Castillo (Juan) v. Warden

Opinion

specifically pleaded laches, Castillo was required to overcome the rebuttable presumption of prejudice. NRS 34.800(2).

Castillo argues that the district court erred in dismissing his claim that his two consecutive sentences of life without the possibility of parole violate the Eighth Amendment. He also contends that his sentence violates U.S. Supreme Court precedent as announced in Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, U.S. , 132 S. Ct. 2455 (2012). He asserts that his sentencing hearing did not comply with the requirements of Miller. Citing Martinez v. Ryan, 566 U.S. 132 S. Ct. 1309 (2012), he argues that the district court erred in concluding that ineffective assistance of post-conviction counsel did not establish good cause for his failure to raise these claims sooner.

We conclude that this argument lacks merit. The ineffective assistance of post-conviction counsel is not good cause in the instant case because the appointment of counsel in the prior post-conviction proceedings was not statutorily or constitutionally required. See Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997); McKague ix Warden, 112 Nev. 159, 164, 912 P.2d 255, 258 (1996). Further, we have recently held that Martinez does not apply to Nevada's statutory post-conviction procedures, see Brown v. McDaniel, 130 Nev. „ 331 P.3d 867, 872- 73 (2014), and thus, Martinez does not provide good cause for this late and successive petition.

To the extent that Castillo argues that Graham and Miller provide good cause to file a post-conviction petition and regardless of whether Miller may be retroactively applied to Castillo's sentence, we conclude that this argument lacks merit. Graham prohibits a court from sentencing a juvenile offender to a sentence of life without the possibility

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(0) 1947A sem of parole for a nonhomicide offense and Miller prohibits a court from sentencing a juvenile convicted of homicide to a mandatory life-withoutthe -possibility-of-parole sentence. Miller, U.S. at , 132 S. Ct. at 2475; Graham, 560 U.S. at 79. Neither precedent applies to Castillo's case. The jury had discretion to sentence Castillo to life without the possibility of parole, life with the possibility of parole after twenty years, or a definite term of fifty years with parole eligibility after twenty years for first-degree murder. 2 1995 Nev. Stat., ch. 443, § 44, at 1181-82. Accordingly, the district court did not err in dismissing his petition without conducting an evidentiary hearing, and we ORDER the judgment of the district court AFFIRMED. 3

J.

2 The State withdrew its notice of intent to seek the death penalty prior to trial.

3 We deny Castillo's motion for oral argument.

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(0) 1947A e cc: Hon. Scott N. Freeman, District Judge Federal Public Defender/Las Vegas Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk

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