Hawes (Gary) v. Warden ( 2014 )

 previous petition. 2 See NRS 34.810(1)(b)(2); NRS 34.810(2). Appellant's
petition was procedurally barred absent a demonstration of good cause
and actual prejudice. See MRS 34.726(1); NRS 34.810(1)(b); MRS
34.810(3).
First, relying in part on Martinez v. Ryan, 566 U.S. 132 S.
Ct. 1309 (2012), appellant argued 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.
Second, he claimed that he had good cause because the district
court lacked jurisdiction to sentence him as a habitual criminal because
the State improperly filed the notice of intent. This claim did not
implicate the jurisdiction of the court, see Nev. Const. art. 6, § 6; MRS
171.010, and thus, did not provide good cause.
Finally, appellant claimed that he had good cause pursuant to
Lafler v. Cooper, 566 U.S. , 132 S. Ct. 1376 (2012), and Missouri v.
Frye, 566 U.S. , 132 S. Ct. 1399 (2012), because counsel was ineffective
2Hawes v. State, Docket No. 49322 (Order of Affirmance, March 5,
2008).
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in advising him to reject a plea offer from the State. Appellant's good
cause argument was without merit because this claim of ineffective
assistance of counsel was always available to be raised and appellant
failed to demonstrate why he waited eight years to raise it. Further,
because his case was final when Wier and Frye were decided, he failed to
demonstrate that the cases would apply retroactively to him. Even if
Lafler and Frye announced new rules of constitutional law, he failed to
allege facts that meet 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). Therefore, the district court did not err in
denying the petition, and we
ORDER the judgment of the district court AFFIRMED.
frerA J.
J.
cc: Hon. Brent T. Adams, District Judge
Gary Eugene Hawes
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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