McMahon (Johnny) v. State ( 2014 )

 Appellant filed a post-conviction petition for a writ of habeas
corpus on April 24, 2013, 2 more than three years after issuance of the
remittitur on direct appeal on December 22, 2009. See McMahon v. State,
Docket No. 52071 (Order of Affirmance, October 16, 2009). Appellant's
petition was therefore untimely filed. See NRS 34.726(1). Appellant's
petition was also successive and an abuse of the writ 3 See NRS
34.810(1)(b)(2); NRS 34.810(2). Appellant's petition was therefore
procedurally barred absent a demonstration of good cause and actual
prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3).
Appellant first argued that, pursuant to Martinez v. Ryan, 566
U.S. 132 S. Ct. 1309 (2012), he had good cause to excuse the
procedural bars because he received ineffective assistance from post-
conviction counsel Ineffective assistance of post-conviction counsel was
not good cause in the instant case because the appointment of counsel in
the prior post-conviction proceeding 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
2 Appellant's
petition included several claims that he received
ineffective assistance from attorney Paul Wommer, who was retained to
represent appellant at trial and who was appointed to represent him on
direct appeal.
3McMahon v. State, Docket No. 60247 (Order of Affirmance, June 13,
2013).
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Nevada's statutory post-conviction procedures, see Brown v. McDaniel,
Nev. P.3d (Adv. Op. No. 60, August 7, 2014), and thus,
Martinez did not provide good cause for this late, successive, and abusive
petition.
Appellant next argued that he had good cause to excuse the
procedural bars because the lower courts never had jurisdiction over his
case. Specifically, appellant argued that he was not timely brought before
a magistrate for a probable-cause determination after his arrest, that the
delay prevented the justice court from obtaining jurisdiction over his case,
and that the justice court thus had no jurisdiction to confer on the district
court when it bound his case over so that the district court never obtained
jurisdiction. Appellant's claims did not implicate the jurisdiction of the
courts. See Nev. Const. art. 6, § 6, art. 8, §1; NRS 171.010; Huebner v.
State, 103 Nev. 29, 32, 731 P.2d 1330, 1333 (1987) ("Mere delay between
arrest and arraignment, without some showing of prejudice to defendant's
constitutional rights, does not deprive the court of jurisdiction to
proceed."); see generally Powell v. State, 113 Nev. 41, 44-47, 930 P.2d 1123,
1126 (1997) (applying harmless error analysis to a violation of the
requirement for a probable-cause determination with 48 hours).
Appellant next argued that he had good cause to excuse the
procedural bars because the district court's order denying appellant's first
post-conviction petition did not address his claims regarding the
appointment of trial counsel as appellate counsel. Appellant did not raise
this on his appeal from that order. Even if the district court's failure to
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address those claims could constitute good cause, appellant failed to
demonstrate actual prejudice because the claims lacked merit. First, trial
counsel had a duty to file the notice of appeal where appellant expressed
dissatisfaction with the outcome at sentencing. Toston v. State, 127 Nev.
„ 267 P.3d 795, 799-800 (2011). Second, ineffective-assistance-of-
counsel claims areS generally inappropriate on direct appeal. Pellegrini v.
State, 117 Nev. 860, 882-83, 34 P.3d 519, 534 (2001). Third, appellate
counsel's inability or failure to include such claims on direct appeal did not
indicate any divided loyalties such "that an actual conflict of interest
adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S.
335, 350 (1980); Clark v. State, 108 Nev. 324, 326, 831 P.2d 1374, 1376
(1992). Finally, appellant had no constitutional right to represent himself
on direct appeal, see Martinez v. Court of Appeal of Cal., 528 U.S. 152, 163
(2000); Blandino v. State, 112 Nev. 352, 354-55, 914 P.2d 624, 626 (1996),
and although he had a qualified right to retain counsel of his choice, see
Patterson v. State, 129 Nev. „ 298 P.3d 433, 438 (2013), cert.
denied, U .S. , 134 S. Ct. 1280 (2014), he did not have the right to
choose his appointed counsel, see Young v. State, 120 Nev. 963, 968, 102
P.3d 572, 576 (2004).
Appellant next argued that he had good cause to excuse the
procedural bars because of newly discovered evidence that his trial and
appellate counsel was later prosecuted for crimes involving dishonesty and
that, in his defense, former counsel claimed to suffer from a "diminished
capacity" to understand the law due to a decades-old skiing accident.
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Appellant's argument did not explain why he failed to raise his new claims
of ineffective assistance of trial and/or appellate counsel in his first post-
conviction petition, and accordingly, he failed to overcome any procedural
bars to those claims. See Hathaway v. State, 119 Nev. 248, 252-53, 71
P.3d 503, 506 (2003). Further, even if such new evidence could
demonstrate cause, appellant failed to demonstrate actual prejudice.
Neither the district court's denial of appellant's first post-conviction
petition, nor this court's affirmance of that denial, turned on the
credibility or even specific legal knowledge of trial and appellate counsel.
See McMahon v. State, Docket No. 60247 (Order of Affirmance, June 13,
2013).
Appellant next argued that he had good cause to excuse the
procedural bars because the State withheld exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963). While a Brady
violation may satisfy the requirements for good cause and actual
prejudice, State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003), the
Brady claim must be raised within a reasonable time after discovery of the
withheld evidence, State v. Huebler, 128 Nev. , n.3, 275 P.3d 91, 95
n.3 (2012), cert. denied, U.S. , 133 S. Ct. 988 (2013); see also
Hathaway, 119 Nev. at 254-55, 71 P.3d at 507-08. Appellant filed a proper
person document that included a copy of the allegedly withheld evidence
on January 22, 2010, four months before he filed his first post-conviction
petition and more than four years before he filed the instant petition.
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Appellant thus failed to raise his Brady claim within a reasonable time of
discovering the evidence.
Appellant next argued that he had good cause to excuse the
procedural bars because he needed to exhaust claims in order to raise
them in this court and in federal court and because he received ineffective
assistance from trial and appellate counsel. "[A] claim or allegation that
was reasonably available to the petitioner during the statutory time
period would not constitute good cause." Hathaway, 119 Nev. at 253, 71
P.3d at 506. Appellant failed to demonstrate that his underlying claims
were unavailable to be raised in his first, timely post-conviction petition.
Appellant next argued that he had good cause to excuse the
procedural bars because he was actually innocent such that denying
consideration of his substantive claims would result in a fundamental
miscarriage of justice. Appellant did not demonstrate actual innocence
because he failed to show that "it is more likely than not that no
reasonable juror would have convicted him in light of. . . new evidence."
Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup v. Delo,
513 U.S. 298, 327 (1995)); see also Pellegrini v. State, 117 Nev. 860, 887, 34
P.3d 519, 537 (2001); Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920,
922 (1996). We therefore conclude that the district court did not err in
denying his petition as procedurally barred.
To the extent appellant is challenging the denial of a petition
for a writ of mandamus, based upon our review of the record on appeal, we
conclude that the district court did not abuse its discretion in disposing of
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the petition. See NRS 34.160; NRS 34.170. Finally, because no statute or
court rule permits an appeal from an order denying any of the remainder
of appellant's motions, we lack jurisdiction as to those motions and dismiss
the appeal in part. See Castillo v. State, 106 Nev. 349, 352, 792 P.2d 1133,
1135 (1990). For the foregoing reasons, we
ORDER the judgments of the district court AFFIRMED and
DISMISS the appeal in part. 4
h-L free-42Th
Hardesty
Douglas
4We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
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cc: Hon. Jennifer P. Togliatti, Chief Judge
Hon. David B. Barker, District Judge
Johnny Edward McMahon
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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