IN THE SUPREME COURT OF THE STATE OF NEVADA
MARKIECE PALMER, No. 79397
Appellant,
vs.
THE STATE OF NEVADA,
Respondent. FILED
FEB 1 6 2021
ELIZABETH A. BROWN
CLERK OF SUPREME COURT
DEPUTY CLERK
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; William D. Kephart, Judge.
Appellant filed his petition on May 10, 2019, more than one year
after this court issued its remittitur on direct appeal on February 20, 2018.
See Palmer v. State, Docket No. 67565 (Order of Affirmance, January 25,
2018). Thus, appellant's petition was untimely filed. See NRS 34.726(1).
Moreover, appellant's petition was successive because he had previously
litigated a postconviction petition for a writ of habeas corpus on the merits,
and it constituted an abuse of the writ to the extent that he raised claims
new and different from those raised in his previous petition. See NRS
34.810(1)(b)(2); NRS 34.810(2); see also Palmer v. State, Docket No. 70970
(Order of Affirmance, March 15, 2018). Appellant's petition was
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). Good
cause may be demonstrated by a showing that the factual or legal basis for
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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). Based upon
our review of the record on appeal, we conclude that the district court did
not err in denying the petition as procedurally barred for the reasons
discussed below.
Appellant argues that McCoy v. Louisiana, 138 S. Ct. 1500
(2018), provides good cause because his trial counsel conceded his guilt
without his informed consent. He is mistaken, as McCoy is distinguishable.
McCoy held that an attorney may not concede a defendanes guilt of a
charged crime over a defendant's express objection.
138 S. Ct. at 1509.
McCoy differentiated a defendant who opposed counsel's concession frorn a
defendant who "'was generally unresponsive during discussions of trial
strategy, and 'never verbally approved or protested"' the concession
strategy.
Id. (quoting Florida v. Nixon,
543 U.S. 175, 181 (2004)). McCoy
did not hold that a defendant must expressly consent to a concession or that
a canvass must precede a concession. See
id. Here, trial counsel conceded
appellant's guilt to two of the three charges (child abuse) during closing
arguments but disputed that appellant had committed first-degree murder
because the injury leading to the victim's death was allegedly accidental.
During an earlier discussion on the record and outside the jury's presence,
trial counsel indicated that the defense might make concessions as to the
child abuse charges depending upon how appellant's wife testified, that the
strategy had been discussed for over a year with appellant, but that there
would be no concession to the murder charge. The court then addressed
appellant, explaining the State's burden of proof, and asked appellant
whether he had discussed "decisions and strategiee with counsel.
2
ne:t.
Appellant affirmatively indicated that he had done so. He did not object to
the concession strategy. Because appellant never opposed the concession
strategy, McCoy is distinguishable and does not provide good cause. We
therefore need not decide whether McCoy applies retroactively.
To the extent that appellant argues that trial counsel did not
adequately advise him of the ramifications of the concession strategy,
McCoy likewise does not provide good cause. McCoy addressed "a client's
autonomy, not counsel's competence," 138 S. Ct. at 1510, and any claims
challenging trial counsel's advice could have been raised in appellant's first,
timely petition based on Nixon.'
Therefore, we conclude that the district court did not err in
determining that McCoy did not provide good cause in this case and that
the district court correctly applied the mandatory procedural bars.2 See
State v. Eighth judicial Dist. Court (Riker), 121 Nev. 225, 231, 233,
112
P.3d 1070, 1074, 1075 (2005). We further conclude that the district court
did not abuse its discretion in declining to conduct an evidentiary hearing.
See Hargrove v. State,
100 Nev. 498, 502-03,
686 P.2d 222, 225 (1984)
'Notably, McCoy did not alter the holding in Nixon. McCoy, 138 S.
Ct. at 1509.
2We reject the State's argument that a claim based on McCoy can only
be raised on direct appeal. A McCoy claim can be raised in a postconviction
habeas petition, albeit subject to the procedural bar in NRS 34.810(1)(b)
because it could have been raised on appeal. See NRS 34.724(1) ("Any
person convicted of a crime and under sentence of . . . imprisonment who
claims that the conviction was obtained . . . in violation of the Constitution
of the United States or the Constitution or laws of this State . . . may. . . file
a postconviction petition for a writ of habeas corpus to obtain relief from the
conviction . . .").
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.
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(providing that an evidentiary hearing is required when a claim is
supported by specific facts that, if true and not belied by the record, would
entitle the petitioner to relief). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
,J
Cadish
Pickering
Herndon
cc: Chief Judge, Eighth Judicial District Court
Department 19, Eighth Judicial District Court
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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