ROBERT CRUISE v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Robert Cruise appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on November 26, 2024.¹ Eighth Judicial District Court, Clark County; Tara D. Clark Newberry, Judge.

Cruise filed his petition more than three years after entry of his judgment of conviction on January 19, 2021.² Thus, Cruise's petition was untimely filed. See NRS 34.726(1). Moreover, Cruise's petition was successive because he had previously filed a postconviction petition for a writ of habeas corpus that was decided on the merits, and it constituted an abuse of the writ as he raised claims new and different from those raised in his previous petition.³ See NRS 34.810(3). Cruise's petition was procedurally barred absent a demonstration of good cause and actual prejudice, see NRS 34.726(1); NRS 34.810(4), or a showing that he is actually innocent such that “the failure to consider the petition on its merits would amount to a fundamental miscarriage of justice,” see Berry v. State, 131 Nev. 957, 966, 363 P.3d 1148, 1154 (2015). To warrant an evidentiary hearing, a petitioner's good-cause claims must be supported by specific factual allegations that are not belied by the record and, if true, would entitle the petitioner to relief. Id. at 967, 363 P.3d at 1154-55.

Cruise contends the district court erred in denying his petition as procedurally barred. He asserts that his petition was based on facts that he recently became aware of regarding appointed counsel's statement to the trial-level court about how often counsel visited Cruise before informing the court that Cruise could not assert an arguable basis upon which to file a presentence motion to withdraw his guilty plea. Cruise insists that, had counsel actually interviewed him, counsel would have seen that there was fair and just reason to withdraw his guilty plea.

Cruise did not allege sufficient facts to demonstrate good cause to excuse the procedural bars. Cruise asserts that he could not pursue this claim until he obtained documentation from the detention center indicating that counsel may not have visited him as often as counsel represented to the trial-level court. However, Cruise's petition acknowledges that he was present at the hearing during which counsel represented how often he visited with Cruise before counsel came to the conclusion that Cruise did not have a legal basis to withdraw his guilty plea. Because Cruise was present at that hearing and heard counsel's representation to the trial-level court concerning their visits, claims stemming from counsel's statements were reasonably available to have been raised at an earlier time. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003) (“[I]n order to constitute adequate cause, the ineffective assistance of counsel claim itself must not be procedurally defaulted.”). And Cruise accordingly did not allege sufficient facts to demonstrate an impediment external to the defense prevented him from raising this claim in his previous petition. See id. at 252-53, 71 P.3d at 506. Therefore, the district court did not err in concluding that Cruise failed to allege sufficient facts to demonstrate good cause.

Cruise further failed to allege sufficient facts to demonstrate prejudice. A petitioner must make “specific factual allegations that if true would entitle him to relief” in order to establish the actual prejudice necessary to overcome the procedural bar. Chappell v. State, 137 Nev. 780, 787, 501 P.3d 935, 949 (2021). “[A] district court may grant a defendant's motion to withdraw his guilty plea before sentencing for any reason where permitting withdrawal would be fair and just.” Stevenson v. State, 131 Nev. 598, 604, 354 P.3d 1277, 1281 (2015). Cruise did not allege, either in the district court or in his brief on appeal, what counsel should have asserted in his presentence motion to withdraw. Nor does he describe what information Cruise would have relayed to counsel that would have supported a successful motion to withdraw had counsel visited him more often during his pretrial detention.⁴ As Cruise failed to allege there were fair and just reasons for withdrawing his guilty plea, see id., we therefore determine that the district court did not err in concluding that Cruise failed to allege sufficient facts to demonstrate prejudice, see Chappell, 137 Nev. at 787, 501 P.3d at 949. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   Cruise titled his pleading as a “motion to reconsider request to withdraw guilty plea agreement.” The district court properly construed the motion as a postconviction petition for a writ of habeas corpus. See Harris v. State, 130 Nev. 435, 448-49, 329 P.3d 619, 628 (2014).

2.   Cruise did not pursue a direct appeal.

3.   See Cruise v. State, No. 84750-COA, 2023 WL 1433519 (Nev. Ct. App. Jan. 13, 2023) (Order of Affirmance).

4.   To the extent Cruise raises claims on appeal that were not raised in his petition below, we decline to consider any such claims in the first instance. See State v. Wade, 105 Nev. 206, 209 n.3, 772 P.2d 1291, 1293 n.3 (1989).