HILL v. STATE (2021)

ORDER OF AFFIRMANCE

Hill filed his petition nearly eleven years after issuance of the remittitur on direct appeal on August 19, 2008. See Hill v. State, 124 Nev. 546, 188 P.3d 51 (2008). Thus, Hill's petition was untimely filed. See NRS 34.726(1). Moreover, Hill'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.¹ See NRS 34.810(1)(b)(2); NRS 34.810(2). Hill'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).

First, Hill argues he demonstrated good cause to overcome the procedural bars because he was unlearned in the law and did not understand the concept of “exhaustion” for federal habeas purposes. Hill's inability to understand federal exhaustion did not constitute an impediment external to the defense that prevented him from presenting his claims in properly filed petitions or on appeal from the denial of those petitions. See Phelps v. Dir., Nev. Dep't of Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988), superseded by statute on other grounds as stated in Stale v. Haberstroh, 119 Nev. 173, 180-81, 69 P.3d 676, 681 (2003). Thus, Hill failed to demonstrate this claim provided good cause. See Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003).

Second, Hill argues the district court erred by failing to find he had good cause due to ineffective assistance of postconviction counsel. Because Hill was not entitled to effective assistance of postconviction counsel, ineffective assistance of postconviction counsel does not provide good cause to overcome the procedural bars. See Brown v. McDaniel, 130 Nev. 565, 569, 331 P.3d 867, 870 (2014). Thus, Hill failed to demonstrate this claim provided good cause.

Third, Hill appears to argue his failure to exhaust his claims for federal purposes constitutes good cause. However, exhaustion of state remedies in order to seek federal review is insufficient to demonstrate good cause. See Colley v. State, 105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989), superseded by statute on other grounds as stated in State v. Huebler, 128 Nev. 192, 197 n.2, 275 P.3d 91, 95 n.2 (2012). Therefore, we conclude the district court did not err by dismissing the petition as procedurally barred, and we

ORDER the judgment of the district court AFFIRMED.

FOOTNOTES

1.   See Hill v. State, Docket No. 68348-COA (Order of Affirmance, June 22, 2016).