IN THE SUPREME COURT OF THE STATE OF NEVADA
OMAR J. AYALA, No. 79361
Appellant,
vs. FILE
THE STATE OF NEVADA,
Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; Joseph Hardy, Jr., Judge. Appellant Omar J. Ayala
argues that the district court erred in denying his petition as procedurally
barred. We affirm.
Ayala filed the petition six years after remittitur issued on his
direct appeal. Ayala v. State, Docket No. 55933 (Order of Affirmance, June
20, 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 in which he asserted a
similar claim for relief. See NRS 34.810(1)(b)(2); NRS 34.810(2); Ayala v.
State, Docket No. 69877 (Order of Affirmance, May 9, 2017). Ayala'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 may be
dernonstrated 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, Ayala was required to overcome the
presumption of prejudice to the State. See NRS 34.800(2).
Ayala argues that the Supreme Court's recent decision in
McCoy v. Louisiana, 138 S. Ct. 1500 (2018), provides good cause. He is
II t
mistaken, as McCoy is distinguishable. McCoy holds that an attorney may
not concede a defendant's guilt where the defendant expressly objects or
insists on maintaining his or her innocence. 138 S. Ct. at 1509. McCoy
differentiated a defendant who opposed counsel's concession from a
defendant who "'was generally unresponsive during discussions of trial
strategy, and 'never verbally approved or protested' the concession.
Id.
(quoting Florida v. Nixon,
543 U.S. 175, 181 (2004)). Although McCoy noted
that the decision to concede was similar in nature to other decisions
reserved to a defendant, like "whether to plead guilty, waive the right to a
jury trial, testify in one's own behalf, and forgo an appeal," id. at 1508,
McCoy does not require consent or a canvass. It only requires that counsel
not pursue a concession strategy over a defendant's objection. Id. at 1509-
10; see also Nixon,
543 U.S. at 186-92 (rejecting notion that concession
strategy requires express consent or that it is the functional equivalent of a
guilty plea).' Here, trial counsel admitted in opening statement and closing
argument that Ayala committed either voluntary manslaughter or seconddegree murder. Counsel, however, strenuously argued that Ayala lacked
the requisite intent for first-degree murder. During a canvass after closing
arguments, Ayala expressly consented to counsel's strategy. Ayala never
opposed the concession and expressly consented during the canvass.
Because McCoy is distinguishable, we need not resolve Ayala's argument
that McCoy applies retroactively. Accordingly, Ayala has not shown that
McCoy provides good cause.
Ayala has further not demonstrated the district court erred in
determining the petition was barred by laches. The State sufficiently
'Notably, McCoy did not alter the holding in Nixon. McCoy, 138 S.
Ct. at 1509.
2
pleaded laches, and prejudice was presumed based on the more-than-fiveyear period from the decision on direct appeal. NRS 34.800(2). Ayala has
not overcome the presumption of prejudice to the State. See NRS 34.800
(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 ofjustice
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. 2 See State v. Eighth Judicial Dist. Court (Riker), 121 Nev.
225, 231, 233,
112 P.3d 1070, 1074, 1075 (2005). Accordingly, we
Having considered Ayala's contentions and concluded that they
do not warrant relief, we
ORDER the judgment of the district court AFFIRMED.
pc, „
Parraguirre
, J.
Stiglich Silver
2 We reject the State's argument that Ayala may only argue
ineffectiveness of counsel in a postconviction habeas petition and thus may
not raise a McCoy claim in a postconviction habeas petition. The McCoy
claim was permissible, albeit subject to the procedural bars. See NRS
34.724; NRS 34.810(1)(b).
3
cc: Hon. Joseph Hardy, Jr., District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A .10.
