ROBERT WHITE v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Robert White appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on June 11, 2024. Second Judicial District Court, Washoe County; Scott N. Freeman, Judge.

White filed his petition more than 24 years after entry of the judgment of conviction on October 1, 1999.¹ Thus, White's petition was untimely filed. See NRS 34.726(1). White's petition was procedurally barred absent a demonstration of good cause—cause for the delay and undue prejudice. See id. “In order to demonstrate good cause, a petitioner must show that an impediment external to the defense prevented him or her from complying with the state procedural default rules.” Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). “An impediment external to the defense may be demonstrated by a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials, made compliance impracticable.” Id. (internal quotation marks omitted).

As cause for the delay, White cited his recent discovery of the concurrence in Vasquez v. State, No. 79409-COA, 2020 WL 4696206 (Nev. Ct. App., Aug. 12, 2020) (Order Vacating Judgment and Remanding) (Tao, J., concurring), questioning the validity of the Division of Parole and Probation's sentencing recommendation process. Vasquez is an unpublished disposition; it does not establish mandatory precedent. See NRAP 36(c)(2). Therefore, White failed to demonstrate that the legal basis for his claims was not reasonably available until this court's decision in Vasquez.

Furthermore, White did not file the instant petition until nearly four years after Vasquez was decided and, thus, failed to demonstrate good cause for the entire length of the delay. See Hathaway, 119 Nev. at 252, 71 P.3d at 506. White insisted that he had not learned of the decision until recently, but his ignorance of Vasquez did not constitute an impediment external to the defense so as to overcome the procedural bar. See Phelps v. Dir., Nev. Dep't. of Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988) (holding a petitioner's claim of organic brain damage, borderline mental disability, and reliance on the assistance of an inmate law clerk unschooled in the law did not constitute good cause for the filing of a procedurally barred postconviction habeas petition), superseded by statute on other grounds as stated in State v. Haberstroh, 119 Nev. 173, 180-81, 69 P.3d 676, 681 (2003). Because the district court did not err in denying the petition as procedurally barred, we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

cc: Hon. Scott N. Freeman, District Judge

Robert Lewis White

Attorney General/Carson City

Washoe County District Attorney

Washoe District Court Clerk

FOOTNOTES

1.   White did not appeal his judgment of conviction.