488 P3D 579 - Jaramillo (Jonathan) Vs. State

IN THE SUPREME COURT OF THE STATE OF NEVADA

JONATHAN ZURISDAY JARAMILLO, No. 81088
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
JU N 1 2021
ELIZABE
CLE -40
BY
DEPUTY CLERK

ORDER OF REVERSAL AND REMAND
This is an 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.
Appellant Jonathan Zurisday Jaramillo argues that the district
court erred in denying his petition as •procedurally barred and in refusing
to appoint counsel. The district court denied some of Jaramillo's claims on
the ground that variations of the claims were raised and rejected on direct
appeal and the remainder because he could have raised them at trial or on
direct appeal.
Jaramillo raised claims of ineffective assistance in his habeas
petition, which he timely filed less than one year after remittitur issued on
his direct appeal. See NRS 34.7260); Jaramillo v. State, Docket No. 73720
(Order of Affirmance, March 29, 2019). Jaramillo did not raise these claims
on direct appeal, and this petition is the proper mechanism for him to raise
these claims. See Pellegrini v. State,

117 Nev. 860, 883

34 P.3d 519, 535

                      (2001) (holding "that claims of ineffective assistance of counsel brought in a
                      timely first postconviction petition for a writ of habeas corpus are not
                      subject to dismissal on grounds of waiver, regardless of whether the claims
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could have been appropriately raised on direct appear), abrogated on. other
grounds by Rippo v. State,

134 Nev. 411

, 423 n.12,

423 P.3d 1084

, 1097 n.12
(2018). The district court accordingly erred in concluding to the contrary.
We reverse and direct the district court to consider Jaramillo's claims on
the merits and to hold an evidentiary hearing if the district court
determines that one is warranted. Cf. Hargrove v. State,

100 Nev. 498, 503

686 P.2d 222, 225

 (1984) (requiring an evidentiary hearing where the
petitioner has alleged specific facts that, if true, would support the right to
relief).
            Jaramillo also argues that the district court erred in denying
his petition without appointing counsel. We agree. See NRS 34.750(1).
Jaramillo's petition indicated that he did not understand the issues posed
by this proceeding, he raised claims that arguably require the assistance of
counsel to seek discovery, and the petition was timely filed only because
Jaramillo had the assistance of pro bono counsel. Further, Jaramillo
received a significant sentence, this was his first petition challenging his
judgment of conviction, and he asserted indigency. Accordingly, we
conclude that the district court abused its discretion when it denied
Jaramilles request for counsel. See id.; Renteria-Novoa v. State,

133 Nev. 75

, 76,

391 P.3d 760

, 760-61 (2017). We direct the district court to appoint
postconviction counsel and to consider any request for investigator funding
or other discovery as may be appropriate. Accordingly, we

2
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.'

J.
Cadish

Pideu , J.
Pickering

\Raab

, J.
Herndon

cc: Hon. Egan K. Walker, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk

We decline Jaramillo's request to direct the district court to assign
the case to a different judge on remand. That a judge has ruled against a
party generally does not show that the judge is biased to warrant
reassignment. See Rivero v. Rivero,

125 Nev. 410, 439

216 P.3d 213, 233

                   (2009) (providing that judges are presumed to be unbiased and that the
                   party alleging bias must assert bias stemming from an extrajudicial source);
                   Whitehead v. Nev. Cornm'n on Judicial Discipline, 110 Nev, 380, 427,

873 P.2d 946, 975

 (1994) C[J]udicial rulings alone almost never constitute a
                   valid basis for a bias or partiality motion." (quoting Liteky v. United States,

510 U.S. 540, 555

 (1994))).
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