IN THE SUPREME COURT OF THE STATE OF NEVADA
MATTHEW F. ROWBOTTOM, No. 79480
Appellant,
vs.
THE STATE OF NEVADA, FILE
Respondent.
JUL 1 6 2020
ELIZABETH A. CROWN
CLERK - PREME COURT'
BY
. Y CLERK
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Second Judicial District
Court, Washoe County; Egan K. Walker, Judge. The district court denied
appellant Matthew Rowbottom's petition without holding an evidentiary
hearing. We affirm.1
Rowbottom was convicted, pursuant to a jury verdict, of first-degree murder with a deadly weapon and sentenced to death. This court
reversed his conviction and remanded for a new trial. Rowbottom v. State,
105 Nev. 472,
779 P.2d 934 (1989). During Rowbottom's second trial, he
accepted a plea offer and changed his plea to guilty of first-degree murder
with the use of a deadly weapon. In exchange, the State agreed not to seek
the death penalty. The district court sentenced Rowbottom to consecutive
'Having considered Rowbottom's pro se brief, we conclude that a
response is not necessary. NRAP 46A(c). This appeal therefore has been
submitted for decision based on the pro se brief and the record. See NRAP
34(f)(3).
SUPREME COURT
OF
NEVADA
(0) 1947A 40m •10-2/12111
sentences of life without the possibility of parole. The judgment of
conviction was filed on November 16, 1990. This court dismissed
Rowbottom's untimely direct appeal for lack of jurisdiction. Rowbottom v.
State, Docket No. 31984 (Order Dismissing Appeal, March 25, 1998).
Rowbottom's postconviction habeas petition was untimely
because it was filed 29 years after his judgment of conviction. See NRS
34.726(1); Dickerson v. State, 114 Nev. 1084, 1087,
967 P.2d 1132, 1133-34
(1998) (holding that the filing period for a postconviction habeas petition
begins to run from entry of the judgment of conviction absent a timely direct
appeal). Rowbottom's petition was also successive because he had
previously filed several postconviction habeas petitions and an abuse of the
writ because he asserted new claims that could have been raised in a prior
petition. See NRS 34.810(2); Rowbottom v. State, Docket No. 36542 (Order
of Affirmance, December 12, 2001); Rowbottom v. State, Docket No. 29876
(Order Dismissing Appeal, May 27, 1999); Rowbottom v. State, Docket No.
24785 (Order Dismissing Appeal, May 7, 1996). Thus, Rowbottom's petition
was procedurally barred absent a demonstration of good cause and actual
prejudice. See NRS 34.726(1); NRS 34.810(3). Good cause requires
Rowbottom to show that the basis for a claim was not reasonably available
when he filed his first, timely petition and that he filed the instant petition
within a reasonable time of discovering the factual or legal basis for the
claim. See Hathaway v. State,
119 Nev. 248, 252-53,
71 P.3d 503, 506
(2003).
Rowbottom argues that he has good cause on several grounds.
He first argues good cause based on being denied access to trial transcripts
2
and other case records that were only provided to him in 2018.2
Rowbottom's receipt of these records does not establish good cause for his
successive and untimely petition, as the failure to send these records to
Rowbottom did not prevent him from filing a timely first petition, in 1991.
See Hood v. State, 111 Nev. 335, 338,
890 P.2d 797, 798 (1995) (Counsel's
failure to send appellant his files did not prevent appellant from filing a
timely petition, and thus did not constitute good cause for appellant's
procedural default."). Rowbottom's argument that documents from Poza
Consulting Services and Southern Pacific Communications constituted
newly discovered evidence is without merit as the substance of this evidence
was addressed in the evidentiary hearing on the first timely petition.
Accordingly, neither supports a claim that was not reasonably available to
be raised in a timely petition.
Rowbottom's argument that ineffective assistance of
postconviction counsel provides good cause is also without merit, as he was
not entitled to the effective assistance of postconviction counsel after the
State agreed not to seek the death penalty in exchange for his guilty plea.
See Brown v. McDaniel, 130 Nev. 565, 569,
331 P.3d 867, 870 (2014)
(concluding that claims of ineffective assistance of postconviction counsel in
noncapital cases do not constitute good cause for a successive petition
2Rowbottom's contention that he was unable to pursue postconviction
relief without having a copy of the record to cite is incorrect as a matter of
law, see NRAP 28(0(3) (providing that pro se parties need not, but are
encouraged to, support assertions with citations to the record), and belied
by his previous pro se petitions. His related argument that he was deprived
of the ability to create an appendix is likewise misguided. See NRAP 30(i)
(providing that a pro se party generally may not file an appendix).
SUPREME COURT
OF
NEVADA
3
(0) 1947A .M0
because there is no entitlement to appointed counsel). Insofar as
Rowbottom's pleadings may be construed to argue that limited assistance
from prison law clerks and access to the prison law library provide good
cause, Rowbottom has not shown that either presented an impediment
external to the defense constituting good cause, particularly as he had
previously filed a timely pro se postconviction habeas petition. See Phelps
v. Dir., Nev. Dep't. of Prisons, 104 Nev. 656, 660,
764 P.2d 1303, 1306 (1988);
see also Lewis v. Casey, 518 U.S. 343, 355-56 (1996). As Rowbottom did not
show good cause, we conclude that the district court correctly applied the
mandatory procedural bars. See State v. Eighth Judicial Dist. Court
(Riker), 121 Nev. 225, 231,
112 P.3d 1070, 1074 (2005).
Rowbottom next argues that he is actually innocent or that
there was a fundamental miscarriage of justice. Rowbottom argues that the
interrogating officer's recounting of Rowbottom's confession was
"fabricated" and not credible. Rowbottom must show that "it is more likely
than not that no reasonable juror would have convicted him in the light
of . . . new evidence," Schlup v. Delo, 513 U.S. 298, 327 (1995); see also
Pellegrini v. State, 117 Nev. 860, 887,
34 P.3d 519, 537 (2001), and that he
is factually innocent, see Bousley v. United States, 523 U.S. 614, 624 (1998).
Rowbottom has not shown that no reasonable juror would have convicted
him in light of the extensive evidence of his guilt or that he was factually
innocent. See Rowbottom, 105 Nev. at 475-78,
779 P.2d at 936-37. The
district court therefore did not err in denying Rowbottom's actual innocence
claim.
Rowbottom lastly requests to withdraw his guilty plea. To
withdraw his guilty plea, Rowbottom must nevertheless make the showing
SUPREME COURT
OF
NEVADA
4
(0) 1947A
required to overcome the procedural bar, see Little v. Warden, 117 Nev. 845,
853,
34 P.3d 540, 545 (2001), which he has failed to do here.
Having considered Rowbottom's contentions and concluded that
relief is not warranted, we
ORDER the judgment of the district court AFFIRMED.
..44:4.5L-0 , J.
Stiglich
LIZ64,-,3 , J.
Silver
cc: Hon. Egan K. Walker, District Judge
Matthew F. Rowbottom
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
SUPREME COURT
OF
NEVADA
5
(0) 1447A argOc,
