEVADA 2 (0) 1947A appellant's allegations in his petition did not demonstrate good cause to overcome the procedural bars, he was not entitled to an evidentiary hearing. See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984) (holding that a petitioner is not entitled to an evidentiary hearing where his claims are unsupported by specific factual allegations that, if true, would have entitled him to relief). Accordingly, we conclude that the district court did not err in denying the petition as procedurally barred, and we ORDER the judgment of the district court AFFIRMED.

Hardesty

CHERRY, J., dissenting: I would extend the equitable rule recognized in Martinez to this case because appellant was convicted of murder and is facing a severe sentence. See Brown v. McDaniel, 130 Nev. , P.3d (Adv. Op. No. 60, August 7, 2014) (Cherry, J., dissenting). Accordingly, I would reverse and remand for the district court to determine whether appellant can demonstrate a substantial underlying ineffective-assistance-of-trial- counsel claim that was omitted due to the ineffective assistance of post-

SUPREME COURT OF NEVADA 3 (0) 1947A conviction counsel. I therefore dissent.

, J.

cc: Hon. Brent T. Adams, District Judge Karla K. Butko Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk

SUPREME COURT OF NEVADA 4 (0) I947A