DVONTAE DSHAWN RICHARD v. THE STATE OF NEVADA AND STEVEN WOLFSON (2026)

AMENDED ORDER OF AFFIRMANCE 1

Dvontae Dshawn Richard appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on September 3, 2019, and a supplemental petition filed on February 12, 2024. Eighth Judicial District Court, Clark County; Ronald J. Israel, Judge.

Richard argues the district court erred by denying his petition as procedurally barred. Richard was convicted, pursuant to a jury verdict, of two counts of conspiracy to commit robbery and one count each of burglary while in possession of a firearm, grand larceny of a firearm, grand larceny, robbery with use of a deadly weapon, attempted robbery, and battery with intent to commit a crime. Richard appealed from the judgment of conviction and the Nevada Supreme Court affirmed the judgment of conviction. Richard v. State, 134 Nev. 518, 424 P.3d 626 (2018).

Richard filed a pro se postconviction petition for a writ of habeas corpus on June 27, 2019. This petition was assigned district court case no. A-19-797693-W. While Richard's June 27 petition was pending before the district court, Richard, through his counsel for his trial and direct appeal, filed a second petition on September 3, 2019, which was assigned district court case no. A-19-801271-W. Of note, the September 3 petition did not refer to Richard's prior petition or otherwise indicate it was intended to supplement the prior petition. Richard did not move to consolidate the proceedings, and the district court orally denied the June 27 petition at a hearing held on October 2, 2019. On November 5, 2019, the district court entered a written order denying the June 27 petition and this court affirmed the district court's decision on appeal. See Richard v. State, No. 80235-COA, 2020 WL 6741327 (Nev. Ct. App. Nov. 13, 2020) (Order of Affirmance).  ²

During the proceedings concerning Richard's September 3 petition, the district court appointed postconviction counsel to represent Richard. Postconviction counsel filed a supplement on February 12, 2024. The district court later denied Richard's September 3 petition as procedurally barred.

On appeal, Richard argues that the district court erred by denying his petition as procedurally barred. “Application of the statutory procedural default rules to post-conviction habeas petitions is mandatory.” State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005). Richard's September 3 petition was his second postconviction petition, and it constituted an abuse of the writ as it raised claims new and different from those raised in Richard's first petition. See NRS 34.810(1)(b)(2); NRS 34.810(3). Thus, the September 3 petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.810(1)(b); NRS 34.810(4).

First, Richard claimed his September 3 petition was not procedurally barred. Richard argued the district court should not have permitted his June 27 petition to proceed once counsel filed the September 3 petition. Richard contended that the district court should have treated the September 3 petition as a supplement to the first petition or consolidated the cases. He further argued that the later appointment of postconviction counsel to represent Richard during the proceedings concerning his second petition demonstrated the district court thought Richard's claims warranted counsel.

A postconviction petition for a writ of habeas corpus is a collateral proceeding to the underlying criminal case and a petitioner is not prevented by NRS Chapter 34 from pursuing separate petitions contemporaneously. See NRS 34.724 (providing who may file a postconviction petition for a writ of habeas corpus and that such a petition “[i]s not a substitute for and does not affect any remedies which are incident to the proceedings in the trial court or the remedy of direct review of the sentence or conviction”); NRS 34.730(4) (stating “the clerk of the district court shall file a petition as a new action separate and distinct from any original proceeding in which a conviction has been had ”); NRS 34.750 (providing for the appointment of counsel for petitioners under certain circumstances); Groesbeck v. Warden, 100 Nev. 259, 260, 679 P.2d 1268, 1268-69 (1984) (recognizing that a postconviction petition for a writ of habeas corpus is a petition seeking collateral review).

Further, counsel may file and serve supplemental pleadings when appointed by the district court to represent an indigent petitioner in postconviction proceedings. See NRS 34.750(3). Here the attorney who filed the September 3 petition was not appointed by the district court to represent Richard in his postconviction proceedings and nothing in the September 3 petition indicated that it was related to or supplemented the June 27 petition. Finally, Richard fails to provide authority that the district court erred by failing to treat the September 3 petition as a supplement to the June 27 petition or by failing to sua sponte consolidate the separate proceedings. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (“It is appellant's responsibility to present relevant authority and cogent argument; issues not so presented need not be addressed by this court.”) . Therefore, we conclude Richard is not entitled to relief based on this claim.

Second, Richard claimed that even if his petition was procedurally barred, he had good cause. “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).

Richard first alleged that the district court's decision to allow him to proceed pro se during the proceedings involving the June 27 petition after counsel filed the September 3 petition “was out of Richard's control” and thus constituted an impediment external to the defense. However, as explained previously, NRS Chapter 34 did not prevent Richard from pursuing separate postconviction petitions and c ounsel's decision to file a second petition on Richard's behalf did not constitute an impediment external to the defense, as Richard does not demonstrate that any issue raised in his September 3 petition was not reasonably available to have been raised in his June 27 petition. For these reasons, we conclude Richard is not entitled to relief based on this good cause claim.

Richard also alleged the legal basis for his claims was not reasonably available to him at the time he filed his pro se petition because his direct appeal had not been decided yet and the Nevada Supreme Court's decision on direct appeal is relevant to his underlying substantive claim . This good cause claim is belied by the record. Remittitur from Richard's direct appeal issued on September 17, 2018. See Richard, 134 Nev. 518, 424 P.3d 626. Thus, potential issues concerning the appellate proceedings were reasonably available to have been raised in Richard ’s June 27 petition. Richard does not argue that something prohibited him from raising issues stemming from the supreme court's direct appeal decision in the June 27 petition and he accordingly does not demonstrate good cause. Therefore, we conclude Richard is not entitled to relief based on this good cause claim.

Even had Richard demonstrated good cause for the delay, we nevertheless affirm the district court ’s denial of Richard's petition because, as outlined below, he failed to demonstrate actual prejudice to overcome the procedural bars. See NRS 34.810(1)(b); NRS 34.810(4). A petitioner bears the burden of demonstrating actual prejudice, which can be shown by demonstrating that the alleged errors worked to the petitioner's “actual and substantial disadvantage.” Hogan v. Warden, 109 Nev. 952, 959-60, 860 P.2d 710, 716 (1993) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). “If a petitioner who seeks to excuse a procedural default based on ineffective assistance of counsel makes the showing of prejudice required by Strickland, he also has met the actual prejudice showing required to excuse the procedural default.” Rippo v. State, 134 Nev. 411, 425, 423 P.3d 1084, 1099 (2018), amended on denial of rehearing by Rippo v. State, 134 Nev. 411, 432 P.3d 167 (2018). Thus, to determine whether Richard established actual prejudice sufficient to overcome the aforementioned procedural bars, we must consider his underlying claims of ineffective assistance of counsel.

First, Richard raised arguments alleging that trial counsel was ineffective and sought an evidentiary hearing. To demonstrate ineffective assistance of trial counsel, a petitioner must show counsel's performance was deficient in that it fell below an objective standard of reasonableness and prejudice resulted in that there was a reasonable probability of a different outcome absent counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland). Both components of the inquiry must be shown. Strickland, 466 U.S. at 687. We give deference to the district court's factual findings if supported by substantial evidence and not clearly erroneous but review the court's application of the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). To warrant an evidentiary hearing, a petitioner must raise claims supported by specific factual allegations that are not belied by the record and, if true, would entitle the petitioner to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).

Richard claimed that trial counsel was ineffective for failing to present the following evidence in support of Richard's motion to suppress his statements to police detectives. Richard argued that counsel should have presented “medical records and testimony from treating physicians” to demonstrate that Richard was “heavily under the influence of mind altering substances,” in particular, “opiates” and “anesthesia” at the time he spoke with detectives. Richard further alleged that counsel should have presented the testimony of an expert “who would opine that such substances are mind altering and can affect decision making.”³ Richard averred that “[s]ince counsel did not present the specific medications and dosages Richard was on and/or testimony from an expert opining that the severe effects of these medication [sic] would have rendered Richard's state of mind such that he would not have been able to make decisions, the [trial court] was unable to fully take into consideration his intoxication level .”

Prior to trial, counsel moved to suppress Richard's statements to detectives on the grounds that they were involuntary “due to his medical intoxication.” Counsel argued that Richard was “under the influence of highly potent narcotic medications” such that “any statements given under those circumstances [were] involuntary, and inadmissible at trial.” The district court conducted a Jackson v. Denno ⁴ hearing during which the two detectives and Richard testified. Following the hearing, the trial court denied the motion. Richard challenged the trial court's denial on direct appeal. In a published opinion, the Nevada Supreme Court concluded that the district court did not err by denying Richard's motion to suppress his statements to detectives. Richard, 134 Nev. at 526-28, 424 P.3d at 632-34.

As to the detective Richard spoke to most recently after having been shot, the supreme court cited prior supreme court authorities addressing the voluntariness of police statements in light of a defendant's alleged intoxication and concluded that “[a]lthough Richard's answers were not directly responsive to the detective ’s questions, they d[id] not necessarily indicate that Richard was confused or in an altered state of consciousness.” Id. at 528, 424 P.3d at 633. As to the second detective, who Richard spoke to the night after he was shot, the supreme court stated, “[c]onsidering the circumstances surrounding Richard ’s second custodial statement, there is nothing in the record that would undermine the district court's determination that Richard ’s statement to [the second detective] was voluntary.” Id. at 528, 424 P.3d at 634.

In his supplemental petition, Richard acknowledged the direct appeal decision but contended trial counsel could have presented additional information in support of his challenge to the voluntariness of his statements to the police. Richard asserted that had counsel presented additional information, there was a reasonable probability of a different outcome of the trial court proceedings.

However, in his petition and supplemental petition Richard did not specifically identify the medications or doses he was on at the time he spoke with detectives. Further, Richard did not offer the names of any of the medical personnel or specify what their testimony would be. Finally, Richard did not specify what an expert would testify to regarding the specific substances he was on or how those substances affected his decision making at the time he spoke with detectives. Accordingly, Richard failed to support this claim with specific facts not belied by the record that, if true, would entitle him to relief, and his claim did not demonstrate a reasonable probability of a different outcome at trial but for this alleged error. See Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004) (stating a petitioner claiming counsel did not conduct an adequate investigation must specify what a more thorough investigation would have uncovered). Therefore, we conclude Richard failed to demonstrate actual prejudice to overcome the procedural bars with respect to this claim.

Richard also claimed that appellate counsel was ineffective for failing to adequately address on direct appeal that Richard's intoxication rendered his statements to detectives involuntary. An appellant alleging the district court erred by denying their claims of ineffective assistance of counsel must specifically articulate counsel ’s alleged deficiency and prejudice for each claim in their appellate briefing. See Chappell v. State, 137 Nev. 780, 787-88, 501 P.3d 935, 949-50 (2021) (noting “a petitioner's appellate briefs must address ineffective-assistance claims with specificity, not just in a pro forma, perfunctory way or with a conclusory catchall statement that counsel provided ineffective assistance” (internal quotation marks and punctuation omitted)). Because Richard fails to specifically articulate appellate counsel's alleged deficiency or the resulting prejudice for this claim, we conclude he failed to demonstrate actual prejudice to overcome the procedural bar with respect to this claim. See Maresca, 103 Nev. at 673, 748 P.2d at 6.

Finally, Richard claimed that the cumulative errors of trial and appellate counsel entitled him to relief. Even if multiple instances of deficient performance could be cumulated for purposes of demonstrating prejudice, see McConnell v. State, 125 Nev. 243, 259 & n.17, 212 P.3d 307, 318 & n.17 (2009), Richard did not demonstrate multiple errors to cumulate. Therefore, we conclude Richard is not entitled to relief based on this claim.

Because Richard's claims of ineffective assistance of counsel would not have entitled him to relief, he failed to meet his burden to demonstrate actual prejudice sufficient to overcome the procedural bars. See Rippo, 134 Nev. at 425, 423 P.3d at 1099. For the foregoing reasons, 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

2.   We note that on appeal from the denial of Richard's June 27 petition, he argued the district court erred by treating it “as a pro se document because he was actually represented by postconviction counsel. ” Richard, No. 80235-COA, 2020 WL 6741327, at *1. We concluded that the record demonstrated Richard was not represented by postconviction counsel during the district court proceedings concerning his June 27 petition and thus he failed to demonstrate he was entitled to relief. Id.

3.   In his opening brief on appeal, Richard proffers additional expert testimony in support of this claim. In the district court proceedings, Richard did not include this proffered expert testimony in his petition or supplemental petition and presented it for the first time in his reply to the State's response to his supplemental petition. The proffered testimony was addressed at a hearing held on Richard's petition. During the hearing, Richard specifically cited to his reply and stated that the proffered expert testimony was offered in response to the State's argument that he “didn't provide enough.”Although the additional expert testimony was apparently discussed at the hearing, the district court denied Richard's petition and supplemental petition without explicitly addressing the proffered expert testimony in its order. Therefore, we conclude that the district court implicitly rejected the proffered expert testimony in denying the petitions. See Bd. of Gallery of Hist., Inc. v. Datecs Corp., 116 Nev. 286, 289, 994 P.2d 1149, 1150 (2000) (concluding that a district court ’s failure to rule on a request constituted denial of that request). Further, Richard does not demonstrate the district court abused its discretion by failing to specifically address in its order the allegations raised for the first time in his reply. Cf. Barnhart v. State, 122 Nev. 301, 303, 130 P.3d 650, 651-52 (2006) ( providing that district courts should generally only consider issues “which have been pleaded in the petition or a supplemental petition and those to which the State has had an opportunity to respond” but stating a “district court may exercise its discretion under certain circumstances to permit a petitioner to assert claims not previously pleaded ”). In light of these circumstances, we conclude Richard is not entitled to relief.

4.   378 U.S. 368 (1964).