PEYTON HEMINGWAY v. JEREMY BEAN AS WARDEN OF HIGH DESERT STATE PRISON (2026)

ORDER OF AFFIRMANCE

This is an appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge. Appellant Peyton Hemingway argues that the district court erred by denying the petition as procedurally barred. We disagree and affirm.

Hemingway's postconviction habeas petition was untimely because it was filed more than four years after remittitur issued on direct appeal. See NRS 34.726(1); Hemingway v. State, No. 78605, 2020 WL 5634151 (Nev. Sept. 18, 2020) (Order of Affirmance). The petition was also successive because Hemingway previously filed a postconviction petition for a writ of habeas corpus, and it constituted an abuse of the writ as the petition raised claims new and different from those raised in the previous petition. See NRS 34.810(3); Hemingway v. State, No. 86259, 2023 WL 6780354 (Nev. Oct. 12, 2023) (Order of Affirmance). Thus, Hemingway's petition was procedurally barred absent a demonstration of good cause and prejudice. See NRS 34.726(1)(a)-(b); NRS 34.810(4).

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). Hemingway argues he has demonstrated good cause by showing that he is intellectually disabled and that first postconviction counsel was ineffective for failing to evaluate Hemingway's intellectual capacity. Neither intellectual disability nor ineffective assistance of postconviction counsel in a noncapital case independently provide good cause. See Phelps v. Dir., Neu. Dept of Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988) (holding that intellectual disability does not provide good cause), superseded by statute on other grounds as stated in State v. Haberstroh, 119 Nev. 173, 180-81, 69 P.3d 676, 681 (2003); Brown u. McDaniel, 130 Nev. 565, 571, 331 P.3d 867, 871-72 (2014) (holding that ineffective assistance of postconviction counsel does not provide good cause in noncapital cases because there is no statutory right to the assistance of postconviction counsel).

Hemingway contends that, because he is intellectually disabled, the appointment of postconviction counsel was a necessity, and thus postconviction counsel's ineffective assistance should constitute good cause. District courts may consider a petitioner's ability to comprehend the proceedings and navigate the issues in deciding whether to appoint counsel. NRS 34.750(1). But whether to appoint counsel is still discretionary, and we decline to depart from our holding in Brown that postconviction counsel's performance cannot constitute good cause to overcome procedural bars when there is no statutory right to postconviction counsel. 130 Nev. at 571, 331 P.3d at 871-72.

To the extent Hemingway argues that intellectual disability prevented him from complying with procedural rules, his intellectual disability was known to postconviction counsel, and Hemingway has not shown how his intellectual disability prevented him from raising other claims about trial and appellate counsel. See Pellegrini v. State, 117 Nev. 860, 888, 34 P.3d 519, 538 (2001), abrogated on other grounds by Rippo v. State, 134 Nev. 411, 423 n.12, 234 P.3d 1084, 1097 n.12 (2019). We also reject Hemingway's argument that due process guarantees effective postconviction counsel. See Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987) (holding that due process does not require the appointment of counsel in state postconviction proceedings).

Thus, we conclude the district court correctly applied the mandatory procedural bars and denied Hemingway's petition as procedurally barred. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Bell, J.

Stiglich, J.

Cadish, J.