                           IN THE SUPREME COURT OF THE STATE OF NEVADA


                   JESSICA WILLIAMS,                                        No. 66579
                   Appellant,
                   vs.
                   THE STATE OF NEVADA,                                            FILED
                   Respondent.                                                     FEB 2 6 2016
                                                                                 TRACE K. LtNDEMAN
                                                                              CLER OP SUPREME COURT
                                                                              BY
                                                                                   DEPUTY CLERK
                                           ORDER OF AFFIRMANCE
                               This is an appeal from an order of the district court denying a
                   postconviction petition for a writ of habeas corpus. Eighth Judicial
                   District Court, Clark County; Michelle Leavitt, Judge.
                               Appellant Jessica Williams filed her second postconviction
                   petition for a writ of habeas corpus on June 28, 2011. Williams raised
                   several claims in her second petition: (1) she was not provided fair notice
                   that she would be subject to criminal liability for driving with marijuana
                   metabolite in her blood or urine, (2) her trial and appellate counsel were
                   ineffective for failing to argue that marijuana metabolite was not a
                   prohibited substance as a matter of state law, (3) her trial and appellate
                   counsel were ineffective for failing to argue that Williams did not have fair
                   notice that she would be subject to criminal liability for driving with
                   marijuana metabolite in her blood or urine, and (4) this court's decision in
                   Williams v. State, 120 Nev. 473, 93 P.3d 1258 (2004) (Williams II) was an
                   act of judicial expansion depriving her of fair notice. Williams' petition
                   was procedurally defective in several respects.
                               Williams' petition was filed more than 8 years after issuance
                   of the remittitur on direct appeal on January 3, 2003.     Williams v. State,
                   118 Nev. 536, 50 P.3d 1116 (2002). Thus, her petition was untimely filed.

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                  See NRS 34.726(1). Williams' claim that she did not have fair notice was
                  subject to the waiver bar (NRS 34.810(1)(b)) because this claim could have
                  been raised on direct appeal. Williams' claims that she did not have fair
                  notice and her trial and appellate counsel were ineffective were an abuse
                  of the writ as they were new and different from the claim litigated in her
                  first petition.   See NRS 34.810(1)(b)(2); NRS 34.810(2). Williams could
                  have raised her judicial expansion claim in a petition for rehearing in
                  Williams II.      Williams' 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).
                  Good Cause
                  1. Postconviction counsel's conflict of interest cannot provide good cause.
                               The district court determined that Williams demonstrated
                  good cause to excuse her late and successive petition because her
                  postconviction counsel in the first proceedings had a conflict of interest as
                  they represented her at trial and on appeal. The State argues that this
                  decision was incorrect because there was no right to counsel in the
                  postconviction proceedings and thus no right to the effective assistance of
                  counsel. We agree.
                               This court has recognized that good cause must afford a legal
                  excuse. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). In
                  order to demonstrate good cause, a petitioner must show that an
                  impediment external to the defense prevented her from complying with
                  the procedural rules. Id. A claim of ineffective assistance of counsel may
                  provide good cause but only where there is a right to counsel (statutory or
                  constitutional) and the right to the effective assistance of counsel,         see
                  Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997); McKague

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                    v. Warden, 112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996), and only
                    where the good cause claim explains the procedural defects and is not
                    itself procedurally barred, Hathaway, 119 Nev. at 252, 71 P.3d at 506; see
                    also Edwards v. Carpenter, 529 U.S. 446, 451, 453 (2000) (explaining that
                    an ineffective-assistance-of-counsel-good-cause argument must not itself
                    be procedurally defaulted); Murray v. Carrier, 477 U.S. 478, 488 (1986)
                    (explaining that a petitioner may demonstrate good cause where the
                    procedural default is the result of ineffective assistance of counsel).
                                A conflict-of-interest claim is derived from a claim of
                    ineffective assistance—it is counsel's breach of the duty of loyalty that
                    gives rise to a claim that counsel was ineffective due to a conflict of
                    interest.   See Glasser v. United States, 315 U.S. 60, 70, 75-76 (1942)
                    (framing a conflict-of-interest claim as a claim that the defendant was
                    denied the effective assistance of counsel); Holloway v. Arkansas, 435 U.S.
                    475, 482-83 (1978) (same); Cuyler v. Sullivan, 446 U.S. 335, 345, 348-50
                    (1980) (same); Strickland v. Washington, 466 U.S. 668, 688, 692 (1984)
                    (same); Mickens v. Taylor, 535 U.S. 162, 166, 175 (2002) (same); Mannon
                    v. State, 98 Nev. 224, 226, 645 P.2d 433, 434 (1982) (framing claim as "his
                    trial attorney's conflicting duties operated to deny him his sixth
                    amendment right to effective assistance of counsel"); Hayes v. State, 106
                    Nev. 543, 556, 797 P.2d 962, 970 (1990) (acknowledging that this court has
                    allowed ineffective-assistance-of-counsel claims on direct appeal when
                    they relate to a conflict of interest), overruled on other grounds by Ryan v.
                    Eighth Judicial Dist. Court, 123 Nev. 419, 168 P.3d 703 (2007). A conflict-
                    of-interest claim thus requires there be a right to counsel and a right to
                    the effective assistance of counsel. In Nevada, there is no constitutional or
                    statutory right to postconviction counsel and no right to the effective

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                    assistance of postconviction counsel in non-capital cases.    See Brown v.
                    McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 870 (2014). Because there
                    is no constitutional or statutory right to postconviction counsel and no
                    right to the effective assistance of postconviction counsel, postconviction
                    counsel's conflict of interest cannot provide good cause in Nevada. 1
                    Several federal courts have reached a similar conclusion.      See Weeks v.
                    Angelone, 176 F.3d 249, 273-74 (4th Cir. 1999); Williams v. Thaler, 602
                    F.3d 291, 308-09 (5th Cir. 2010); Bonin v. Calderon, 77 F.3d 1155, 1159-60
                    (9th Cir. 1996); Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996);
                    Nevius v. Sumner, 105 F.3d 453, 459-60 (9th Cir. 1996); Ortiz v. Stewart,
                    149 F.3d 923, 932-33 (9th Cir. 1998).
                                Further, Williams waited too long to file her second petition.
                    We find unavailing Williams' argument that any delay should be
                    measured from the time that her counsel with an alleged conflict was
                    removed and new conflict-free counsel was appointed in the federal case as
                    her conflict-of-interest-good-cause argument was reasonably available to


                           'The district court mistakenly relied upon United States v. Del
                    Muro, 87 F.3d 1078 (9th Cir. 1996) and other out-of-state cases in
                    determining that there was an inherent conflict of interest. First, conflict-
                    of-interest jurisprudence requires Williams to demonstrate an actual
                    conflict of interest adversely affected counsel's performance, and it is
                    insufficient to simply argue that there was an inherent conflict. See
                    Sullivan, 446 U.S. at 348, Strickland, 466 U.S. at 692. More importantly,
                    all but 2 of the cited cases involved situations where there was a right to
                    counsel. In the 2 cases involving postconviction proceedings, Roberts v.
                    State, 141 So. 3d 1139 (Ala. Crim. App. 2013), and People v. Edwards, 497
                    N.E.2d 1218 (Ill. App. 1986), vacated by 521 N.E.2d 939 (Ill. 1988), neither
                    of these cases is persuasive as there is no indication that these states have
                    similar rules regarding the appointment of postconviction counsel. And
                    notably, the Edwards case was vacated in its entirety.

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                 her within one year from the decision in Williams II.     Williams was on
                 notice in 2003 in the first postconviction proceedings that there was an
                 issue relating to a conflict of interest with her postconviction counsel.
                 Even discounting this early notice, Williams was also made aware of the
                 conflict-of-interest issue in 2009 when it was raised in the context of the
                 federal habeas corpus proceedings as providing good cause.    See Williams
                 v. Bodo, No. 2:04-cv-01620-KJD-LRL (D. Nev. March 5, 2009). A party
                 may not delay in presenting a good cause argument once the party is
                 aware of the factual circumstances giving rise to the claim.            See
                 Hathaway, 119 Nev. at 253, 71 P.3d at 506 (recognizing that a good cause
                 argument must be raised in a reasonable time and all claims reasonably
                 available must be raised in a timely fashion).
                             Finally, we note a practical limitation of this good cause
                 argument. Even assuming that postconviction counsel's conflict of interest
                 could provide good cause, this argument would only provide good cause for
                 raising claims of ineffective assistance of trial and appellate counsel—
                 claims allegedly not raised due to postconviction counsel's conflict of
                 interest in the first postconviction proceedings. Williams' conflict-of-
                 interest argument would not provide good cause for her claim that she was
                 not provided fair notice that she was prohibited from driving with
                 marijuana metabolite as it does not explain why this claim was not raised
                 previously. The alleged conflict of interest further does not explain why
                 Williams did not litigate her judicial expansion claim in a timely fashion
                 from the decision in Williams IL A claim that postconviction counsel was
                 ineffective will not provide good cause for a late and successive petition.
                 See McKague, 112 Nev. at 163-65, 912 P.2d at 258; Crump, 113 Nev. at
                 303, 934 P.2d at 253; Brown, 130 Nev., Adv. Op. 60, 331 P.3d at 870.

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                   2. Williams' equal protection argument does not provide good cause.
                               The district court also determined that Williams had
                   demonstrated good cause because her right to equal protection was
                   violated when this court did not follow a general practice of taking
                   corrective action sua sponte due to postconviction counsel's conflict of
                   interest. Williams asserts that unpublished decisions demonstrate "this
                   Court has ruled that the existence of such a conflict requires that a habeas
                   corpus petitioner be allowed to litigate an otherwise successive and
                   untimely petition, if he or she has been represented by counsel burdened
                   with such a conflict during litigation of an initial habeas corpus petition." 2
                   There are several problems with this good cause argument.
                               "The Equal Protection Clause of the Fourteenth Amendment
                   mandates that all persons similarly situated receive like treatment under
                   the law." Gaines v. State, 116 Nev. 359, 371, 998 P.2d 166, 173 (2000); see
                   also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
                   Williams, however, fails to make any cogent argument or demonstrate
                   that she is similarly situated to the individuals in her list of unpublished
                   decisions. Williams fails to allege that the rules regarding the

                         2 Williams'examples include: Moran v. State, Docket No. 28188
                   (Order Dismissing Appeal, March 21, 1996); Hankins v. State, Docket No.
                   20780 (Order of Remand, April 24, 1990); Nevius v. Warden, Docket Nos.
                   29027, 29028 (Order Dismissing Appeal and Denying Petition for Writ of
                   Habeas Corpus, October 9, 1996); Washington v. State, Docket No. 34873
                   (Order Vacating Judgment and Remanding, June 12, 2001); Wade v. State,
                   Docket No. 37467 (Order of Affirmance, October 11, 2001); McKenna v.
                   State, Docket No. 18074 (Order of Remand, October 29, 1987); Elizondo v.
                   State, Docket No. 41555 (Order of Reversal and Remand, September 20,
                   2004); Burnham v. State, Docket No. 57715 (Order of Reversal and
                   Remand, October 5, 2011); and Wootson v. State, Docket No. 56410 (Order
                   of Reversal and Remand, March 18, 2011).

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                 appointment of counsel were the same for her and for the individuals in
                 her sample decisions. Williams fails to argue that the factual
                 circumstances were similar—that the petitioners in the unpublished
                 decisions requested the appointment of counsel with the conflict,
                 authorized that counsel to pursue the petition, and waited years to
                 challenge the alleged conflict of interest.
                              Further, Williams' list of unpublished decisions does not
                 demonstrate that this court has a general practice of intervening sua
                 sponte when postconviction counsel has a conflict of interest or that this
                 court has determined that postconviction counsel's conflict of interest will
                 provide good cause years after the decision on the first postconviction
                 appeal. The decisions in Burnham and Wootson are distinguishable as the
                 issue in those cases was whether trial counsel had a conflict of interest in
                 representing a defendant in proceedings prior to sentencing.     Washington
                 and McKenna do not support Williams' argument regarding a sua sponte
                 practice because the petitioners in Washington and McKenna raised the
                 conflict-of-interest argument in their appeals from the denial of their first
                 petitions. The conflict-of-interest issue was raised sua sponte in Hankins
                 and Elizondo, but these cases involve pro se appellants, and Williams was
                 represented by counsel in her first postconviction appeal. Nothing in
                 Hankins and Elizondo suggests that a conflict of interest would be good
                 cause in an untimely and successive petition filed years after the decision
                 in the first postconviction appeal. The decision in Nevius does not support
                 her argument that this court has a general practice of finding a conflict of
                 interest to provide good cause because this court only stated that it was
                 arguable that the conflict of interest could provide good cause. And in
                 Moran, the issue was not raised sua sponte, and this court rejected the

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                   argument that postconviction counsel's conflict of interest could provide
                   good cause when there was a delay of more than 5 years after the decision
                   in the first postconviction appeal.
                                The decision in Wade is the only one of the sample decisions
                   that supports Williams' arguments regarding a sua sponte practice and
                   postconviction counsel's conflict of interest providing good cause.
                   However, nothing in Wade suggests that postconviction counsel's conflict
                   of interest would be good cause for a petition filed years after the decision
                   in the first postconviction appeal. Further, the decision in Wade is bereft
                   of any analysis of whether postconviction counsel's conflict of interest
                   could legally be good cause; Wade instead relies upon an ethical rule and a
                   test for waiver of a conflict of interest involving trial counsel. As discussed
                   previously, postconviction counsel's conflict of interest cannot legally
                   provide good cause in Nevada. And this court is aware of another case, in
                   addition to Williams' case, in which this court did not intervene sua sponte
                   when postconviction counsel had a similar alleged conflict of interest—
                   Clark v. State, Docket No. 58538 (Order of Affirmance, October 8, 2012).
                   See Clark v. Baker, No. 3:12-cv-00579-MMD-VPC, 2014 WL 1309344, at
                   *2-3 (D. Nev. 2014). Thus, Williams has failed to demonstrate that this
                   court has a general practice of intervening           sua sponte or finding
                   postconviction counsel's conflict of interest to be good cause for a second
                   petition filed years later.
                                More importantly, this court's published cases recognizing the
                   mandatory nature of the procedural bars and rejecting claims of
                   ineffective assistance of postconviction counsel as providing good cause
                   outweigh any practice that can be gleaned from the unpublished decisions
                   identified by Williams. This court's published authority indicates that

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                application of NRS 34.726, NRS 34.810(1)(b), and NRS 34.810(2) is
                mandatory, see State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225,
                231-32, 112 P.3d 1070, 1074-75 (2005); State v. Haberstroh, 119 Nev. 173,
                180, 69 P.3d 676, 681 (2003), and that good cause to overcome a
                procedural bar must afford a legal excuse and must be an impediment
                external to the defense, see Hathaway, 119 Nev. at 252, 71 P.3d at 506.
                This court has repeatedly rejected the argument that a claim of ineffective
                assistance of postconviction counsel in a non-capital case can provide good
                cause. McKague, 112 Nev. at 163-65, 912 P.2d at 258; Crump, 113 Nev. at
                303, 934 P.2d at 253; Brown, 331 P.3d at 870. As discussed previously, a
                conflict of interest is a claim that counsel was ineffective.
                             Finally, Williams' equal protection argument is flawed at its
                very core—equal protection does not insure against judicial error or
                guarantee uniformity of court decisions. See Beck v. Washington, 369 U.S.
                541, 554-55 (1962); see also Little v. Crawford, 449 F.3d 1075, 1082 (9th
                Cir. 2006). In Little, the Ninth Circuit rejected a claim that this court had
                failed to apply existing case law to a Nevada state prisoner, stating that
                "Little's claim, at most, amounts to an allegation that in his case Nevada
                law was misapplied or that the Nevada Supreme Court departed from its
                earlier decisions. Under clearly established Supreme Court law, such
                contention neither gives rise to an equal protection claim, nor provides a
                basis for habeas relief." Little, 449 F.3d at 1082. Williams' argument fails
                for similar reasons, and therefore, she fails to demonstrate that an equal
                protection violation provides good cause in this case. Thus, to the extent
                the district court determined that Williams' equal protection argument
                provided good cause in this case, we conclude that decision was in error.



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                  Actual Prejudice
                               In addition to demonstrating good cause, Williams must
                  demonstrate actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS
                  34.810(3). To demonstrate actual prejudice, a petitioner must
                  demonstrate error that worked to her actual and substantial
                  disadvantage. Hogan u. Warden, 109 Nev. 952, 959-60, 860 P.2d 710, 716
                  (1993). Regarding her claims of ineffective assistance of trial and
                  appellate counsel, Williams must demonstrate 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).       To
                  demonstrate prejudice for failing to raise a claim on direct appeal, a
                  petitioner must demonstrate that the omitted issue would have had a
                  reasonable probability of success on appeal.    Kirksey v. State, 112 Nev.
                  980, 998, 923 P.2d 1102, 1114 (1996). Both components of the inquiry
                  must be shown, Strickland. 466 U.S. at 697. We address the merits of
                  Williams' claims of ineffective assistance of counsel and judicial expansion
                  only in the context of determining whether she has demonstrated actual
                  prejudice.




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                  1. Trial and appellate counsel were not ineffective for failing to argue that
                     marijuana metabolite is not a prohibited substance as a matter of state
                     lam. 3
                        Williams' claim that her trial and appellate counsel were ineffective
                  for failing to argue that marijuana metabolite is not a prohibited
                  substance as a matter of state law is without merit. Williams' counsel
                  raised the underlying issue, whether marijuana metabolite is a prohibited
                  substance as a matter of state law, in the first postconviction proceedings.
                  Williams II, 120 Nev. at 475-76, 93 P.3d at 1259. In Williams II, this
                  court determined that the claim was subject to the waiver bar (NRS
                  34.810(1)(b)) and that Williams had failed to demonstrate good cause for
                  her failure to raise the claim on direct appeal.   Id. at 477-78, 93 P.3d at
                  1260-61. This court further determined that Williams did not
                  demonstrate actual prejudice because marijuana metabolite is a
                  prohibited substance under Nevada's statutory scheme and that her
                  argument failed despite any ambiguity in NRS 484.1245, a general-
                  definition statute, because the legislative history indicated that the
                  Legislature specifically intended marijuana metabolite to be included in
                  the definition of a prohibited substance. Id. at 478-81, 93 P.3d at 1261-63.
                  Under these circumstances, Williams fails to demonstrate that her trial
                  and appellate counsel were ineffective because this court has already
                  determined that the underlying claim lacked merit.



                        3 For the sake of consistency and to lessen any confusion, we have
                  cited to the versions of the statutes in effect at the time of Williams'
                  crimes. NRS 484.013 (1999 Nev. Stat., ch. 622, §21, at 3415); NRS
                  484.1245 (1999 Nev. Stat., ch. 622, §20, at 3414); NRS 484.379 (1999 Nev.
                  Stat., ch. 622, §23, at 3415-16); NRS 484.3795 (1999 Nev. Stat., ch. 622,
                  §28, at 3422).

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                2. Trial and appellate counsel were not ineffective for failing to argue that
                   Williams did not have fair notice that having marijuana metabolite in
                   her blood would subject her to criminal liability.
                            Williams argues that her trial and appellate counsel were
                ineffective for failing to argue that she did not have fair notice that having
                marijuana metabolite in her blood would subject her to criminal liability. 4
                Williams fails to demonstrate that her counsel were ineffective because
                she had fair notice at the time of her crime that driving with marijuana
                metabolite subjected her to criminal liability, and her conduct was clearly
                proscribed by NRS 484.379 and NRS 484.3795 regardless of any ambiguity
                in NRS 484.1245. See United States v. Williams, 553 U.S. 285, 304 (2008)
                (stating that "[a] conviction fails to comport with due process if the statute
                under which it is obtained fails to provide a person of ordinary intelligence
                fair notice of what is prohibited"); United States v. Lanier, 520 U.S. 259,
                266 (1997) (recognizing a statute must not be "so vague that men of
                common intelligence must necessarily guess at its meaning' and requiring
                resolution of any ambiguity in a criminal statute as to apply only to
                conduct clearly covered); State v. Hughes, 127 Nev. 626, 628, 261 P.3d
                1067, 1069 (2011) (providing that a statute is vague if it fails to provide
                fair notice of what is prohibited to a person of ordinary intelligence).
                            Williams' fair notice argument is premised upon an
                inconsistency in the definition of a prohibited substance in NRS 484.1245,
                a general statute. However, Williams' reliance upon NRS 484.1245 as the
                only statute to provide fair notice is misplaced as NRS 484.379 and NRS

                      4As  discussed previously, Williams' conflict-of-interest good cause
                argument does not provide good cause to raise the underlying fair notice
                claim independently of her claims of ineffective assistance of trial and
                appellate counsel.


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                 484.3795 provided Williams with notice that it was unlawful to drive with
                 marijuana metabolite in her blood or urine. Williams was convicted of
                 violating NRS 484.379, driving with a prohibited substance (marijuana
                 and/or marijuana metabolite) in excess of the statutory limits, and NRS
                 484.3795, causing the death of persons while driving with a prohibited
                 substance in violation of NRS 484.379. NRS 484.379(3)(h) informed
                 Williams that it was unlawful to drive with marijuana metabolite equal to
                 or greater. than 15 nanograms per milliliter in urine or 5 nanograms per
                 milliliter in blood. NRS 484.3795(1)(f) provided notice that she would be
                 guilty of a category B felony if she drove with a prohibited substance in
                 her blood or urine in an amount equal to or greater than the amount set
                 forth in NRS 484.379(3). The inclusion of marijuana metabolite in NRS
                 484.379(3) in specified amounts provided Williams, or any person of
                 ordinary intelligence, fair notice that driving with marijuana metabolite in
                 excess of the statutory amounts subjected her to criminal liability.
                             Likewise, to the extent that there is any ambiguity in the
                 general definition of a prohibited substance set forth in NRS 484.1245,
                 Williams' conduct was clearly covered under the more specific statutes-
                 NRS 484.379 and NRS 484.3795. Even assuming Williams is correct that
                 there is some inconsistency in the general definition of a prohibited
                 substance set forth in NRS 484.1245, it would be unreasonable not to read
                 inclusion of marijuana metabolite within the definition of a prohibited
                 substance when the Legislature included the words "marijuana
                 metabolite" in the list of prohibited substances in NRS 484.1245 and
                 included marijuana metabolite in NRS 484.379 and NRS 484.3795 (by
                 reference), the offense statutes. Notably, NRS 484.013, stated that the
                 general definitions, including NRS 484.1245, provided meaning for terms

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                  in the chapter "unless the context otherwise requires." The context of
                  NRS 484.379(3) would require a different definition of a prohibited
                  substance than set forth in NRS 484.1245 if the definition in NRS
                  484.1245 did not include marijuana metabolite because marijuana
                  metabolite is listed in a specified amount in NRS 484.379(3).
                              Thus, because the underlying fair notice argument lacks
                  merit, Williams fails to demonstrate that the performance of her trial
                  counsel and appellate counsel was deficient or that there was a reasonable
                  probability of a different outcome at trial or on appeal if a fair notice claim
                  had been made. Therefore, Williams fails to demonstrate actual prejudice
                  to overcome application of the procedural bars.
                  3. This court did not judicially expand the meaning of prohibited
                     substance in Williams II, depriving Williams of fair notice.
                              Williams argues that this court's decision in Williams II was a
                  judicial expansion of NRS 484.1245 depriving her of fair notice that she
                  was not permitted to drive with marijuana metabolite in her system. 5 To


                         °The federal district court has criticized this court's reliance upon
                  the legislative history in Williams II in determining that a marijuana
                  metabolite was a prohibited substance as a matter of state law because
                  this court did not include any references to specific statements by
                  legislators showing an intent to include marijuana metabolite as a
                  prohibited substance even when it was not classified in a schedule. See
                  Williams v. Bodo, No. 2:04-cv-01620-KJD-LRL, at *7 (D. Nev. September
                  29, 2010). As explained in Williams II, the legislative history shows the
                  Legislature expressly included marijuana metabolite as a prohibited
                  substance. 120 Nev. at 480, 93 P.3d at 1262. The Legislature began the
                  bill draft process with the crime of driving with a controlled substance in
                  any detectable amount and a list of controlled substances relevant to
                  license revocation. Notably, that list did not include marijuana or
                  marijuana metabolite. Id. Over the course of the session, the Legislature
                  added the definition of a prohibited substance contained in NRS 484.1245
                  and specifically added marijuana and marijuana metabolite to that list
                                                                       continued on next page...
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                     demonstrate actual prejudice for presenting this claim in an untimely and
                     successive petition, Williams must demonstrate a constitutional error that
                     worked to her actual and substantial disadvantage. 6
                                  Williams fails to demonstrate actual prejudice because her
                     judicial-expansion claim lacks merit. Judicial expansion broadens the
                     scope of a statute beyond the statutory language in a way that was
                     unforeseeable.   Rogers v. Tennessee, 532 U.S. 451, 457 (2001). "[D]ue
                     process bars courts from applying a novel construction of a criminal
                     statute to conduct that neither the statute nor any prior judicial decision
                     has fairly disclosed to be within its scope." Lanier, 520 U.S. at 266. Said
                     in another way, "[i]f a judicial construction of a criminal statute is
                     'unexpected and indefensible by reference to the law which had been


                     ...continued
                     and to NRS 484.379. Id. The Legislature further chose to set forth
                     statutory amounts of prohibited substances rather than following the
                     approach in the original bill of punishing any detectable amount. Id. This
                     is evidence of the Legislature's thoughtful decision to include marijuana
                     metabolite within the definition of a prohibited substance regardless of the
                     language referring to the schedule.

                           6 As  discussed previously, Williams' conflict-of-interest good cause
                     argument does not provide good cause for the judicial-expansion claim in a
                     petition filed years after the decision in Williams IL From the structure of
                     her petition, Williams appears to have also presented a standalone claim
                     that marijuana metabolite was not a prohibited substance as a matter of
                     state law, a repetition of the claim litigated in Williams IL Because the
                     standalone claim was determined to be procedurally barred in Williams II
                     pursuant to NRS 34.810(1)(b) (the waiver bar) and because Williams
                     presents no argument that this court erred in determining that she failed
                     to demonstrate good cause in Williams II, relitigation of the standalone
                     claim is barred by the doctrine of the law of the case. See Hall v. State, 91
                     Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975); see also Hsu v. County of
                     Clark, 123 Nev. 625, 629-32, 173 P.3d 724, 728-30 (2007).

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                expressed prior to the conduct in issue,' it must not be given retroactive
                effect." Bouie v. City of Columbia, 378 U.S. 347, 354 (1964) (quoting Hall,
                General Principles of Criminal Law 61 (2c1 ed. 1960)). In Bouie, the Court
                observed that the problem with judicial expansion and fair notice arises
                when courts, unforeseeably, broaden statutory language that is narrow
                and precise on its face. Id. at 352. Williams' judicial-expansion argument
                fails for several reasons.
                              First, Williams' judicial-expansion argument is premised upon
                NRS 484.1245 being the sole statute to provide fair notice of what is a
                prohibited substance. For the reasons discussed previously, this argument
                is unsound.
                              More importantly, Williams' judicial-expansion argument fails
                because NRS 484.1245 is not drafted narrowly and precisely. Williams'
                argument in Williams II and in this appeal is premised upon ambiguity
                and inconsistency in NRS 484.1245. Thus, it was entirely proper for this
                court in Williams II to examine the statutory scheme in NRS chapter 484,
                including NRS 484.379 and NRS 484.3795, and the legislative history to
                answer the question of whether marijuana metabolite was a prohibited
                substance as a matter of state law.
                              Finally, the plain language of NRS 484.1245 included the
                words "marijuana metabolite." It is difficult to conceive under these
                circumstances how this court expanded the scope of NRS 484.1245 in a
                novel, unforeseeable, or indefensible fashion by reading the words
                "marijuana metabolite" as being included in the definition of a prohibited
                substance when those exact words were used. Thus, Williams' fails to
                demonstrate actual prejudice to overcome the filing of a late petition.



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                Conclusion
                             Although the district court erred in determining that Williams
                had demonstrated good cause for the reasons discussed previously, the
                district court correctly determined that Williams had not demonstrated
                actual prejudice. Thus, we conclude the district court reached the correct
                decision in denying the petition as procedurally barred.        See Wyatt v.
                State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970). Accordingly, we
                             ORDER the judgment of the district court AFFIRMED.




                                                             Hardesty


                                                                                           J.
                                                             Pickering


                SAITTA, J., concurring:
                             I concur in the decision to affirm the denial of Williams'
                petition. I recognize that Williams' good cause argument lacks legal merit
                because she did not have the right to the appointment of counsel or the
                effective assistance of that counsel pursuant to our decision in Brown, 130
                Nev., Adv. Op. 60, 331 P.3d at 870. However, for the same reasons
                discussed in the dissenting opinion in Brown, see id., 331 P.3d at 875
                (Cherry and Saitta, JJ, dissenting), I believe that there should be the right
                to the effective assistance of counsel in the first postconviction
                proceedings.


                                                                                          , J.
                                                             Saitta
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                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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