Cardenas (Joel) Vs. Warden ( 2021 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
JOEL CARDENAS, No. 82364
Appellant,
vs. FILED
RENEE BAKER, WARDEN,
Respondent. NOV 1 Q 2021
ELIZABETH A. BROWN
CLERK OF SUPREME COURT
Y
ORDER OF AFFIRMANCE OE' CLERX
This is an appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Fifth Judicial District
Court, Nye County; Robert W. Lane, Judge. Appellant Joel Cardenas
argues that the district court erred in denying his petition as procedurally
barred. We affirm.
Cardenas filed the petition seven years after remittitur issued
on his direct appeal. Cardenas v. State, Docket No. 58595 (Order of
Affirmance, April 11, 2012). Thus, his petition was untimely filed. See NRS
34.726(1). The petition was also successive because he had previously
litigated a postconviction petition for a writ of habeas corpus. See NRS
34.810(1)(b), (2); Cardenas v. State, Docket No. 65222 (Order of Affirmance,
January 15, 2015). Accordingly, Cardenas 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). Further, as the State specifically pleaded
laches, Cardenas had to overcome the presumption of prejudice to the State.
See NRS 34.800(2).
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Cardenas argues that the Supreme Court's recent decision in
McCoy v. Louisiana, 138 S. Ct. 1500 (2018), provides good cause because his
trial counsel contradicted his defense and thus conceded guilt. 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 did not hold that a defendant must expressly consent to a
concession or that a canvass must precede a concession. See id.; see also
Florida v. Nixon, 543 U.S. 175, 186-92 (2004) (rejecting notion that
concession strategy requires express consent or that it is the functional
equivalent of a guilty plea)."
Here, the record repels Cardenas claims that trial counsel
conceded his guilt. Cardenas expressed his intent to maintain his innocence
when he testified that the sexual encounter was consensual. Counsel,
however, did not concede guilt in opening statement or closing argument
when counsel represented that the victim was drunk during the incident,
such that her memory was purportedly unreliable. Not only did this
argument accord with Cardenas' testimony, but any slight discrepancy
would fall within counsel's province and would not amount to infringing on
Cardenas' broader decision to maintain his innocence. See McCoy, 138 S.
Ct. at 1508 (distinguishing counsers trial management including deciding
what arguments to make from a defendant's decision whether to maintain
innocence). Moreover, the record belies Cardenas' argument that counsel
conceded guilt by arguing or implying that the victim was too intoxicated to
'Notably, McCoy did not alter the holding in Nixon. McCoy, 138 S.
Ct. at 1509.
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consent, as counsel did not. And Cardenas argument that counsel conceded
his guilt when counsel stated if the jury found Cardenas guilty, it should
only find him guilty of attempted sexual assault also fails.2 In context,
counsel never conceded that the evidence showed that Cardenas was guilty
of attempted sexual assault; to the contrary, he argued the opposite mere
seconds earlier. Counsel's argument did not relieve the State of its burden
to demonstrate Cardenas' guilt beyond a reasonable doubt when taken in
context. See Arrnenta-Carpio v. State, 129 Nev. 531, 534, 306 P.3d 395, 397
(2013) (recognizing "that conceding guilt relieves the State of its burden of
proof for an offense"). Because McCoy is distinguishable, we need not
resolve Cardenas' argument that McCoy applies retroactively. Cf. Edwards
v. Vannoy, 141 S. Ct. 1547, 1562 (2021) ([N]ew procedural rules apply to
cases pending in trial courts and on direct review. But new procedural rules
do not apply retroactively on federal collateral review."). Accordingly,
Cardenas has not shown that McCoy provides good cause.
Next, Cardenas argues that ineffective assistance of
postconviction counsel provides good cause. We disagree. Cardenas was
not entitled to the effective assistance of postconviction counsel in a
noncapital case. See Brown v. McDaniel, 130 Nev. 565, 569, 331 P.3d 867,
870 (2014) (concluding that claims of ineffective assistance of postconviction
2Specifically, counsel argued—
You have to look at this sexual assault—guilty or
not guilty—or attempt sexual assault—guilty or
not guilty. I would respectfully submit to you that
based upon the evidence that you've heard in this
courtroom, the appropriate verdict is not guilty.
However, in a worst, worst, worst scenario, this was
at best an attempt sexual assault.
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counsel in noncapital cases do not constitute good cause for a successive
petition because there is no entitlement to appointed counsel). We decline
Cardenas request to overrule or reconsider Brown.
Further, Cardenas has not demonstrated the district court
erred in determining the petition was barred by laches. The State
sufficiently pleaded laches, and prejudice was presumed based on the more-
than-five-year period from the decision on direct appeal. NRS 34.800(2).
Cardenas has not overcome the presumption of prejudice to the State. See
NRS 34.800(1) (requiring a petitioner to demonstrate a fundamental
miscarriage of justice when the State is prejudiced in its ability to conduct
a retrial and lack of knowledge or exercise of reasonable diligence when the
State is prejudiced in responding to the petition); see also Pellegrini v. State,
117 Nev. 860, 887, 34 P.3d 519, 537 (2001) (recognizing that fundamental
miscarriage of justice requires a showing of actual innocence).
We conclude that the district court correctly applied the
mandatory procedural bars and did not err in determining the petition was
barred by laches. See State v. Eighth Judicial Dist. Court (Riker), 121 Nev.
225, 231, 233, 112 P.3d 1070, 1074, 1075 (2005). We therefore
ORDER the judgment of the district court AFFIRMED.3
/ , C.J.
Hardesty
•
J.
Cadish
3The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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cc: Hon. Robert W. Lane, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Nye County District Attorney
Nye County Clerk
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