JAVAR KETCHUM v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Javar Ketchum appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on September 4, 2024. Eighth Judicial District Court, Clark County; Jacqueline M. Bluth, Judge.

Ketchum filed his petition nearly five years after issuance of the remittitur on direct appeal on October 8, 2019. See Ketchum v. State, No. 75097, 2019 WL 4392486 (Nev. Sept. 12, 2019) (Order of Affirmance). Thus, Ketchum's petition was untimely filed. See NRS 34.726(1). Moreover, Ketchum'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 petitions.¹ See NRS 34.810(1)(b)(2); NRS 34.810(3). Ketchum's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(4).

In his petition, Ketchum argued that the search of vehicles outside the store where the crime was committed should have been suppressed based on judicial, police, and prosecutorial misconduct. Ketchum argued he had good cause to overcome the procedural bars for his claims because he was incarcerated and did not learn about the facts supporting his claims until recently. He contended the facts he was relying on in the instant petition were provided to him from another inmate and otherwise could have been obtained only from the internet, to which he had no access.

To establish 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). “A qualifying impediment might be shown where the factual or legal basis for a claim was not reasonably available at the time of any default.” Rippo v. State, 134 Nev. 411, 419, 423 P.3d 1084, 1095 (2018) (quotation marks omitted).

Here, Ketchum filed two previous postconviction habeas petitions, and both were filed after the facts underpinning Ketchum's claims in his instant petition became available. Ketchum was also represented by counsel during both of his prior postconviction proceedings. Thus, even accepting that Ketchum did not have access to the facts underpinning his claims because of his incarceration, the claims were still reasonably available to be raised in his prior petitions, and he has not shown an impediment external to the defense excused his late, successive, and abusive petition. To the extent Ketchum argues that postconviction counsel was ineffective and that postconviction counsel's ineffectiveness should excuse the procedural bars, Ketchum fails to demonstrate good cause. The Nevada Supreme Court has held “[w]here there is no right to counsel there can be no deprivation of effective assistance of counsel.” Brown v. McDaniel 130 Nev. 565, 569, 331 P.3d 867, 870 (2014) (quoting McKague v. Warden, 112 Nev. 159, 164-65, 912 P.2d 255, 258 (1996)). The appointment of postconviction counsel was not mandated in this case; thus, Ketchum had no constitutional or statutory right to the effective assistance of that counsel. Id. Therefore, Ketchum failed to demonstrate good cause to overcome the procedural bars.

Further, we conclude Ketchum failed to demonstrate actual prejudice to overcome the procedural bars. Such a showing necessarily implicates the merits of the claims raised, see Rippo, 134 Nev. at 422, 423 P.3d at 1097, and Ketchum failed to demonstrate he had standing to challenge the search because he failed to show a possessory interest in the vehicles that were searched, see Scott v. State, 110 Nev. 622, 627-28, 877 P.2d 503, 507-08 (1994) (recognizing non-owners of a vehicle generally do not have standing to challenge the search of a vehicle unless the non-owner has some sort of possessory interest in that vehicle). Therefore, we conclude the district court did not err by denying the petition as procedurally barred, and we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   Ketchum v. State, No. 87012-COA, 2024 WL 3737965 (Nev. Ct. App. Aug. 8, 2024) (Order of Affirmance); Ketchum v. State, No. 82863-COA, 2022 WL 336288 (Nev. Ct. App. Feb. 3, 2022) (Order of Affirmance).