IE ILLAIDEIAAN 

CLE URT 

SY 

NI OLE 

SUPREME COURT 

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NEVADA 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

WILLIE RAY LEWIS, 

Appellant, 

vs. 

ROBERT LEGRAND, WARDEN, 

Respondent. 

No. 66985 

FILED 

FEB 1 0 2016 

ORDER OF AFFIRMANCE 

This is an appeal from an order of the district court denying 

appellant's postconviction petition for a writ of habeas corpus. Eighth 

Judicial District Court, Clark County; Michelle Leavitt, Judge. 

Appellant Willie Ray Lewis was convicted in 2006 of 41 counts 

of sexual assault with a minor under 16 years of age, 3 counts of lewdness 

with a minor under 16 years of age, and 1 count of attempted sexual 

assault with a minor under 16 years of age. Following direct appeal, this 

court reversed 36 counts of the sexual assault conviction for insufficient 

evidence and affirmed the remaining convictions. Lewis v. State, Docket 

No. 47630 (Order Affirming in Part, Reversing in Part and Remanding, 

August 7, 2007). Remittitur issued on September 4, 2007. 

Lewis filed a timely pro se petition for a writ of habeas corpus 

on October 16, 2007. The district court denied his petition without 

conducting an evidentiary hearing. On appeal this court affirmed in part 

and reversed in part, holding that the district court erred in failing to 

conduct an evidentiary hearing on Lewis's allegations that trial counsel 

failed to interview and investigate certain witnesses. Lewis v. State, 

Docket No. 50872 (Order Affirming in Part, Reversing in Part and 

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Remanding, June 18, 2009). This court remanded to the district court for 

an evidentiary hearing limited to how counsel prepared Mekedes 

Fransiscos, considering that her testimony at trial did not support 

counsel's opening argument, and Lewis's allegations that counsel was 

ineffective for failing to interview and present testimony from Pamela 

McCoy, Mack Sims, Jr., and Charlie Scott. Id. at 7-9. 

The district court held an evidentiary hearing in 2009 at 

which Lewis appeared pro se and questioned his trial counsel on her 

investigation as it pertained to the relevant potential witnesses. Lewis 

moved for the appointment of counsel, and the district court held a 

hearing and denied the motion. During the evidentiary hearing, the 

district court explained that appointed counsel was not necessary because 

the limited purpose of the remand meant that the hearing would be 

relatively simple. The district court stated that it would appoint counsel if 

it became necessary and later noted that Lewis was "doing fine" in 

pursuing his questions. The district court found that counsel's 

performance was not deficient and that Lewis had not shown prejudice 

and denied the petition. This court affirmed the district court's order. 

Lewis v. State, Docket No. 55305 (Order of Affirmance, June 9, 2010). 

On June 29,2010, Lewis, acting pro se, filed a second state 

postconviction petition. The district court denied this petition, finding 

that Lewis had not demonstrated good cause to overcome the procedural 

bars and that the law-of-the-case doctrine prevented Lewis from 

relitigating matters previously decided. This court affirmed the district 

court's order. Lewis v. State, Docket No. 56652 (Order of Affirmance, 

March 17, 2011). 

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On May 12, 2011, Lewis filed a pro se petition for a writ of 

habeas corpus in federal district court, and the federal public defender's 

office was appointed to represent him. The federal district court granted 

Lewis a stay to exhaust his remaining state claims on June 2, 2014. 

On July 17, 2014, Lewis, represented by counsel, filed the 

instant petition, his third state postconviction petition for a writ of habeas 

corpus. Lewis argued that his trial counsel provided ineffective assistance 

of counsel for failing to interview, prior to trial, the victims and several 

potential witnesses that he identified to counsel. The district court denied 

his claim as time-barred and successive and found that Lewis had not 

shown good cause or prejudice to excuse the procedural bars. 

Lewis filed the instant petition more than six years after 

issuance of remittitur on his direct appeal. Thus, his petition was 

untimely filed. See NRS 34.726(1). Lewis's claim that counsel was 

ineffective for failing to investigate and interview the potential witnesses 

that he identified to counsel was successive because he made this claim in 

his first petition for habeas relief. See NRS 34.810(2). Lewis's claim that 

counsel was ineffective for failing to interview the victims was an abuse of 

the writ because it was new and different from the claims raised in his 

first habeas petition. See NRS 34.810(1)(b)(2); NRS 34.810(2). Lewis'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). 

Lewis argues on appeal that the district court's denial of his 

motions to appoint counsel in the first postconviction proceeding 

constitutes good cause to excuse the procedural bar because the district 

court deprived him of a meaningful opportunity to participate in the 2009 

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evidentiary hearing. Lewis concedes that he had no statutory entitlement 

to appointed counsel and does not argue that the district court erred in 

applying NRS 34.750(1). 

Good cause requires the petitioner to demonstrate that the 

delay was not his fault and that dismissal of the petition will unduly 

prejudice him. NRS 34.726(1). A petitioner establishes good cause by 

showing that an impediment external to the defense prevented him from 

complying with procedural default rules. Hathaway v. State, 119 Nev. 

248, 252, 71 P.3d 503, 506 (2003). 

Lewis cannot assert an external impediment to compliance 

when he timely argued in his first petition that counsel failed to properly 

investigate and interview witnesses and has not identified any 

impediment preventing his arguing then that counsel also failed to 

interview the victims. The transcript shows that Lewis was able to 

question his former counsel on the limited issues of the evidentiary 

hearing. Lewis's claim that he would have been able to more effectively 

cross-examine his former counsel during the evidentiary hearing had he 

known that he could have subpoenaed her notes does not constitute good 

cause. See Hood v. State, 111 Nev. 335, 338, 890 P.2d 797, 798 (1995) 

("Counsel's failure to send appellant his files did not prevent appellant 

from filing a timely petition, and thus did not constitute good cause for 

appellant's procedural default."). That his claims might have been 

litigated more effectively by appointed counsel does not constitute good 

cause, as the lack of access to trained legal expertise is not an impediment 

external to the defense and does not constitute good cause. See Phelps v. 

Dir., Nev. Dep't. of Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988) 

(holding that a petitioner's limited intelligence and poor legal assistance 

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from inmate law clerks did not establish good cause), superseded by statute 

on other grounds as stated in State v. Haberstroh, 119 Nev. 173, 69 P.3d 

676 (2003). 

Even if Lewis had demonstrated good cause, Lewis must show 

actual prejudice as well. See NRS 34.726(1); NRS 34.810(1)(b); NRS 

34.810(3). Actual prejudice requires a petitioner to show error that caused 

him actual and substantial disadvantage. Hogan v. Warden, 109 Nev. 

952, 960, 860 P.2d 710, 716 (1993). Lewis argues that he suffered 

prejudice when counsel's failure to properly investigate prevented his 

presenting beneficial witnesses. We address the merits of Lewis's claim of 

ineffective assistance of counsel only to review whether he has 

demonstrated actual prejudice. To establish ineffective assistance of 

counsel, Lewis must show that counsel's performance was deficient in that 

it fell below an objective standard of reasonableness, and resulting 

prejudice such that there is a reasonable probability that, but for counsel's 

errors, the outcome of the proceedings would have been different. 

Strickland, 466 U.S. at 687-88; Warden v. Lyons, 100 Nev. 430, 432-33, 

683 P.2d 504, 505 (1984) (adopting the test in Strickland). Both deficiency 

and prejudice must be shown. Strickland. 466 U.S. at 697. An attorney 

must reasonably investigate in preparing for trial or reasonably decide not 

to. Strickland, 466 U.S. at 691; Kirksey v. State, 112 Nev. 980, 992, 923 

P.2d 1102, 1110 (1996). Based on Lewis's proffered description of the 

anticipated testimony of the relevant potential witnesses, we conclude 

that he has failed to show that the outcome would have been different had 

they been presented to testify: the district court stated that it would not 

have admitted testimony about the minor victims propensity to lie on 

unrelated occasions, and counsel explained that she would not have 

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J. 

erry 

pursued a character defense as a strategic decision. Lewis failed to 

identify what impeachment interviewing the victims would yield such that 

it would have rendered a different outcome. See Molina v. State, 120 Nev. 

185, 192, 87 P.3d 533, 538 (2004) (holding that appellant failed to show 

prejudice under Strickland where he failed to show what evidence a more 

thorough investigation would have yielded). The bare allegation that the 

interview would result in their impeachment is insufficient. See Hargrove 

v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984). The record shows 

that the purported "recantation tape" was indecipherable, and, in failing 

to identify its contents, Lewis has failed to show how it could have led to a 

reasonable probability of a different outcome. We conclude that Lewis has 

failed to show either good cause or actual prejudice and thus that the 

district court did not err in denying Lewis's third state petition for habeas 

relief as procedurally barred. Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 

Parraguirre 

r-7%) 

441.;4074 , J. 

Douglas, 

cc: Hon. Michelle Leavitt, District Judge 

Federal Public Defender/Las Vegas 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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