CHRISTOPHER BROWN, 

Appellant, 

vs. 

E.K. MCDANIEL, WARDEN, 

Respondent. 

No. 60065 

FILED 

AUG 0 7 2014 

CL 

BY 

A• E K. LINDEMAN 

Up. As 40* 

CHI lz DEP LERK 

130 Nev., Advance Opinion 470 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

Appeal from a district court order dismissing a post- onviction 

petition for a writ of habeas corpus. Second Judicial District Court, 

Washoe County; Connie J. Steinheimer, Judge. 

Affirmed. 

Rene Valladares, Federal Public Defender, and Ryan Neil Norwood and 

Megan C. Hoffman, Assistant Federal Public Defenders, Las Vegas, 

for Appellant. 

Catherine Cortez Masto, Attorney General, Carson City; Richard A. 

Gammick, District Attorney, and Terrence P. McCarthy, Deputy District 

Attorney, Washoe County, 

for Respondent. 

Steven S. Owens, Las Vegas, 

for Amicus Curiae Nevada District Attorneys Association. 

Robert Arroyo, Las Vegas, 

for Arnicus Curiae Nevada Attorneys for Criminal Justice. 

Catherine Cortez Masto, Attorney General, and Jeffrey M. Conner and 

Michael J. Bongard, Deputy Attorneys General, Carson City, 

for Amicus Curiae Nevada Attorney General. 

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BEFORE THE COURT EN BANC. 

OPINION 

By the Court, HARDESTY, J.: 

Appellant Christopher Brown appeals from the district court's 

dismissal of his untimely and successive post-conviction petition for a writ 

of habeas corpus. At issue is whether, in light of the United States 

Supreme Court's recent decision in Martinez v. Ryan, 566 U.S. , 132 S. 

Ct. 1309 (2012), the ineffective assistance of post-conviction counsel may 

constitute good cause under MRS 34.726(1) and MRS 34.810 to allow a 

noncapital petitioner to file an untimely and successive post-conviction 

petition for a writ of habeas corpus. We conclude that Martinez does not 

alter our prior decisions that a petitioner has no constitutional right to 

post-conviction counsel and that post-conviction counsel's performance 

does not constitute good cause to excuse the procedural bars under NRS 

34.726(1) or MRS 34.810 unless the appointment of that counsel was 

mandated by statute. E.g., Crump v. Warden, 113 Nev. 293, 302-03,934 

P.2d 247, 253 (1997); McKague v. Warden, 112 Nev. 159, 163-65, 912 P.2d 

255, 257-58 (1996). Because Brown failed to overcome the procedural 

bars, we affirm the decision of the district court to dismiss the postconviction petition for a writ of habeas corpus. 

FACTS AND PROCEDURAL HISTORY 

Brown was convicted of first-degree murder with the use of a 

deadly weapon and was sentenced to two consecutive terms of 20 to 50 

years imprisonment. This court affirmed his judgment of conviction on 

appeal in January 2006. Brown v. State, Docket No 45026 (Order of 

Affirmance, January 11, 2006). The remittitur issued on February 7, 

2006. Brown then filed a timely post-conviction petition for a writ of 

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habeas corpus. The district court appointed counsel to represent him, and 

counsel filed a supplemental petition. The district court denied Brown's 

petition on the merits, and this court affirmed the district court's order. 

Brown v. State, Docket No. 51847 (Order of Affirmance, August 10, 2009). 

On June 10, 2010, Brown filed a second post-conviction 

petition for a writ of habeas corpus, alleging claims of ineffective 

assistance of trial and appellate counsel. Brown conceded that his petition 

was untimely and successive but argued that he had good cause to excuse 

the procedural bars because his first post-conviction counsel had provided 

ineffective assistance by failing to present these claims in his first postconviction petition, and because he was actually innocent and it would be 

a miscarriage of justice if his claims were procedurally barred. Brown 

filed a notice of supplemental authority alerting the district court to a 

then-pending case before the United States Supreme Court, Martinez v. 

Ryan, 566 U.S. , 132 S. Ct. 1309 (2012). The district court dismissed 

Brown's petition as procedurally barred pursuant to NRS 34.726(1) and 

MRS 34.810 because the petition was untimely and successive. The 

district court found that Brown failed to overcome the procedural bars 

because ineffective assistance of post-conviction counsel did not constitute 

cause to excuse the procedural bars and Brown did not demonstrate actual 

innocence. 

DISCUSSION 

Brown challenges the district court's determination that his 

claims were barred under MRS 34.726(1) and MRS 34.810. Specifically, he 

claims that he established "good cause" to excuse these procedural bars 

because his first post-conviction counsel was ineffective for failing to raise 

or preserve meritorious claims in his initial state post-conviction 

proceeding He relies on the Supreme Court's decision in Martinez. 

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The applicable procedural bars 

Nevada's statutory post-conviction scheme places procedural 

limits on the filing of a post-conviction petition for a writ of habeas corpus. 

NRS 34.726(1) provides for dismissal of a post-conviction habeas petition if 

it is not filed within one year after this court issues its remittitur from a 

timely direct appeal from the judgment of conviction or, if no appeal has 

been prosecuted, within one year from the entry of the judgment of 

conviction. See Dickerson v. State, 114 Nev. 1084, 1087, 967 P.2d 1132, 

1133-34 (1998). NRS 34.810(1)(b) provides for dismissal of claims where 

the petitioner's conviction was the result of a trial and the claims could 

have been raised earlier. NRS 34.810(2) provides for dismissal of a second 

or successive petition if the grounds for the petition were already raised 

and considered on the merits in a prior petition or if the grounds could 

have been raised in a prior petition. 

To overcome these statutory procedural bars, a petitioner 

must demonstrate "good cause" for the default and actual prejudice. NRS 

34.726(1); NRS 34.810(3). We have defined "good cause" as a "substantial 

reason .. . that affords a legal excuse." Hathaway v. State, 119 Nev. 248, 

252, 71 P.3d 503, 506 (2003) (internal quotations omitted). To show good 

cause, a petitioner must demonstrate that an "impediment external to the 

defense" prevented him from complying with the procedural rules. 

Passanisi v. Dir., Nev. Dep't of Prisons, 105 Nev. 63, 66, 769 P.2d 72, 74 

(1989) (citing Murray v. Carrier, 477 U.S. 478 (1986)); see also Pellegrini v. 

State, 117 Nev. 860, 886, 34 P.3d 519, 537 (2001). 

Brown filed his second post-conviction petition more than four 

years after the issuance of remittitur on direct appeal from the judgment 

of conviction. His first petition was denied on the merits, and the claims 

that he raised in his second petition were, or could have been, raised in his 

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first petition. Thus, as Brown concedes, his second petition is barred as 

untimely and successive unless he can demonstrate good cause for the 

default and actual prejudice. See NRS 34.726(1); NRS 34.810(2), (3). He 

asserts that the ineffective assistance of his prior post-conviction counsel 

provides cause and prejudice to excuse his failure to comply with Nevada's 

procedural rules governing post-conviction habeas petitions. 

Our case law clearly forecloses Brown's contention. We have 

consistently held that the ineffective assistance of post-conviction counsel 

in a noncapital case may not constitute "good cause" to excuse procedural 

defaults. See McKague, 112 Nev. at 163-65, 912 P.2d at 258; cf. Crump, 

113 Nev. at 303 & n.5, 934 P.2d at 253 & n.5; Mazzan v. Warden, 112 Nev. 

838, 841, 921 P.2d 920, 921-22 (1996). This is because there is no 

constitutional or statutory right to the assistance of counsel in noncapital 

post-conviction proceedings, and "[w]here there is no right to counsel there 

can be no deprivation of effective assistance of counsel." 1 McKague, 112 

Nev. at 164-65, 912 P.2d at 258. 

Martinez v. Ryan does not address state procedural bars 

Brown argues that Martinez changes this court's 

jurisprudence holding that ineffective assistance of post-conviction counsel 

'Petitioners who are sentenced to death have a statutory right to the 

appointment of counsel in their first post-conviction proceeding, see NRS 

34.820(1)(a), and are thus entitled to effective assistance of appointed 

counsel in that proceeding. See McKague, 112 Nev. at 165 n.5, 912 P.2d at 

258 n.5; see also Crump, 113 Nev. at 303 & n.5, 934 P.2d at 253 & n.5. In 

contrast, the appointment of post-conviction counsel to represent 

noncapital petitioners is subject to the district court's discretion as 

provided in NRS 34.750(1). 

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provides good cause to excuse a state procedural bar only when 

appointment of that counsel was mandated by statute. We disagree. 2 

Martinez, an Arizona state prisoner, filed a petition for a writ 

of habeas corpus in federal court raising claims of ineffective assistance of 

trial counsel 566 U.S. at 132 S. Ct. at 1314. Because those claims 

had been denied in state court based on a state procedural rule (they could 

have been raised in a prior state collateral proceeding), id. at , 132 S. 

Ct. at 1314, federal court review of their merits normally would have been 

precluded by the doctrine of procedural default, id. at , 132 S. Ct. at 

1316. Martinez did not dispute that his claims had been rejected in state 

court based on an independent and adequate state ground but instead 

relied on an exception to the procedural default doctrine by which a state 

"prisoner may obtain federal review of a defaulted claim by showing cause 

for the default and prejudice from a violation of federal law." Id. at , 

132 S. Ct. at 1316. In particular, he argued that he had good cause for the 

procedural default because counsel in his first state collateral proceeding 

was ineffective for failing to raise the ineffective-assistance-of-trial-counsel 

claims in that proceeding. Id. at , 132 S. Ct. at 1314-15. 

The Supreme Court in Martinez thus considered "whether 

ineffective assistance in an initial-review collateral proceeding on a claim 

2The State contends that we need not address this argument 

because any rule allowing the ineffective assistance of post-conviction 

counsel to constitute "good cause" to excuse procedural bars would not be 

retroactively applied to Brown. We conclude that retroactivity is not at 

issue because the second petition was the first opportunity for Brown to 

assert the ineffectiveness of post-conviction counsel as good cause to 

excuse a state procedural bar. 

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of ineffective assistance at trial may provide cause for a procedural default 

in a federal habeas proceeding." Id. at 132 S. Ct. at 1315 (emphasis 

added). The Supreme Court answered that question in the affirmative 

where state law provides that ineffective-assistance-of-trial-counsel claims 

must be raised in a collateral proceeding: 

Where, under state law, claims of ineffective 

assistance of trial counsel must be raised in an 

initial-review collateral proceeding, a procedural 

default will not bar a federal habeas court from 

hearing a substantial claim of ineffective 

assistance at trial if, in the initial-review 

collateral proceeding, there was no counsel or 

counsel in that proceeding was ineffective. 

Id. at 132 S. Ct. at 1320. 

The Supreme Court, however, expressly declined in Martinez 

to decide whether a federal constitutional right to counsel exists in postconviction proceedings and instead emphasized that its ruling was 

equitable in nature rather than constitutional. 3 Id. at , 132 S. Ct. at 

1315, 1318. The Court clarified that the equitable rule did not require the 

appointment of counsel in initial-review collateral proceedings in state 

court but rather permitted the State "to elect between appointing counsel 

in initial-review collateral proceedings or not asserting a procedural 

default and raising a defense on the merits in federal habeas proceedings." 

Id. at , 132 S. Ct. at 1319-20 (emphasis added). 

3The Court recognized that its decision in Coleman v. Thompson, 

501 U.S. 722 (1991), left open the question of "whether a prisoner has a 

right to effective counsel in collateral proceedings which provide the first 

occasion to raise a claim of ineffective assistance at trial." Martinez, 566 

U.S. at , 132 S. Ct. at 1315. The Martinez Court declined to answer 

that question. Id. at , 132 S. Ct. at 1315. 

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Martinez does not alter our decisions in McKague and Crump 

for two reasons. First, Martinez did not announce a constitutional right to 

counsel in post-conviction proceedings. Rather, the Court created an 

equitable exception to its decision in Coleman v. Thompson, 501 U.S. 722 

(1991), "that an attorney's negligence in a postconviction proceeding does 

not establish cause" so that a federal court may review a state prisoner's 

defaulted claim. Martinez, 566 U.S. at , 132 S. Ct. at 1319. Second, the 

Martinez decision is limited to the application of the procedural default 

doctrine that guides a federal habeas court's review of the 

constitutionality of a state prisoner's conviction and sentence. See, e.g., id. 

at , 132 S. Ct. at 1313 (describing the question presented as "whether a 

federal habeas court may excuse a procedural default"). It says nothing 

about the application of state procedural default rules. Thus, Martinez 

does not call into question the validity of NRS 34.750(1), which provides 

for the discretionary appointment of counsel to represent noncapital 

habeas petitioners, nor does it mandate a change in our case law holding 

that noncapital petitioners have no right to the effective assistance of 

counsel in post-conviction proceedings and that the ineffectiveness of 

counsel representing a noncapital petitioner does not constitute good 

cause to excuse a state procedural bar. 4 Accord State v. Escareno-Meraz, 

307 P.3d 1013, 1014 (Ariz. Ct. App. 2013) (concluding that "Martinez does 

not alter established Arizona law" that a defendant is not entitled to 

4We note that because Nevada requires that ineffective-assistanceof-trial-counsel claims be raised in a post-conviction petition rather than 

on direct appeal, see, e.g., Pellegrini, 117 Nev. at 882, 34 P.3d at 534, the 

equitable rule from Martinez will apply to Nevada state petitioners in 

federal habeas proceedings. 

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effective assistance of counsel in post-conviction proceedings); Gore v. 

State, 91 So. 3d 769, 778 (Fla. 2012) ("It appears that Martinez is directed 

toward federal habeas proceedings and is designed and intended to 

address issues that arise in that context."), cert. denied, 566 U.S. , 132 

S. Ct. 1904 (2012); Martin v. State, 386 S.W.3d 179, 185-86 (Mo. Ct. App. 

2012) ("Martinez speaks only to federal habeas corpus procedure and does 

not establish a constitutional right to the effective assistance of postconviction counsel."); Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. 

Super. Ct. 2013) ("While Martinez represents a significant development in 

federal habeas corpus law, it is of no moment with respect to the way 

Pennsylvania courts apply the plain language of the time bar set forth in 

[its post-conviction act]."), cert. denied, 571 U.S. , 134 S. Ct. 944 (2014); 

Kelly v. State, 745 S.E.2d 377, 377 (S.C. 2013) ("Like other states, we 

hereby recognize that the holding in Martinez is limited to federal habeas 

corpus review and is not applicable to state post-conviction relief 

actions."). 

Brown and amicus curiae Nevada Attorneys for Criminal 

Justice (NACJ) nonetheless urge this court to adopt the rationale from 

Martinez even if Martinez does not require us to do so. 5Brown contends 

that the reasoning behind Martinez—promotion of comity, finality, and 

federalism—applies equally to state habeas proceedings, and Nevada's 

cause-and-prejudice analysis is nearly identical to the federal cause-andprejudice standard. We decline Brown's invitation to adopt an equitable 

5We invited the participation of amici curiae NACJ and the Nevada 

District Attorneys Association (NDAA) concerning the applicability of 

Martinez to state post-conviction proceedings. 

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exception to the general rule in Nevada that the ineffective assistance of 

post-conviction counsel does not establish cause for a habeas petitioner's 

procedural default of an ineffective-assistance-of-trial-counsel claim unless 

the appointment of post-conviction counsel was mandated by statute. 

The exception pressed by Brown is contrary to the statutory 

language in NRS Chapter 34 and the clear legislative intent behind the 

statutes. Nevada's post-conviction statutes contemplate the filing of one 

post-conviction petition to challenge a conviction or sentence. This is 

reflected in the plain language of the statutes themselves. For example, 

instruction number five to the habeas corpus petition form found in NRS 

34.735 directs petitioners to include in the petition "all grounds or claims 

for relief' regarding the conviction or sentence and warns petitioners that 

failure to do so could preclude them from filing future petitions, 6and NRS 

34.810 provides for dismissal of claims that could have been or were raised 

in a prior post-conviction proceeding, NRS 34.810(1)(b), (2). It is also 

reflected in the legislative history of the statutes, which were amended in 

1991 to provide for a single post-conviction remedy, effective January 1, 

1993. See Pellegrini v. State, 117 Nev. 860, 870-73, 876-77, 34 P.3d 519, 

526-28, 530 (2001) (setting forth the history of Nevada's post-conviction 

remedies). The purpose of the single post-conviction remedy and the 

°See also NRS 34.820(4) (providing that if petitioner has been 

sentenced to death and the petition is the first one challenging the validity 

of a conviction or sentence, "[Ole court shall inform the petitioner and the 

petitioner's counsel that all claims which challenge the conviction or 

imposition of the sentence must be joined in a single petition and that any 

matter not included in the petition will not be considered in a subsequent 

proceeding"). 

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statutory procedural bars is "to ensure that petitioners would be limited to 

one time through the post-conviction system." Id. at 876-77, 34 P.3d at 

530. As this court made clear in Pellegrini, "Nevada's lawmakers never 

intended for petitioners to have multiple opportunities to obtain postconviction relief absent extraordinary circumstances." Id. at 876, 34 P.3d 

at 530. The rule advanced on Brown's behalf would circumvent the 

Legislature's "one time through the system" intent, as every petitioner 

who is appointed post-conviction counsel would then have an opportunity 

to litigate a second petition. The filing of successive (and most likely 

untimely) petitions would overload the court system, significantly increase 

the costs of post-conviction proceedings, and undermine the finality of the 

judgment of conviction, precisely what the Legislature was attempting to 

avoid in creating the single post-conviction remedy in NRS Chapter 34. 7 

See id.; see also State v. Eighth Judicial Dist. Court, 121 Nev. 225, 231, 

112 P.3d 1070, 1074 (2005) ("Habeas corpus petitions that are filed many 

years after conviction are an unreasonable burden on the criminal justice 

system. The necessity for a workable system dictates that there must 

7The lack of finality resulting from Martinez's equitable rule was a 

major criticism by the dissenting justices: 

Criminal conviction ought to be final before society 

has forgotten the crime that justifies it. When a 

case arrives at federal habeas, the state conviction 

and sentence at issue (never mind the underlying 

crime) are already a dim memory, on average 

more than 6 years old (7 years for capital cases). 

Martinez, 566 U.S. at , 132 S. Ct. at 1325 (Scalia, J., dissenting). 

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exist a time when a criminal conviction is final." (internal quotations 

omitted)). 

The conflict between a rule similar to that in Martinez and 

Nevada's current statutory habeas scheme becomes more apparent when 

the remaining part of the Martinez rule is considered. Martinez does not 

just allow the federal habeas courts to consider the merits of an 

ineffective-assistance-of-trial-counsel claim that was procedurally 

defaulted in state court where the petitioner was represented by allegedly 

ineffective post-conviction counsel in the initial-review collateral 

proceeding. It also allows the federal habeas courts to consider the merits 

of a procedurally defaulted ineffective-assistance-of-trial-counsel claim 

where the petitioner did not have counsel in the initial-review collateral 

proceeding. 566 U.S. at , 132 S. Ct. at 1319-20. Although Brown only 

urges this court to follow Martinez with respect to "cause" based on 

ineffective assistance of post-conviction counsel, it would be difficult for us 

to follow one part of Martinez without the other as both parts of the 

holding are based on the same idea—that "a prisoner likely needs an 

effective attorney" in order "[t]o present a claim of ineffective assistance at 

trial in accordance with the State's procedures," id. at , 132 S. Ct. at 

1317. If we were to follow the failure-to-appoint-counsel part of Martinez, 

we would effectively eliminate the mandatory procedural default 

provisions (particularly NRS 34.810) when the district court determines 

that the appointment of counsel is not warranted, as it has the discretion 

to do under NRS 34.750(1). The only way to maintain the integrity of the 

mandatory procedural default provisions would be to appoint counsel in all 

initial-review post-conviction proceedings, effectively making the 

appointment of counsel mandatory in direct contravention of NRS 

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34.750(1). 8Given these provisions and the Supreme Court's refusal to 

recognize a constitutional right to counsel in initial-review collateral 

proceedings, this is one more reason that we cannot reconcile the Martinez 

rule with our state habeas statutes even on the purportedly limited scope 

advanced by Brown. 

We also reject the suggestion that we should adopt an 

exception similar to that adopted in Martinez because the Legislature 

intended that the state habeas remedy be "coextensive" with the federal 

habeas remedy and exceptions to federal procedural bars. Although the 

Legislature may have created the statutory post-conviction remedy in 

response to United States Supreme Court decisions that implied "the need 

for an appropriate state post-conviction collateral remedy to review 

claimed violations of federally protected rights," Marshall v. Warden, 83 

Nev. 442, 444, 434 P.2d 437, 438-39 (1967) (citing Case v. Nebraska, 381 

U.S. 336 (1965)) (indicating that the Nevada Legislature's adoption of the 

post-conviction collateral remedy act in 1967 was in response to the 

Supreme Court's extension of numerous federal protections to state 

criminal cases), superseded by statute as stated in Passanisi v. Dir., Nev. 

8The Legislature at one time made the appointment of counsel 

mandatory in post-conviction proceedings, see 1973 Nev. Stat., ch. 102, § 2, 

at 169, but later made appointment of counsel discretionary, see 1987 Nev. 

Stat., ch. 539, § 42, at 1230; see also Crump, 113 Nev. at 297 n.2, 934 P.2d 

at 249 n.2. This history, combined with the Legislature's enactment of the 

current statutes providing for mandatory appointment of counsel for 

capital petitioners but discretionary appointment for noncapital 

petitioners, compare NRS 34.750(1), with NRS 34.820(1), evinces an intent 

to preclude noncapital petitioners from automatically being appointed 

counsel. 

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Dep't of Prisons, 105 Nev. 63, 67, 769 P.2d 72, 75 (1989), the statutory 

provisions and legislative history do not evidence an intent that Nevada's 

statutory procedural bars be coterminous with the federal doctrine of 

procedural default. The doctrine of procedural default applied by federal 

habeas courts is based in principles of comity; it is "designed to ensure 

that state-court judgments are accorded the finality and respect necessary 

to preserve the integrity of legal proceedings within our system of 

federalism." Martinez, 566 U.S. at , 132 S. Ct. at 1316. In contrast, as 

explained above, Nevada's statutory procedural bars are designed to 

streamline the post-conviction review process and ensure the finality of 

judgments of conviction while leaving open a safety valve for defaulted 

violations of state law and constitutional rights in very limited 

circumstances. 9The state procedural bars to post-conviction habeas relief 

thus "exist to implement policies independent from those animating the 

9We agree with Brown that the State has an interest in having 

federal constitutional errors addressed in the first instance by a Nevada 

court. But that interest is not the focus of Nevada's statutory habeas 

remedy. The Legislature adopted mandatory procedural bars and did not 

include an exception to the procedural bars for procedurally defaulted 

claims that might nonetheless be addressed on the merits by a federal 

habeas court. That is understandable since doing so would mean that a 

petitioner's desire to exhaust a claim in state court before federal court 

review would always excuse a state procedural bar—a result that would 

render those procedural bars largely meaningless and undermine the 

interest in finality that animates the statutory habeas remedy and its 

procedural bars. Cf. In re Reno, 283 P.3d 1181, 1233 (Cal. 2012) (rejecting 

the claim that petitioner's desire to exhaust claims for federal review 

provided an exception to a state procedural rule precluding habeas corpus 

where claimed errors could have been raised on appeal because such an 

exception "would fatally undermine this state's substantial interest in the 

finality of its criminal judgments"). 

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[federal doctrineS of procedural default]." In re Reno, 283 P.3d 1181, 1233 

& n.30 (Cal. 2012). 

Our history of turning to federal cases defining cause and 

prejudice when interpreting similar language in Nevada's procedural 

default statutes does not undermine that conclusion or require that we 

blindly follow Martinez. While we have looked to the Supreme Court for 

guidance, 10we have not followed Supreme Court decisions when they are 

inconsistent with state law. For example, we have rejected the prison 

mailbox rule to allow for tolling of the one-year period for state postconviction habeas petitions, despite the application of it by federal habeas 

courts. See Gonzales v. State, 118 Nev. 590, 594-95, 53 P.3d 901, 903-04 

(2002). We have also rejected equitable tolling of the one-year filing period 

set forth in NRS 34.726 because the statute's plain language requires a 

petitioner to demonstrate a legal excuse for any delay in filing a petition. 

See Hathaway, 119 Nev. at 252, 254 n.13, 71 P.3d at 506, 507 n.13. We 

are not bound by Supreme Court decisions in our interpretation of the 

105ee, e.g., Passanisi, 105 Nev. at 66, 769 P.2d at 74 (citing Murray 

v. Carrier, 477 U.S. 478 (1986), for the requirement that good cause be 

some impediment "external to the defense"); Hathaway v. State, 119 Nev. 

248, 252, 71 P.3d 503, 506 (2003) (quoting the Supreme Court's 

explanation in Murray, 477 U.S. at 488, as to how an impediment 

"external to the defense" may be demonstrated); McKague v. Warden, 112 

Nev. 159, 164 & n.4, 165, 912 P.2d 255, 258 & n.4 (1996) (adopting the 

reasoning that the Supreme Court applied to federal habeas proceedings 

as to whether the ineffective assistance of counsel may constitute "good 

cause"); Crump v. Warden, 113 Nev. 293, 304, 934 P.2d 247, 253 (1997) 

(relying on Murray and Coleman v. Thompson, 501 U.S. 722 (1991), for the 

proposition that mere attorney error such as ignorance or inadvertence 

may not constitute "cause"). 

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"cause" exceptions under NRS 34.726 and 34.810, and because the 

Martinez rule does not fit within our State's statutory post-conviction 

framework, we decline to extend it to state post-conviction proceedings. 

Post-conviction relief is a statutory remedy and it is up to the 

Legislature to define its contours. Adoption of a rule fashioned after 

Martinez would conflict with the current statutory post-conviction scheme, 

impose significant costs, and undermine the finality of judgments of 

conviction. Whether or how a rule similar to that adopted in Martinez 

should be adopted in state post-conviction proceedings is a matter of policy 

and lies in the hands of the Legislature. Based on the foregoing, we 

conclude that Brown's petition was barred as untimely and successive and 

that he did not demonstrate good cause and prejudice to overcome the 

procedural bars. 

Actual innocence 

Brown also argues that the failure to consider his claims on 

the merits would result in a fundamental miscarriage of justice because 

there was no evidence of premeditation and deliberation, and thus the 

facts at trial did not support a finding of first-degree murder. In order to 

demonstrate a fundamental miscarriage of justice, a petitioner must make 

a colorable showing of actual innocence—factual innocence, not legal 

innocence. Pellegrini, 117 Nev. at 887, 34 P.3d at 537; see Calderon v. 

Thompson, 523 U.S. 538, 559 (1998). Actual innocence means that "it is 

more likely than not that no reasonable juror would have convicted him in 

light of. . . new evidence." Calderon, 523 U.S. at 559 (quoting Schlup v. 

Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini, 117 Nev. at 887, 34 

P.3d at 537. Brown does not identify any new evidence of his innocence; 

rather, his argument of actual innocence relies on his legal claims that 

there was insufficient evidence of first-degree murder presented at trial 

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and that his counsel provided ineffective assistance at trial Thus, the 

district court did not err in finding that Brown failed to make a showing of 

actual innocence. 

CONCLUSION 

We conclude that Brown is not entitled to relief in this appeal, 

and we affirm the district court's order dismissing his untimely and 

successive petition for a writ of habeas corpus. 11 

, J. 

Hardesty 

We concur: 

etchutAkp 

Pickering 

ouut_02_96--0 

Parraguirre 

J. 

111n light of this disposition on appeal, we deny as moot the State's 

motion for leave to file a response to Brown's notice of supplemental 

authorities. 

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C. J. 

J. 

O. 
CHERRY, J., with whom SAITTA, J., agrees, dissenting: 

I respectfully dissent. I believe that equity and fairness 

require a different result. In carving out an equitable exception to the 

cause requirement, Martinez recognized that the "right to the effective 

assistance of counsel at trial is a bedrock principle in our justice 

system. . . . Indeed, the right to counsel is the foundation for our 

adversary system." 566 U.S. at , 132 S. Ct. at 1317. A post-conviction 

petition for a writ of habeas corpus is a defendant's first and last chance to 

assert a claim of ineffective assistance of trial counsel and thus is vital to 

safeguarding a defendant's right to counsel at trial. Although the 

appointment of post-conviction counsel currently is not required in 

Nevada, I believe that indigent noncapital petitioners like Brown who 

have been convicted of murder and are serving significant sentences, 

should have the assistance of counsel in their first state post-conviction 

petition. See NRS 34.750(1) (indicating that a court may consider the 

"severity of the consequences facing the petitioner" when deciding whether 

to appoint post-conviction counsel). Once post-conviction counsel has been 

appointed to represent such a petitioner, counsel should be effective. A 

petitioner who has been convicted of murder and is facing a severe 

sentence should not be denied the chance to litigate a meritorious claim of 

ineffective assistance of trial counsel merely because his post-conviction 

counsel failed to raise the claim in the initial post-conviction proceeding. 

Thus, in these circumstances, I agree with amicus curiae NACJ that there 

are compelling reasons to adopt the equitable exception from Martinez in 

state habeas proceedings. Accordingly, I would reverse and remand for 

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I concur: 

the district court to determine whether Brown can demonstrate a 

substantial underlying ineffective-assistance-of-trial-counsel claim. 

J. 

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