Opinion
No. 79365
07-20-2020
NICHOLAS B. HOWARD, A/K/A NICHOLAS BARKSDALE HOWARD, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying appellant's postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; William D. Kephart, Judge.
Appellant Nicholas Howard filed his petition more than five years after issuance of the remittitur on direct appeal. See Howard v. State, Docket No. 61115 (Order of Affirmance, June 13, 2013). Accordingly, Howard's petition was untimely. See NRS 34.726(1). And because he had previously litigated a postconviction habeas petition on the merits, his petition was also successive. See NRS 34.810(2); Howard v. State, Docket No. 67169 (Order of Affirmance, Nov. 13, 2015). Howard's petition was therefore procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3). Further, because the State specifically pleaded laches, Howard was required to overcome the presumption of prejudice to the State. See NRS 34.800(2).
Howard argues that the decision in McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018), provides good cause to overcome the procedural bars to his current petition, which alleges that his Sixth Amendment-secured autonomy right was violated when counsel conceded that Howard was a pimp and entered the hotel room to take a laptop as payment for an unpaid debt. In McCoy, the United States Supreme Court recognized a defendant's right to choose the objective of his defense. Id. at ___, 138 S. Ct. at 1508. Thus, "[w]hen a client expressly asserts that the objective of his defence [sic] is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt." Id. at ___, 138 S. Ct. at 1509 (internal quotation marks omitted).
Even assuming, without deciding, that McCoy's holding is new constitutional law that applies retroactively and supports a claim that was not reasonably available to be raised in a timely petition thus providing good cause, see Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003), Howard does not demonstrate actual prejudice. Unlike the appellant in McCoy, Howard did not object to counsel's defense strategy. See McCoy, 584 U.S. at ___, 138 S. Ct. at 1510 (concluding "that counsel may not admit her client's guilt of a charged crime over the client's intransigent objection to that admission" (emphasis added)). The record instead demonstrates that Howard expressly consented to such defense strategy. See Howard, Docket No. 67169, at *1-2 (observing that counsel explained that Howard consented to a defense strategy that involved conceding these facts). Howard's reliance on McCoy is therefore misplaced and does not show actual prejudice to overcome the procedural bars to his petition.
We reject Howard's argument that the district court should have held an evidentiary hearing to determine whether Howard gave informed consent as repelled by the record. See Hargrove v. State, 100 Nev. 498, 503, 686 P.2d 222, 225 (1984).
We reject Howard's argument that a McCoy claim is based on informed consent rather than an unambiguous objection. The Court in McCoy explicitly stated that Florida v. Nixon, 543 U.S. 175 (2004), "is not to the contrary." McCoy, 584 U.S. at ___, 138 S. Ct. at 1509. In Nixon, the Court determined that where counsel informed the defendant of the concession strategy and the defendant neither consented nor objected, counsel was "not additionally required to gain express consent before conceding Nixon's guilt." 543 U.S. at 189; see Armenta-Carpio v. State, 129 Nev. 531, 535, 306 P.3d 395, 398 (2013) ("[A] concession strategy does not involve the waiver of a constitutional right that must be knowing and voluntary.").
Further, Howard failed to overcome the presumption of prejudice to the State pursuant to NRS 34.800(2). See Little v. Warden, 117 Nev. 845, 853, 34 P.3d 540, 545 (2001). We therefore conclude that the district court did not err by denying Howard's petition as procedurally barred.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
The Honorable Abbi Silver, Justice, voluntarily recused herself from participation in the decision of this matter.
/s/_________, C.J.
Pickering
/s/_________, J.
Gibbons
/s/_________, J.
Stiglich cc: Hon. William D. Kephart, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk