MALONE v. WILLIAMS (2020)

ORDER OF AFFIRMANCE

Malone filed his petition on August 2, 2019, more than ten years after issuance of the remittitur on direct appeal on March 31, 2009. Malone v. State, Docket No. 51301 (Order of Affirmance, March 4, 2009). Thus, Malone's petition was untimely filed. See NRS 34.726(1). Moreover, Malone's petition was successive because he had previously filed two postconviction petitions for a writ of habeas corpus, one of which 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(2). Malone'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(3). Further, because the State specifically pleaded laches, Malone was required to overcome the rebuttable presumption of prejudice to the State. See NRS 34.800(2).

Malone argued that the decision in McCoy v. Louisiana, 584 U.S. ––––, 138 S. Ct. 1500 (2018), provided good cause to overcome the procedural bars to his current petition, in which he alleged that his counsel improperly conceded that Malone committed second-degree murder. In McCoy, the United States Supreme Court recognized a defendant's right to choose the objective of his defense. Id. at –––, 138 S. Ct. at 1508. Thus, “[w]hen a client expressly asserts that the objective of his defence [sic] is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.” Id. at –––, 138 S. Ct. at 1509 (internal quotation marks omitted).

Assuming, without deciding, that McCoy announced new constitutional law that applies retroactively, would support a claim that was not reasonably available to be raised in a timely petition, and thus provided good cause, see Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003), Malone did not demonstrate actual prejudice. Unlike the appellant in McCoy, Malone did not object to the concession strategy. See McCoy, 584 U.S. at ––––, 138 S. Ct. at 1510 ( “[C]ounsel may not admit her client's guilt of a charged crime over the client's intransigent objection to that admission.” (emphasis added)). The record instead demonstrated that Malone expressly consented to this defense strategy. Malone's reliance on McCoy was therefore misplaced.

Malone also appeared to claim that McCoy provided good cause to assert that he did not knowingly and voluntarily agree to a defense concession strategy. However, the McCoy court did not require that a defendant must knowingly and voluntarily agree to a concession strategy, but rather held that counsel may not pursue a concession strategy against a defendant's expressly stated wishes. See id. at –––, 138 S. Ct. at 1509-1510. “[A] concession strategy does not involve the waiver of a constitutional right that must be knowing and voluntary.” Armenta-Carpio v. State, 129 Nev. 531, 535, 306 P.3d 395, 398 (2013). Therefore, Malone did not demonstrate actual prejudice sufficient to overcome the procedural bars.

Finally, Malone did not overcome the rebuttable presumption of prejudice to the State. See NRS 34.800(2). Therefore, we conclude the district court did not err by denying the petition as procedurally barred. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

FOOTNOTES

1.   Malone filed a postconviction petition for a writ of habeas corpus in the district court on February 25, 2010, and the district court denied that petition. The Nevada Supreme Court dismissed Malone's appeal from the denial of that petition for lack of jurisdiction because Malone did not timely file the notice of appeal. Malone v. State, Docket No. 57222 (Order Dismissing Appeal, December 20, 2010). Malone filed a second postconviction petition for a writ of habeas corpus in the district court on August 8, 2014. The Nevada Supreme Court dismissed the appeal from the denial of that petition because Malone's challenge to his life-without-parole sentence became moot when the Legislature enacted A.B. 267 and made Malone eligible for parole after 20 years of incarceration. Malone v. State, Docket No. 66874 (Order Dismissing Appeal as Moot, December 20, 2015).