RANDOLPH v. STATE (2021)

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; Kathleen E. Delaney, Judge. Appellant Roger Randolph argues that the district court erred in denying his petition as procedurally barred. We affirm.

Randolph filed the petition four years after remittitur issued on his direct appeal. Randolph v. State, Docket No. 60993 (Order of Affirmance, January 30, 2015). Thus, his petition was untimely filed. See NRS 34.726(1). The petition was also successive because he had previously litigated a postconviction petition for a writ of habeas corpus and a direct appeal in which he asserted a similar claim for relief. See NRS 34.810(1)(b)(2); NRS 34.810(2); Randolph v. State, Docket No. 71238-COA (Order of Affirmance, June 14, 2017); Randolph, Docket No. 60993, Order of Affirmance at 11. Randolph's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3). Good cause may be demonstrated by a showing that the factual or legal basis for a claim was not reasonably available to be raised in a timely petition. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003).

Randolph argues that the Supreme Court's recent decision in McCoy v. Louisiana, 138 S. Ct. 1500 (2018), provides good cause. He is mistaken, as McCoy is distinguishable. McCoy holds that an attorney may not concede a defendant's guilt where the defendant expressly objects or insists on maintaining his or her innocence. 138 S. Ct. at 1509. McCoy differentiated a defendant who opposed counsel's concession from a defendant who “ ‘was generally unresponsive’ during discussions of trial strategy, and ‘never verbally approved or protested’ ” the concession. Id. (quoting Florida v. Nixon, 543 U.S. 175, 181 (2004)). Although McCoy noted that the decision to concede was similar in nature to other decisions reserved to a defendant, like “whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal,” id. at 1508, McCoy does not require consent or a canvass. It only requires that counsel not pursue a concession strategy over a defendant's objection. Id. at 1509-10; see also Nixon, 543 U.S. at 186-92 (rejecting notion that concession strategy requires express consent or that it is the functional equivalent of a guilty plea).¹ Here, trial counsel admitted in opening statement and closing argument that Randolph committed second-degree murder, while arguing that Randolph lacked the requisite intent for first-degree murder. During a canvass after jury selection and before trial, Randolph expressly consented to counsel's strategy. McCoy is distinguishable because Randolph never opposed the concession and expressly consented during the pretrial canvass. Because McCoy is distinguishable, we need not resolve Randolph's argument that McCoy applies retroactively. Accordingly, Randolph has not shown that McCoy provides good cause, and the district court correctly applied the mandatory procedural bars.² See State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005).

Having considered Randolph's contentions and concluded that they do not warrant relief, we

ORDER the judgment of the district court AFFIRMED.

FOOTNOTES

1.   Notably, McCoy did not alter the holding in Nixon. McCoy, 138 S. Ct. at 1509.

2.   We reject the State's argument that Randolph may only argue ineffectiveness of counsel in a postconviction habeas petition and thus may not raise a McCoy claim in a postconviction habeas petition. The McCoy claim was permissible, albeit subject to the procedural bars. See NRS 34.724(1) (“Any person convicted of a crime and under sentence of ․ imprisonment who claims that the conviction was obtained ․ in violation of the Constitution of the United States or the Constitution or laws of this State ․ may ․ file a postconviction petition for a writ of habeas corpus to obtain relief from the conviction ․”); NRS 34.810(1)(b) (waiver bar).