Opinion
No. 79711
12-16-2020
RONALD WILLIAM RANGEL, Appellant, v. 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; Kathleen E. Delaney, Judge. Appellant Ronald William Rangel argues that the district court erred in denying his petition as procedurally barred. We affirm.
Rangel filed the petition nine years after the remittitur issued on his direct appeal. Rangel v. State, Docket No. 53377 (Order of Affirmance, August 10, 2009). Thus, his petition was untimely filed. See NRS 34.726(1). Moreover, his petition was successive because he had previously filed a postconviction petition for a writ of habeas corpus in which he asserted nearly identical grounds for relief. See NRS 34.810(2); Rangel v. State, Docket No. 59969 (Order of Affirmance, November 14, 2012). Rangel's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b)(2), (3). Good cause may be demonstrated 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).
Rangel argues that the Supreme Court's recent decision in McCoy v. Louisiana, 138 S. Ct. 1500 (2018), provides good cause. He is mistaken, as McCoy is distinguishable. McCoy holds that an attorney may not concede a defendant's guilt over an express objection. 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)). Here, trial counsel contended in opening statement and closing argument that the State overcharged the case in charging Rangel with burglary of an automobile, rather than a less severe offense such as malicious injury to a vehicle. Counsel thus arguably conceded that Rangel committed an uncharged lesser-related crime. During a mid-trial canvass, Rangel expressly consented to counsel's strategy. McCoy is distinguishable because Rangel never opposed the concession and expressly consented during the canvass. Moreover, Rangel has not shown that McCoy applies to a concession to an uncharged offense. See United States v. Rosemond, 958 F.3d 111, 123 (2d. Cir. 2020) (concluding that McCoy did not apply to counsel's concession of an uncharged crime where counsel argued vehemently that the defendant did not commit the crime charged). Because McCoy is distinguishable, we need not resolve Rangel's argument that McCoy applies retroactively. Accordingly, Rangel has not shown that McCoy provides good cause, and 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).
We reject Rangel's challenge to the district court's findings of fact and conclusions of law. Cf. King v. St. Clair, 134 Nev. 137, 142, 414 P.3d 314, 318 (2018) (noting that it is customary in Clark County for the prevailing party to draft the dispositive order).
Having considered Rangel's contentions and concluded that they do not warrant relief, we
ORDER the judgment of the district court AFFIRMED.
/s/_________, J.
Gibbons
/s/_________, J.
Stiglich
/s/_________, J.
Silver cc: Hon. Kathleen E. Delaney, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk