IN THE SUPREME COURT OF THE STATE OF NEVADA 

RODNEY LYN EMIL, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 65627 

FILE 

APR 2 2 2016 

TRACE K. LNDEMAN 

CLERK OF SUPREME COURT 

BY 

DEPUTY CLEFII; 

ORDER OF AFFIRMANCE 

This is an appeal from a district court order denying a fourth 

postconviction petition for a writ of habeas corpus in a death penalty case. 

Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge. 

Appellant Rodney Lyn Emil shot and killed his stepfather on 

Father's Day in 1984. A jury convicted him of first-degree murder and 

sentenced him to death. This court affirmed his conviction and sentence 

on direct appeal. Emil v. State, 105 Nev. 858, 784 P.2d 956 (1989). In this 

appeal from the denial of his fourth postconviction petition for a writ of 

habeas corpus, Emil argues that the district court erred by denying his 

petition as procedurally barred without conducting an evidentiary 

hearing. 

Because he filed his petition on October 7, 2013, 

approximately 23 years after this court resolved his direct appeal, the 

petition was untimely under NRS 34.726(1). The petition was also 

successive because he had previously sought postconviction relief and 

therefore was procedurally barred. NRS 34.810(1)(b)(2). To overcome the 

procedural defaults, Emil had to demonstrate good cause and prejudice. 

NRS 34.726(1); NRS 34.810(3). 

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As cause to overcome the procedural default rules, Emil 

argues that postconviction counsel who represented him in his 1992 

postconviction proceedings rendered ineffective assistance and abandoned 

him, as evidenced by this court's removal of counsel.' Emil v. State, 

Docket No. 28463 (Order, June 24, 1997). His claim lacks merit because 

he had no right to the effective assistance of postconviction counsel. While 

it is arguable whether the petition filed in 1992 can be considered his first 

postconviction petition in light of his 1990 postconviction petition that was 

not expressly resolved by the district court, both postconviction petitions 

were filed before the effective date of the statute mandating appointment 

of counsel for a first postconviction habeas petition in a death penalty 

case. See NRS 34.820(1); 1991 Nev. Stat., ch. 44, §§ 32-33, at 92; Mazzan 

v. Warden, 112 Nev. 838, 841 n.1, 921 P.2d 920, 921 n.1 (1996). Because 

counsel was not appointed pursuant to NRS 34.820, Emil did not have a 

right to the effective assistance of postconviction counsel. See Bejarano v. 

Warden, 112 Nev. 1466, 1470 n.1, 929 P.2d 922, 925 n.1 (1996); McKague 

v. Warden, 112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996). 

"To the extent Emil relies on Martinez v. Ryan, 566 U.S. , 132 S. 

Ct. 1309 (2012), and Maples v. Thomas, 565 U.S. , 132 S. Ct. 912 

(2012), as good cause to excuse the delay in raising his postconviction 

claims, his claim lacks merit. His postconviction petition was filed more 

than one year after Martinez and Maples were decided, and therefore he 

did not raise this claim within a reasonable time. See Hathaway v. State, 

119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003). Moreover, we held in 

Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 871-72 (2014), 

that Martinez does not apply to Nevada's statutory procedures. To the 

extent Emil relies on Maples for the proposition that counsel's 

abandonment may constitute good cause, we conclude that he was not 

abandoned as contemplated by Maples. 

SUPREME COURT 

OF 

NEVADA 
Accordingly, the ineffective assistance of postconviction counsel cannot 

serve as good cause to overcome the procedural bars. 2 Pellegrini v. State, 

117 Nev. 860, 887-88, 34 P.3d 519, 537-38 (2001). Therefore, the district 

court did not err by denying the petition as procedurally barred without 

conducting an evidentiary hearing. See Nika v. State, 124 Nev. 1272, 

1300-01, 198 P.3d 839, 858 (2008) (observing that an evidentiary hearing 

is warranted only where a petitioner "asserts specific allegations that are 

not belied or repelled by the record and that, if true, would entitle him to 

relief'). 

In addition to the procedural bars in NRS 34.726 and NRS 

34.810, the district court denied the petition based on laches under NRS 

34.800. Emil argues that NRS 34.800 does not apply because the State 

failed to explain how it was prejudiced by the delay in filing the petition. 

His contention lacks merit for two reasons. First, because five years 

elapsed between the appeal of the judgment of conviction and the filing of 

the postconviction petition, a rebuttable presumption of prejudice to the 

State arose. NRS 34.800(2). Therefore, Emil, not the State, bore the 

burden of overcoming that presumption, id., and he has not done so. 

Second, even assuming that he could overcome the laches bar, his petition 

is procedurally barred under NRS 34.726 and NRS 34.810. 3 

2To the extent Emil argues that he continued to be deprived of 

conflict-free counsel after initial counsel was removed, that circumstance 

does not constitute good cause because he still did not have the right to the 

effective assistance of postconviction counsel. 

3Emil argues that he is actually innocent of first-degree murder and 

the death penalty. Below, he asserted a claim that he is actually innocent 

of the death penalty because the jurors' "deliberations did not involve 

continued on next page. . . 

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OF 

NEVADA 

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Cherry 

Piek.e4 

Pickering 

Having considered Emil's arguments and concluded that no 

relief is warranted, we 

ORDER the judgment of the district court AFFIRMED. 4 

Parraguirre 

Saitta 

Hardesty 

• . . continued 

substantial mitigating circumstances, and evidence of innocence, which 

trial counsel never investigated, identified or presented." We conclude 

that the district court did not err by denying this claim. See generally 

Lisle v. State, 130 Nev., Adv. Op. 39, 351 P.3d 725, 734 (2015) (observing 

that "an actual-innocence inquiry in Nevada must focus on the objective 

factors that make a defendant eligible for the death penalty," that is, the 

aggravating circumstances, and, therefore, a claim of actual innocence of 

the death penalty offered as a gateway to reach a procedurally defaulted 

claim cannot be grounded in new evidence of mitigating circumstances). 

Further, because he did not raise a claim in his postconviction petition 

that he is actually innocent of first-degree murder, we need not consider 

that claim. See Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 

(1991), overruled on other grounds by Means v. State, 120 Nev. 1001, 103 

P.3d 25 (2004). As to Emil's contention that the district court misapplied 

the law-of-the-case doctrine in denying his petition, we conclude that no 

relief is warranted. 

4The Honorable Mark Gibbons, Justice, voluntarily recused himself 

from participation in the decision of this matter. 

SUPREME COURT 

OF 

NEVADA 

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ma USN= 
cc: Hon. Douglas W. Herndon, District Judge 

Federal Public Defender/Central Dist. of CA. 

Joel M. Mann, Chtd. 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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