Rowell (Lamarr) v. State C/W 61870 ( 2013 )

 appellant's petition was an abuse of the writ as he raised claims new and
different from those raised in his previous petition. 2 See NRS 34.810(2).
Appellant's petition was procedurally barred absent a demonstration of
good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3).
Appellant first claimed that, 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), counsel was ineffective in advising him to reject a plea
offer from the State, and because those cases were just decided on March
21, 2012, they provided good cause to excuse his procedural bars.
Appellant's good-cause argument was without merit because his case was
final when Cooper and Frye were decided, and he failed to demonstrate
that the cases would apply retroactively to him. Even if Cooper and Frye
announced new rules of constitutional law, he 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, appellant claimed that the decision in Martinez v. Ryan,
566 U.S. , 132 S. Ct. 1309 (2012), provided good cause because the lack
of assistance of post-conviction counsel prevented him from complying
with post-conviction procedures and developing claims of ineffective
2Rowell v. State, Docket No. 54708 (Order Affirming in Part,
Reversing in Part and Remanding, April 8, 2010). An amended judgment
of conviction was entered on June 14, 2010. The amended judgment of
conviction would not provide good cause in the instant case because the
petition is late from the amended judgment of conviction and appellant
does not challenge the amended judgment of conviction. See Sullivan v.
State, 120 Nev. 537, 541, 96 P.3d 761, 764 (2004).
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assistance of counsel. We conclude that the district court did not err in
denying this claim. First, appellant's reliance upon Martinez was
misplaced as Martinez relates to federal procedural bars and not state
procedural bars. Thus, the holding in Martinez would not provide good
cause because it is inapplicable in state court. Second, appellant never
requested the district court to appoint counsel in the first post-conviction
proceedings. Third, the factual basis for appellant's claims was readily
available to appellant at the time he filed his first petition. See Hathaway
v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). Finally, appellant's
ignorance of procedural rules would not provide good cause for the
procedural defects. See Phelps v. Dir., Prisons, 104 Nev. 656, 764 P.2d
1303 (1988). Therefore, we affirm the order of the district court denying
the petition as procedurally barred.
Docket No. 61870
Appellant filed his petition on June 14, 2012, more than two
years after issuance of the remittitur on direct appeal on January 15,
2010. Rowell v. State, Docket No. 51789 (Order of Affirmance, September
9, 2009). Thus, appellant's petition was untimely filed. See NRS
34.726(1). Moreover, appellant's petition was an abuse of the writ as he
raised claims new and different from those raised in his previous petition. 3
See NRS 34.810(2). Appellant's petition was procedurally barred absent a
demonstration of good cause and actual prejudice. See NRS 34.726(1);
NRS 34.810(3).
3 Appellantfiled a post-conviction petition for a writ of habeas corpus
on January 28, 2010, but withdrew the petition on July 6, 2010.
Appellant's second petition was denied on June 1, 2012, but appellant did
not appeal the decision.
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BEIM
Appellant claimed that the decision in Martinez v. Ryan, 566
U.S. , 132 S. Ct. 1309 (2012), provided good cause because the lack of
assistance of post-conviction counsel prevented him from complying with
post-conviction procedures. We conclude that the district court did not err
in denying this claim. As discussed previously, Martinez relates to federal
procedural bars and would not provide good cause because it is
inapplicable in state court. Second, appellant never requested the district
court to appoint counsel in the first post-conviction proceedings, which he
subsequently withdrew. Third, the factual basis for appellant's claims
was readily available to appellant at the time he filed his first petition.
See Hathaway, 119 Nev. at 252, 71 P.3d at 506. Finally, appellant's
ignorance of procedural rules would not provide good cause for the
procedural defects. See Phelps, 104 Nev. 656, 764 P.2d 1303. Therefore,
we affirm the order of the district court denying the petition as
procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Saitta
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1513allEMMES
cc: Hon. Elissa F. Cadish, District Judge
Lamarr Rowell
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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ESEREIMANBIESITUJIKI Nib