Harris v. State

133 Nev., Advance Opinion 65
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

LAMAR ANTWAN HARRIS, No 7Ø6
Appellant,
vs.
FILED
THE STATE OF NEVADA, NOV 1 6 2017
Respondent.
at digg7TZ■
al; IIIIena

Appeal from an order of the district court dismissing
postconviction petition for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; Carolyn Ellsworth, Judge.
Reversed and remanded.

Carling Law Office, PC, and Matthew D. Carling, Las Vegas,
for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Jonathan E. Van Boskerck, Chief Deputy District
Attorney, Clark County,
for Respondent.

BEFORE SILVER, C.J., TAO and GIBBONS, JJ.

OPINION
By the Court, GIBBONS, J.:
This case arises from an untimely postconviction petition for a
writ of habeas corpus stemming from a conviction, entered pursuant to a
jury verdict, of battery with the use of a deadly weapon resulting in
substantial bodily harm. In his petition and supplement, appellant Lamar
Antwan Harris alleged he had good cause for the delay in filing the
petition because he believed counsel had filed a petition on his behalf, his
belief was reasonable, and he filed the petition within a reasonable time of

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 discovering his petition had not been filed. The district court dismissed
the petition as procedurally time-barred.
In this appeal, we consider whether counsel's affirmative
misrepresentation regarding filing a postconviction petition and
subsequent abandonment of the petitioner can be an impediment external
to the defense to satisfy cause for the delay under NRS 34.726(1)(a) for
filing an untimely petition. We conclude it can. We hold that to
demonstrate cause for the delay under NRS 34.726(1)(a) in such a
circumstance, a petitioner must show: (1) the petitioner believed counsel
filed a petition on petitioner's behalf; (2) this belief was objectively
reasonable; (3) counsel abandoned the petitioner without notice and failed
to timely file the petition; and (4) the petitioner filed the petition within a
reasonable time after the petitioner should have known counsel did not
file a petition. Because we conclude Harris demonstrated cause for the
delay under the approach set forth above, we reverse the district court's
order and we remand for further proceedings.
PROCEDURAL AND FACTUAL HISTORY
Harris was convicted of battery with the use of a deadly
weapon resulting in substantial bodily harm and was sentenced to 70 to
175 months in prison. After sentencing, Harris opted to have his previous
counsel withdraw and he hired new counsel, Leslie Park, to represent him
in his post-trial proceedings. Through Park, Harris filed a direct appeal
from his judgment of conviction. Harris' conviction was affirmed on direct
appeal. Harris v. State, Docket No. 59817 (Order of Affirmance, Dec. 13,
2012).
More than two years after the remittitur on direct appeal
issued, Harris filed an untimely pro se postconviction petition for a writ of
habeas corpus. As good cause to excuse the untimely filing, Harris
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 claimed he reasonably believed Park had filed a petition on his behalf, and
when he discovered she had not, he filed his petition within a reasonable
time after that discovery.
The district court concluded Harris might be able to establish
good cause to overcome the procedural bar and appointed counsel to
supplement Harris' petition. In the supplement, counsel argued for an
extension of the Hathaway' reasoning regarding good cause when counsel
fails to file a direct appeal from a judgment of conviction. Specifically,
counsel argued cause to excuse the procedural time bar should exist in
situations where a defendant reasonably believes counsel filed a
postconviction petition on his behalf, and the petitioner files a petition
within a reasonable time of realizing counsel did not file a petition.
The district court scheduled an evidentiary hearing on Harris'
good cause claim. However, on the scheduled hearing date, a senior judge
presided over the proceedings, declined to hold an evidentiary hearing,
and denied the petition. The district court subsequently granted Harris'
motion for reconsideration and held an evidentiary hearing.
At the hearing, Harris testified he hired Park to represent him
for both his appeal and his postconviction petition and claimed they
agreed to a fee arrangement of $8,000 for handling both cases. After
initially denying she agreed to represent Harris for his postconviction
petition, Park agreed she was retained for both the direct appeal and the
petition. She also agreed the fee was $8,000, but stated Harris had only
paid her about half of that.

'Hathaway v. State, 119 Nev. 248, 254-55, 71 P.3d 503, 507-08
(2003).

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 Harris testified he received a copy of a document drafted by
Park entitled "Petition for Writ of Habeas Corpus" approximately five
months after the remittitur issued in his direct appeal. The petition was
signed by Park and included information causing it to appear as though it
had been served on the Clerk of the Supreme Court, the Clark County
District Attorney, and the Nevada Attorney General. The caption also
indicated it was being filed in the Nevada Supreme Court.
Harris testified that sometime later he was informed by a
fellow inmate his petition was filed in the wrong court. In December of
2013, before the expiration of the one-year time limit for filing a
postconviction petition, Harris contacted counsel to point this error out
and she told him she would immediately correct it and file it in the district
court. Throughout 2014, Harris attempted to contact Park to no avail.
Because he understood postconviction proceedings could take
some time, Harris waited until December of 2014 to contact the district
court and the Nevada Supreme Court to inquire into the status of his
petition. Between the end of December 2014 and the beginning of January
2015, Harris learned his petition had not been filed in either the district
court or the Nevada Supreme Court. Harris then filed his petition on
March 11, 2015.
Park confirmed at the evidentiary hearing she never filed the
petition. Park claimed she was waiting for Harris to pay her the
remainder of her fee before filing the petition. She stated she signed the
petition and filled out the certificate of service in case Harris paid her
right before the deadline to file.
After hearing this testimony, the district court concluded
Harris' testimony was more credible than Park's because Park's responses

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 were equivocal in nature, Park stated she lacked knowledge in response to
many questions, and she conceded to many of the factual allegations put
forth by Harris. Although troubled by Park's performance, the district
court also concluded Harris did not demonstrate good cause to overcome
the procedural time-bar. Specifically, the district court concluded
Hathaway could not be extended because "Hathaway's holding was clearly
couched in the fact that the petitioner there had a Sixth Amendment right
to the effective assistance of counsel on direct appeal, a claim that could
excuse his late petition filing." The district court further concluded,
because Harris was not entitled to the effective assistance of
postconviction counsel, he was "precluded from relying upon a claim of
ineffective assistance of counsel to show good cause to excuse the
procedural default." Therefore, the district court granted the State's
motion and dismissed the petition as procedurally time-barred. This
appeal follows.
DISCUSSION
Harris claims the district court erred by denying his petition
as procedurally barred. He asserts he demonstrated cause and prejudice
to excuse the procedural time-bar because his counsel's actions prevented
him from timely filing a postconviction petition and deprived him of his
statutory right to seek postconviction relief
Pursuant to NRS 34.726(1), a postconviction petition for a writ
of habeas corpus "must be filed within one year after entry of the
judgment of conviction or, if a timely appeal is taken from the judgment,
within one year after [the Nevada Supreme Court] issues its remittitur,
absent a showing of good cause for thefl delay." State v. Huebler, 128 Nev.
192, 197, 275 P.3d 91, 94 (2012). Harris filed a direct appeal from his
judgment of conviction and the remittitur issued on January 9, 2013.
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 However, Harris did not file his petition until March 11, 2015, more than
two years after the remittitur issued. Thus, Harris' petition was
procedurally barred absent a demonstration of good cause for the delay.
"[GI ood cause for delay exists if the petitioner demonstrates to
the satisfaction of the court: (a) [t]hat the delay is not the fault of the
petitioner; and (b) [Chat dismissal of the petition as untimely will unduly
prejudice the petitioner." NRS 34.726(1). "Generally, good cause means a
substantial reason; one that affords a legal excuse." Colley v. State, 105
Nev. 235, 236, 773 P.2d 1229, 1230 (1989) (internal quotation marks
omitted), abrogated by statute on other grounds as recognized by Huebler,
128 Nev. at 197 n.2, 275 P.3d at 95 n.2.
Harris was not entitled to the effective assistance of
postconviction counsel and he could not establish good cause to excuse the
delay in filing his petition based on a claim of ineffective assistance of
counsel. See Brown v. McDaniel, 130 Nev. , 331 P.3d 867, 870
(2014) (recognizing a claim of ineffective assistance of counsel does not
constitute good cause to excuse the procedural bar where a petitioner does
not have a Sixth Amendment or statutory right to the appointment of
counsel). Harris, however, argues there is a distinction between a claim of
ineffective assistance of counsel for purposes of habeas relief and a good
cause claim that counsel's actions interfered with or created an
impediment that prevented a petitioner from filing a postconviction
petition within the procedural time limits. He argues there are some
circumstances where counsel's actions can be an impediment external to
the defense and establish undue prejudice to satisfy good cause under
NRS 34.726(1) for filing an untimely petition. He asserts the Nevada
Supreme Court identified such a circumstance in Hathaway. Harris

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 argues his counsel's actions in this case represent another such
circumstance, and he urges this court to adopt a test, similar to the one in
Hathaway, for evaluating a claim of good cause based on a petitioner's
reliance on counsel's affirmative misrepresentation that counsel had, or
was going to, timely file a petition on the petitioner's behalf.
Cause for the delay under NRS 34.726(1)(a)
In order to show the delay was not the fault of the petitioner,
"a petitioner must show that an impediment external to the defense
prevented him or her from complying with the state procedural default
rules." Hathaway, 119 Nev. at 252, 71 P.3d at 506. "In terms of a
procedural time-bar, an adequate allegation of good cause would
sufficiently explain why a petition was filed beyond the statutory time
period." Id. at 252-53, 71 P.34 at 506.
Generally, "mere attorney error, not rising to the level of
ineffective assistance of counsel, such as attorney ignorance or
inadvertence," will not constitute cause to overcome a procedural bar
"because the attorney is the petitioner's agent when acting, or failing to
act, in furtherance of the litigation, and the petitioner must 'bear the risk
of attorney error." Crump v. Warden, 113 Nev. 293, 304, 934 P.2d 247,
253(1997) (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). But
there is an "essential difference between a claim of attorney error,
however egregious, and a claim that an attorney had essentially
abandoned his client." Maples v. Thomas, 565 U.S. 266, 282 (2012).
Where counsel severs the principal-agent relationship and abandons his
client without notice, the actions or omissions of counsel 'cannot fairly be
attributed to [the client]." Id. at 281 (quoting Coleman, 501 U.S. at 753).
In such a situation, counsel's actions or omissions then become an

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 impediment external to the defense and may constitute good cause to
overcome the procedural bars. Id. at 283.
As noted by Harris, in Hathaway, the Nevada Supreme Court
identified one circumstance where counsel's omission can constitute an
impediment external to the defense and a petitioner can establish good
cause for the delay under NRS 34.726(1). 119 Nev. at 252-55, 71 P.3d at
506-08. Hathaway asserted he had good cause to file an untimely petition
because he asked counsel to file a direct appeal on his behalf, counsel
affirmatively indicated he would file an appeal, Hathaway believed his
counsel had filed an appeal, and Hathaway filed his petition within a
reasonable time after learning his counsel did not file an appeal. Id. at
254, 71 P.3d at 507. The Hathaway court held a claim that counsel
deprived the petitioner of a direct appeal could provide good cause to
excuse the procedural time-bar. Id. at 253-55, 71 P.3d 507-08. The
Hathaway court then set forth a "test for evaluating an allegation of good
cause based upon a petitioner's mistaken belief that counsel had filed a
direct appeal." Id. at 254-55, 71 P.3d at 507-08.
Consistent with Hathaway, we hold counsel's affirmative
representation that a timely postconviction petition will be filed,
combined with counsel's subsequent abandonment without timely filing
the petition, presents a circumstance where counsel's actions or omissions
can constitute an impediment external to the defense to establish cause
for the delay under NRS 34.726(1)(a). Using the framework in Hathaway,
we establish the following test for evaluating an allegation of cause for the
delay based on such a circumstance.
First, a petitioner must show the petitioner believed counsel
filed a timely petition on petitioner's behalf. Second, the petitioner must

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 show this belief was objectively reasonable, i.e., there was an attorney-
client relationship and counsel affirmatively told or represented to the
petitioner counsel had, or was going to, timely file a petition on the
petitioner's behalf. Third, the petitioner must show counsel then
abandoned petitioner without notice and failed to timely file the petition.
We emphasize that the petitioner must demonstrate abandonment by
counsel to satisfy this prong of the test; mere attorney negligence, such as
miscalculating a filing deadline, will not suffice. Fourth, the petitioner
must show the petition was filed within a reasonable time after the
petitioner should have known counsel did not timely file a petition. This
prong requires the petitioner to be reasonably diligent in determining
whether the petition was actually filed.
If a petitioner can meet all prongs of this test, the petitioner
will have established cause for the delay under NRS 34.726(1)(a). This is
so because, in such a circumstance, counsel's abandonment of the
petitioner will constitute an impediment external to the defense that
prevented the petitioner from timely pursuing postconviction relief.
Undue prejudice under NRS 34.726(1)(b)
Under NRS 34.726(1)(b), a petitioner must also demonstrate
there will be undue prejudice by dismissal of the petition as untimely. In
Huebler, the Nevada Supreme Court stated that to show undue prejudice
under NRS 34.726(1)(b), "a petitioner must show that errors in the
proceedings underlying the judgment worked to the petitioner's actual and
substantial disadvantage." 128 Nev. at 197, 275 P.3d at 95. We are
required to follow this test. However, for the reasons discussed below, we
disagree that this is the proper test for determining undue prejudice under
NRS 34.726(1)(b).

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 "Nevada's post-conviction statutes contemplate the filing of
one post-conviction petition to challenge a conviction or sentence." Brown,
130 Nev. at , 331 P.3d at 872. NRS Chapter 34 contains several
different procedural bars that are designed to prevent different• abuses of
the postconviction remedy. "The purpose of the single post-conviction
remedy and the statutory procedural bars is 'to ensure that petitioners
would be limited to one time through the post-conviction system." Id.
(quoting Pellegrini v. State, 117 Nev. 860, 876, 34 P.3d 519, 530 (2001)).
The purpose of the procedural bar in NRS 34.810 is to prevent
a petitioner from raising claims that could have previously been raised,
NRS 34.810(1)(b), and to prevent the filing of multiple petitions, NRS
34.810(2). In contrast, NRS 34.726 and NRS 34.800 are procedural time
bars and the purpose of each is to "ensure that claims are raised before
evidence is lost or memories fade." Lozada v. State, 110 Nev. 349, 358, 871
P.2d 944, 950 (1994). Each of the procedural bars operate independently
of each other. For example, a petition may be procedurally barred under
NRS 34.726(1), but not under NRS 34.810, and vice versa. Further, as the
Pellegrini court noted, it is conceivable that a petitioner could demonstrate
good cause under NRS 34.726, but laches under NRS 34.800 could
nevertheless bar the petition. 117 Nev. at 875, 34 P.3d at 529.
Given the different purposes behind the procedural bars in
NRS 34.726 and NRS 34.810, and taking into account the procedural bars
operate independently of each other, it is unsurprising different terms are
used to describe the prejudice necessary to overcome each procedural bar.
NRS 34.726(1)(b) requires a showing of "undue" prejudice, while NRS
34.810 requires a showing of "actual" prejudice. We must presume that
because the statutes are located within the same chapter but use different

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 modifiers to describe the type of prejudice that must be shown, the type of
prejudice required under each statute is different. See Antonin Scalia &
Bryan A. Garner, Reading Law: Thefl Interpretation of Legal Texts 170
(2012) (IA] material variation in terms suggests a variation in meaning.").
The material difference in terms is further evidenced by the statutory
structure for what is necessary to overcome each procedural bar. NRS
34.726(1) requires only a showing of good cause, which it defines as cause
and undue prejudice. NRS 34.726(1)(a), (b). In contrast, NRS 34.810(3)
requires a showing of both good cause and actual prejudice. This,
however, may not have been considered in the Hue bier decision. Instead,
the Huebler decision appears to conflate the undue prejudice requirement
under NRS 34.726(1)(b) with the actual prejudice requirement under NRS
34.810.
The Huebler decision cites to Hogan v. Warden, 109 Nev. 952,
959-60, 860 P.2d 710, 716 (1993), for the proposition that under NRS
34.726(1)(b), "a petitioner must show that errors in the proceedings
underlying the judgment worked to the petitioner's actual and substantial
disadvantage." Huebler, 128 Nev. at 197, 275 P.3d at 95. Yet the
procedural bar at issue in Hogan was NRS 34.810(3), which requires a
showing of actual prejudice, not NRS 34.726(1), which only requires a
showing of undue prejudice. Because the Huebler decision adopted the
prejudice test set forth in Hogan, a petitioner is now required to show
actual prejudice in order to satisfy the undue prejudice prong under NRS
34.726(1)(b). This requirement, however, is inconsistent with other
Nevada Supreme Court precedent, specifically Hathaway, which Huebler
does not purport to overrule.

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 In Hathaway, the court held prejudice is presumed for the
purposes of NRS 34.726(1)(b) if the petitioner can show a reasonable belief
counsel filed an appeal and the petitioner filed a petition within a
reasonable time of learning a direct appeal had not been filed. 119 Nev. at
255, 71 P.3d at 508. Yet under Huebler's undue prejudice test, undue
prejudice could never have been demonstrated, much less presumed,
under the facts in Hathaway. This is because counsel's failure to file a
direct appeal does not "show that errors in the proceedings underlying the
judgment worked to the petitioner's actual and substantial disadvantage."
Huebler, 128 Nev. at 197, 275 P.3d at 95 (emphasis added). Given the
finding of presumed prejudice in Hathaway, it appears undue prejudice
under NRS 34.726(1)(b) may be established by demonstrating something
other than actual prejudice.
It also appears the prejudice required to overcome the
procedural time-bar and the prejudice required to establish ineffective
assistance of counsel may have been conflated in the Huebler decision.
Huebler found the undue prejudice test under NRS 34.726(1)(b) parallels
the materiality prong for establishing a violation under Brady v.
Maryland, 373 U.S. 83 (1963). Huebler, 128 Nev. at 198, 275 P.3d at 95.
Huebler held, where a Brady violation is alleged in the guilty-plea context
after a specific request has been made, in order to establish undue
prejudice under NRS 34.726(1)(b), a petitioner must show "a reasonable
possibility that but for the failure to disclose the evidence the defendant
would have refused to plead and would have insisted on going to trial." Id.
at 203, 275 P.3d at 99; see also Hill v. Lockhart, 474 U.S. 52, 57-60 (1985)
(setting forth the test for the prejudice prong for establishing ineffective

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 assistance of counsel in the context of a guilty plea). This is inconsistent
with Lozada.
In Lozada, the Nevada Supreme Court stated, "Mlle required
showing of prejudice to establish a claim of ineffective assistance of
counsel is separate and distinct from the showing of prejudice required to
overcome a procedural default." 110 Nev. at 358, 871 P.2d at 949-50.
Despite this, Huebler set forth a prejudice test for the procedural time-bar
that "is similar to the prejudice test that is used to evaluate ineffective-
assistance claims by a defendant who has pleaded guilty." 128 Nev. at
203, 275 P.3d at 98-99. Even in light of this clear inconsistency, Huebler
does not purport to overrule Lozada.
In effect, the Huebler decision ultimately combined the
prejudice prongs of the two procedural bars with each other and with the
prejudice required to demonstrate ineffective assistance of counsel,
resulting in a single standard for prejudice. As noted above, this is
inconsistent with both Lozada and Hathaway. Although we agree a
petitioner who can show actual prejudice under NRS 34.810 can also show
undue prejudice under NRS 34.726(1)(b), we do not believe that showing
actual prejudice is required to establish undue prejudice under NRS
34.726(1)(b). We further do not think that prejudice under the procedural
time-bar should be equivalent to the prejudice required to establish a
claim of ineffective assistance of counsel. Rather, we believe the test for
undue prejudice under NRS 34.726(1)(b) should be separate and distinct
from the test for prejudice to overcome other procedural bars and from the
prejudice required to demonstrate ineffective assistance of counsel.
Therefore, absent any explanation in Hue bier for departing
from earlier precedent, we believe Hathaway and Lozada are the better

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 precedent to follow. Were we free to do so, we would hold, where a
petitioner has demonstrated cause for the delay under the test identified
above, a petitioner will also have demonstrated undue prejudice under
NRS 34.726(1)(b), because the petitioner could show dismissal of the
petition as untimely would contravene the Legislature's intent to allow
convicted persons a single opportunity to seek postconviction relief. 2
We recognize, however, Huebler was decided after Lozada and
Hathaway, and we must presume Huebler intended to implicitly overrule
those cases to the extent they are inconsistent with the test for undue
prejudice announced in Huebler. Under the doctrine of vertical stare
decisis, we have no choice but to follow the precedent established in
Huebler. See, e.g., State v. Nichols, 600 N.W.2d 484, 487 (Neb. 1999)
("Vertical stare decisis compels inferior courts to follow strictly the
decisions rendered by courts of higher rank within the same judicial
system."). Therefore, as stated in Huebler, in order to show undue
prejudice under NRS 34.726(1)(b), "a petitioner must show that errors in
the proceedings underlying the judgment worked to the petitioner's actual
and substantial disadvantage." Huebler, 128 Nev. at 197, 275 P.3d at 95.
As a practical matter, we note that, because this test focuses on errors
underlying the judgment, to evaluate whether a petitioner can
demonstrate undue prejudice under this test, a district court will likely
have to review the merits of the claims raised in the petition.

2We note a petition may be subject to multiple procedural bars. If a
petition were subject to any other procedural bars, including laches, the
petitioner would also have to overcome those procedural bars in order to
have the petition reviewed on its merits.

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 Application to Harris
Based on the district court's factual findings, we conclude
Harris demonstrated cause for the delay under NRS 34.726(1)(a). 3 First,
Harris believed his counsel filed a postconviction petition on his behalf.
Second, based on Park's conduct, it was objectively reasonable for Harris
to believe counsel had filed the petition on his behalf. Park provided
Harris with a copy of a signed postconviction petition with a completed
certificate of service, Park affirmatively represented to Harris she had
filed the petition, and Park again affirmatively represented a petition had
been or was going to be filed when Harris informed her the petition she
provided to him had been filed in the wrong court. Third, Park then
abandoned Harris without notice and failed to file the petition. Fourth,
Harris was reasonably diligent in attempting to determine whether Park
filed a petition on his behalf and he filed his petition within a reasonable
time after he should have known Park did not file a petition on his behalf.
Harris continually attempted to contact Park, he reasonably believed the
postconviction proceedings could take some time, and within a reasonable
time of not hearing from Park, he inquired into his petition with both the
district court and the Nevada Supreme Court. Harris filed his petition
approximately two months after learning Park did not file a petition on his
behalf.
While we can conclude Harris demonstrated cause for the
delay based on the district court's findings, we note the district court did
not make any findings regarding whether Harris could establish undue

3 "We give deference to the district court's factual findings regarding
good cause, but we will review the court's application of the law to those
facts de novo." Huebler, 128 Nev. at 197, 275 P.3d at 95.

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 prejudice, and we make no determination in this regard. As stated
previously, in order to overcome the procedural bar, both prongs of good
cause must be met—cause for the delay and undue prejudice. NRS
34.726(1)(a), (b). Because we conclude Harris demonstrated cause for the
delay under NRS 34.726(1)(a), we reverse the district court's order
dismissing Harris' petition and we remand to the district court to
determine whether Harris demonstrated undue prejudice under NRS
34.726(1)(b). Specifically, the district court must determine whether
Harris showed "that errors in the proceedings underlying the judgment
worked to [his] actual and substantial disadvantage." Huebler, 128 Nev.
at 197, 275 P.3d at 95.
CONCLUSION
We hold counsel's affirmative representation that counsel
has, or will, timely file a postconviction petition, combined with
counsel's subsequent abandonment of the petitioner without timely filing
the petition, presents a circumstance where counsel's actions or
omissions can constitute cause for the delay under NRS 34.726(1)(a) for
filing an untimely postconviction petition. To demonstrate cause for
the delay based on such a circumstance, a petitioner must show: (1) a
reasonable belief counsel filed a petition on petitioner's behalf; (2) this
belief was objectively reasonable; (3) counsel abandoned the petitioner
without notice and failed to file the petition; and (4) the petitioner
filed a petition within a reasonable time after the petitioner should
have known counsel did not file a petition. We conclude Harris
demonstrated cause for the delay under this test. Therefore, we
reverse the district court's order dismissing Harris' petition. Because the
district court did not make any findings regarding whether Harris
established undue prejudice, we remand to the district court to
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 determine whether Harris demonstrated undue prejudice under NRS
34.726(1)(b).

J.

We concur:
.414.g
•
, C .J.
Silver

Tao

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