134 Nev., Advance Opinion 11
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
WILLIAM EDWARD BRANHAM, No, 74,743-COA
Appellant,
vs.
Fi D
ISIDRO BACA, WARDEN, DEC 1 3 2018
Respondent.
p•
;LEFIX
Appeal from a district court order dismissing a post -Conviction
petition for a writ of habeas corpus. Second Judicial District Court, Washoe
County; Elliott A. Sattler, Judge.
Affirmed.
Rene L. Valladares, Federal Public Defender, and Jonathan M. Kirshbaum,
Assistant Federal Public Defender, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Terrence P. McCarthy, Chief Appellate Deputy
District Attorney, Washoe County,
for Respondent.
BEFORE SILVER, C.J., TAO and GIBBONS, JJ.
OPINION
PER CURIAM:
In this opinion, we consider whether the United States
Supreme Court decisions in Welch v. United States, 578 U.S. , 136 S. Ct.
1257 (2016), and Montgomery v. Louisiana, 577 U.S. ,
136 S. Ct. 718
(2016), constitute good cause to overcome the procedural bars to a
COURT OF APPEALS
OF
NEVADA
10) 19478 e
postconviction petition for a writ of habeas corpus in which the petitioner
contends he is entitled to the retroactive application of a nonconstitutional
substantive rule. Welch and Montgomery do not alter the threshold
requirement that, for a new substantive rule to apply retroactively, it must
be a constitutional rule. We hold the decisions in those cases do not
constitute good cause to raise a procedurally barred claim arguing a
nonconstitutional rule should be applied retroactively. Therefore, we
conclude the district court did not err by finding Branham failed to
demonstrate good cause or a fundamental miscarriage ofjustice to overcome
the procedural bars to his petition. Accordingly, we affirm.
PROCEDURAL HISTORY
William Edward Branham was convicted in 1993 of first-degree
murder. The Nevada Supreme Court affirmed Branham's conviction on
direct appeal. See Branham v. State, Docket Nos. 24478 & 24648 (Order
Dismissing Appeals, December 18, 1996). Thereafter, Branham filed a
timely postconviction petition for a writ of habeas corpus, which was
resolved on its merits, and a subsequent, procedurally barred petition. The
district court orders resolving those petitions were affirmed on appeal. See
Branham v. State, Docket No. 45532 (Order of Affirmance, November 10,
2005); Branham v. Warden, Docket Nos. 33830 & 33831 (Order Dismissing
Appeals, February 15, 2000).
Branham filed the instant postconviction petition for a writ of
habeas corpus on April 7, 2017, more than 20 years after the remittitur was
issued from his direct appeal. He claimed he is entitled to the retroactive
benefit of the narrowed definition of "willful, deliberate and premeditated"
murder announced in Byford v. State, 116 Nev. 215, 236-37,
994 P.2d 700,
714-15 (2000), and, accordingly, his convictions should be set aside and he
COURT OF APPEALS
should receive a new trial wherein the jury is properly instructed. Although
OF
NEVADA
10) 194M
2
acknowledging his petition was subject to procedural bars, Branham
asserted the recent United States Supreme Court decisions in Welch and
Montgomery provided good cause to raise this claim. The district court
dismissed Branham's petition as procedurally time-barred, finding he failed
to demonstrate good cause or a fundamental miscarriage of justice to
overcome the procedural bars. This appeal follows.
ANALYSIS
Branham claims the district court erred by dismissing his
petition as procedurally barred. Branham acknowledges his petition was
subject to procedural bars, see NRS 34.726(1); NRS 34.810(1)(b), (2), but he
argues the district court erred by finding he failed to demonstrate good
cause or a fundamental miscarriage of justice to overcome the procedural
bars. 1
The application of procedural bars is mandatory, see State v.
Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 231,
112 P.3d 1070, 1074
(2005), but a petitioner may overcome the bars in one of two ways: (1) by
demonstrating good cause and actual prejudice, see NRS 34.726(1); NRS
34.810(3), or (2) by demonstrating actual innocence, such that a
fundamental miscarriage of justice would result were the underlying claims
not heard on the merits, see NRS 34.800(1)(b); Pellegrini v. State, 117 Nev.
860, 887,
34 P.3d 519, 537 (2001). As discussed below, we conclude the
district court did not err by finding Branham failed to overcome the
procedural bars.
'To the extent Branham also claims the district court erred by finding
he failed to demonstrate prejudice, because Branham had to demonstrate
both good cause and prejudice to overcome the procedural bars, see NRS
34.726(1); NRS 34.810(1)(b), (3), and because, as explained below, we
conclude he did not demonstrate good cause, we need not address this claim.
COURT OF APPEALS
OF
NEVADA
(0) I94Th
3
Branham did not demonstrate good cause
To demonstrate good cause to overcome the procedural bars, a
petitioner must offer a legal excuse by showing "that an impediment
external to the defense prevented him . . from complying with the state
procedural default rules." Hathaway v. State, 119 Nev. 248, 252,
71 P.3d
503, 506 (2003). That is, a petitioner must show "that the factual or legal
basis for a claim was not reasonably available . . . or that some interference
by officials, made compliance impracticable." Id. (internal quotation marks
omitted).
Branham claims he demonstrated good cause to overcome the
procedural bars because the recent United States Supreme Court decisions
in Welch and Montgomery expand the reach of federal retroactivity
jurisprudence to state collateral proceedings.
In both Welch and Montgomery, the issue before the Court was
whether an earlier decision announced a new, substantive rule of
constitutional law that must be applied retroactively to cases that were final
when the earlier decision was rendered. See Welch, 578 U.S. at , 136 S.
Ct. at 1261; Montgomery, 577 U.S. at , 136 S. Ct. at 732-34. The question
in Welch was whether the prior decision constituted a new substantive
constitutional rule. 578 U.S. at , 136 S. Ct. at 1261. In deciding this
question, the Court held that whether a rule is characterized as procedural
or substantive depends on the function of the new rule, "not the
constitutional guarantee from which the rule derives." Id. at , 136 S. Ct.
at 1266. The question in Montgomery was whether "the Constitution
requires state collateral review courts to give retroactive effect" to "a new
substantive rule of constitutional law [that] controls the outcome of a case."
577 U.S. at , 136 S. Ct. at 729. The court held the answer was yes. Id.
COURT OF APPEALS
OF
NEVADA
(0) 947B
4
Branham asserts these decisions establish that the substantive
rule exception to the federal retroactivity framework requires states to
apply any new substantive rule, including a decision narrowing the
interpretation of a criminal statute, retroactively. In particular, Branham
claims that Welch implies "the clarification/change in law dichotomy [in
retroactivity analysis] has become essentially obsolete" and, after Welch,
the only relevant question is whether the new interpretation represents a
new substantive rule. Branham argues that the decision in Byford set forth
a new substantive rule and, as a result, the decisions in Welch and
Montgomery provide a legal basis that was not previously available to
support his underlying claim that he is entitled to the retroactive
application of Byford. Branham is mistaken as to the implications of the
holdings of Welch and Montgomery.
The United States Supreme Court first set out its modern
retroactivity framework in the plurality opinion Teague v. Lane, 489 U.S.
288 (1989). Teague established that new constitutional rules, i.e., rules of
criminal procedure that have an underlying constitutional source, generally
do not apply retroactively to convictions that were final when the new
constitutional rule was announced. Id. at 306-07. However, Teague
recognized two categories of constitutional rules that are not subject to its
retroactivity bar. Montgomery, 577 U.S. at , 136 S. Ct. at 728. "First,
courts must give retroactive effect to new substantive rules of constitutional
law." Id. "Second, new watershed rules of criminal procedure, which are
procedural rules implicating the fundamental fairness and accuracy of the
criminal proceeding, will also have retroactive effect." Welch, 578 U.S. at
, 136 S. Ct. at 1264 (internal quotation marks omitted). The threshold
requirement for the applicability of Teague's retroactivity framework is that
COURT OF APPEALS
OF
NEVADA
(0) 1947B
5
the new rule at issue must be a constitutional rule. 2 See Teague, 489 U.S.
at 306.
In both Welch and Montgomery, the Court applied the existing
Teague retroactivity framework to decide the issue before it. See Welch, 578
U.S. at , 136 S. Ct. at 1264-68; Montgomery, 577 U.S. at , 136 S. Ct.
at 728-36. Nothing in either case alters Teague's threshold requirement
that the new rule at issue must be a constitutional rule. See Welch, 578
U.S. at , 136 S. Ct. at 1264 (reiterating that the Teague retroactivity
framework applies to new constitutional rules); Montgomery, 577 U.S. at
, 136 S. Ct. at 728 (same). Because the decisions in Welch and
Montgomery do not alter this threshold requirement, we hold those
decisions do not constitute good cause for raising a procedurally barred
claim arguing a nonconstitutional rule should be applied retroactively.
Here, Branham claimed the decisions in Welch and Montgomery
provided good cause to raise his Byford claim. However, the decision in
Byford "was a matter of interpreting a state statute, not a matter of
constitutional law," and "[n]othing in the language of Byford suggests that
decision was grounded in constitutional concerns." Nika, 124 Nev. at 1288,
198 P.3d at 850. Because the decision in Byford did not establish a new
constitutional rule, the decisions in Welch and Montgomery do not
2Nevada has adopted• a more liberal version of the federal
retroactivity framework, but still recognizes this threshold requirement.
See Nika v. State, 124 Nev. 1272, 1288,
198 P.3d 839, 850 (2008) ("[I]f a rule
is new but not a constitutional rule, it has no retroactive application to
convictions that are final at the time of the change in the law."); Colwell v.
State, 118 Nev. 807, 816-17,
59 P.3d 463, 469-70 (2002).
COURT OF APPEALS
OF
NEVADA
01) 19478 e 6
constitute good cause for Branham to raise his procedurally barred claim
that Byford must be applied retroactively. 3
Branham did not demonstrate a fundamental miscarriage of justice
Branham also claims he demonstrated a fundamental
miscarriage ofjustice to overcome the procedural bars. A district court may
reach the merits of any claims of constitutional error where a petitioner can
demonstrate a fundamental miscarriage of justice has resulted in the
conviction of one who is actually innocent. Pellegrini, 117 Nev. at 887,
34
P.3d at 537. Branham's argument fails for two reasons.
First, a successful claim of a fundamental miscarriage of justice
only allows for consideration on the merits of claims of constitutional error.
But because the Byford decision was not grounded in constitutional
concerns, Branham's underlying Byford claim was not a claim of
constitutional error. Accordingly, Branham would not have been entitled
to have his underlying Byford claim decided on the merits. Second,
Branham could not demonstrate he was actually innocent. See Mitchell v.
State, 122 Nev. 1269, 1273-74,
149 P.3d 33, 36 (2006) ("[A]ctual innocence'
means factual innocence, not mere legal insufficiency." (alteration in
original) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998))). He
3 We note that even if the holding in Byfordcould be construed to fall
within the Teague substantive rule exception, the portions of Welch and
Montgomery on which Branham relies are based on federal law that has
long been available for Branham to raise in postconviction proceedings.
Further, because Nevada adopted the federal retroactivity framework in
2002, Branham could have raised his retroactivity argument long before the
decision in Montgomery was issued. Therefore, Welch and Montgomery still
would not provide good cause to excuse the procedural bars. See Hathaway,
119 Nev. at 252-53,
71 P.3d at 506 (holding a good cause claim cannot itself
be procedurally barred).
COURT OF APPEALS
OF
NEVADA
(0) 194 M e 7
thus failed to demonstrate dismissal of his claim would result in a
fundamental miscarriage of justice.
CONCLUSION
We hold that the United States Supreme Court decisions in
Welch and Montgomery do not constitute good cause to raise a procedurally
barred claim arguing that a nonconstitutional rule should be applied
retroactively. Because the decision in Byford did not establish a new
constitutional rule, we conclude the district court did not err by finding the
decisions in Welch and Montgomery did not constitute good cause for
Branham to raise his procedurally barred claim that Byford must be applied
retroactively. 4 Branham also failed to demonstrate that dismissal of his
claim would result in a fundamental miscarriage of justice. Accordingly, we
affirm the district court's order dismissing Branham's postconviction
petition for a writ of habeas corpus as procedurally barred.
C.J.
Silver
Tao
1.---
Atre52° J.
J.
Gibbons
4We note the district court erred by finding that Welch and
Montgomery did not provide good cause to overcome the procedural bars on
the ground that Byford did not announce a new substantive rule.
Nevertheless, for the reasons stated, we conclude the district court reached
the correct result, albeit for the wrong reason. See Wyatt v. State, 86 Nev.
294, 298,
468 P.2d 338, 341 (1970) (holding a correct result will not be
COURT OF APPEALS
reversed simply because it is based on the wrong reason).
OF
NEVADA
(0) 194711 09
8
