LOPEZ v. STATE (2018)

ORDER OF AFFIRMANCE

This is a pro se appeal from a district court order denying appellant Jerry Lopez's postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Jennifer P. Togliatti, Judge.¹ The district court denied Lopez's petition as procedurally barred. We agree and affirm.²

Lopez submitted his petition for filing on April 17, 2017, more than one year after remittitur issued from his direct: appeal. Lisle v. State, 113 Nev. 679, 941 P.2d 459 (1997). Thus, his petition was untimely filed. See NRS 34.726(1). Moreover, the petition was successive because Lopez had previously filed a postconviction petition.³ See NRS 34.810(l)(b); NRS 34.810(2). Accordingly, the petition was procedurally barred absent a demonstration of good cause and prejudice. See NRS. 34.726(1); NRS 34.810(l)(b), (2), (3). Further, because the State pleaded laches, Lopez was required to overcome the presumption of prejudice to the State. See NRS 34.800(2).

Lopez asserts that the district court erred by denying his petition because he demonstrated good cause and prejudice. He claims that, under Welch v. United States, 578 U.S. ––––, 136 S. Ct. 1257 (2016), this court must apply the holding in Byford v. State, 116 Nev. 215, 994 P. 2d 700 (2000) (holding that the instruction described in Kazalyn v. State, 108 Nev. 67, 75, 825 P.2d 578, 583 (1992), should not be given in future cases and the jury should be separately instructed on the definitions of willful, deliberate, and premeditated when a defendant is charged with first-degree murder), retroactively to him despite this court's holding in Nika v. State, 124 Nev. 1272, 198 P.3d 839 (2008), that Byford was not retroactive.⁴

We disagree with Lopez's reading of Welch. Welch held that a prior United States Supreme Court decision that a clause of a federal statute was void for vagueness applied retroactively because “even the use of impeccable factfinding procedures could not legitimate a sentence based on that clause.” Id. at ––––,136 S. Ct. at 1265. In contrast, Byford involves a Nevada court interpreting a Nevada statute in a manner that has no constitutional implications. Nika 124 Nev. at 1288, 198 P.3d at 850. Welch announced no new law relevant to Nevada, and nothing in Welch undermines this court's decision that Byford is not retroactive. Even if Byford was retroactive, no relief would be warranted because Lopez's codefendant clearly committed a willful, deliberate, and premeditated killing, and Lopez was liable for that killing as an aider and abettor. See Byford, 116 Nev. at 233, 994 P.2d at 712 (concluding that giving the Kazalyn instruction was not reversible error when the evidence was “clearly sufficient” to establish all elements of first-degree murder). Accordingly, we

ORDER the judgment of the district court AFFIRMED.

FOOTNOTES

1.   Having considered the pro se brief filed by appellant, we conclude that a response is not necessary. NRAP 46A(c). This appeal therefore has been submitted for decision based on the pro se brief and the record. NRAP 34(f)(3).

2.   We conclude that the district court did not abuse its discretion in declining to appoint counsel. See NRS 34.750.

3.   Lopez v. State, Docket No. 35790 (Order of Affirmance, February 4, 2003).

4.   Because Lopez's petition was submitted for filing within one year of Welch, the district court erred when it concluded that the petition was not filed within a reasonable time after the Welch decision. However, because the petition was filed more than one year after Sharma v. State, 118 Nev. 648, 56 P.3d 868 (2002), any claim regarding Sharma was procedurally barred.