Heusner (Allen) Vs. Warden

• Court: Nevada Supreme Court
• Decided: March 9, 2021
• Docket: 80871
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

ALLEN STANISLOUIS HEUSNER, No. 80871 Appellant, vs. FILED JERRY HOWELL, WARDEN; AND ATTORNEY GENERAL FOR THE MAR 0 9 2021 STATE OF NEVADA, A. BROWN CLE UPREME COURT Res • ondents. EY TY CLEW(

ORDER OF AFFIRMANCE

This is an appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge. Appellant Allen Stanislouis Heusner argues that the district court erred in denying his petition as procedurally barred. We affirm. Heusner filed the petition eight years after rernittitur issued on his direct appeal. Heusner v. State, Docket No. 52023 (Order of Affirmance, May 3, 2010). Thus, his petition was untimely filed. See NRS 34.726(1). The petition was also successive because he had previously litigated several postconviction petitions for a writ of habeas corpus. See NRS 34.810(1)(b), (2); Heusner v. State, Docket No. 78800-COA (Order of Affirmance, March 12, 2020); Heusner v. State, Docket No. 70381-COA (Order of Affirmance, January 19, 2017); Heusner v. State, Docket No. 62055 (Order of Affirmance, November 14, 2013). Heusner's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b), (3). Good cause may be demonstrated by a showing that the factual or legal basis for a claim was not reasonably available to be raised in a timely petition. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). The district court concluded that Heusner demonstrated good cause based on the recent decision in McCoy v. Louisiana, 138 S. Ct. 1500 (2018), but determined that the petition was procedurally barred because he did not demonstrate a meritorious claim based on McCoy. Although we conclude that McCoy does not provide good cause, we nevertheless affirm the district court's order because it reached the correct result in denying the petition. See Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970). Heusner argues that the Supreme Court's recent decision in McCoy provides good cause and warrants relief because his trial counsel conceded guilt without his informed consent. He is mistaken, as McCoy is distinguishable. McCoy holds that an attorney may not concede a defendant's guilt of a charged crime where the defendant expressly objects or insists on maintaining his or her innocence. 138 S. Ct. at 1509. McCoy differentiated a defendant who opposed counsel's concession from a defendant who "'was generally unresponsive during discussions of trial strategy, and 'never verbally approved or protested"' the concession. Id. (quoting Florida v. Nixon, 543 U.S. 175, 181 (2004)). McCoy did not hold that a defendant must expressly consent to a concession or that a canvass must precede a concession. See id.; see also Nixon, 543 U.S. at 186-92 (rejecting notion that concession strategy requires express consent or that it is the functional equivalent of a guilty plea).1 Here, trial counsel conceded that Heusner committed voluntary manslaughter while arguing that the evidence did not show that Heusner was guilty of murder or the other charged offenses. During the proceedings on his first, timely petition, Heusner acknowledged that he discussed this strategy with counsel and did not object or insist on a contrary defense.

1 Notab1y, McCoy did not alter the holding in Nixon. McCoy, 138 S. Ct. at 1509. SUPREME COVRT Of NEVADA 2 to) I947A Ogibs Because McCoy therefore is distinguishable, we need not resolve Heusner's argument that McCoy applies retroactively. Accordingly, Heusner has not shown that McCoy provides good cause. Thus, we conclude that the district court ultimately correctly applied the mandatory procedural bars. See State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 231, 233, 112 P.3d 1070, 1074, 1075 (2005). Having considered Heusner's contentions and concluded that they do not warrant relief, we ORDER the judgment of the district court AFFIRMED.

Al4G4,0 J. Stiglich

Silver

cc: Chief Judge, Eighth Judicial District Court Department 5, Eighth Judicial District Court Federal Public Defender/Las Vegas Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk