                                  129 Nev., Advance Opinion 58
       IN THE SUPREME COURT OF THE STATE OF NEVADA


THE STATE OF NEVADA,                                No. 61674
Appellant,
vs.
DELBERT M. GREENE,
                                                        FILED
Respondent.                                              AUG 0 1 2013
                                                        TRACE K. LINDEMAN
                                                    CLE7XPlyikittRT
                                                    W
                                                          DEPUTY CLERK
           Appeal from a district court order granting respondent's post-
conviction petition for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; James M. Bixler, J udge.
           Reversed and remanded.

Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District
Attorney, Clark County,
for Appellant.

Delbert M. Greene, Ely,
in Proper Person. 1




BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.




       'Respondent Delbert Greene was assisted by counsel, Marc Picker,
in the proceedings below. After briefing by counsel was completed in this
appeal, we granted Picker's motion to withdraw as counsel for Greene.




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                                    OPINION

By the Court, CHERRY, J.:
                 The district court determined that respondent Delbert M.
Greene received ineffective assistance of counsel at his resentencing
hearing and granted his untimely and successive fifth post-conviction
petition for a writ of habeas corpus. The district court also directed
Greene's counsel to draft the order granting the petition but refused to
provide an explanation for its decision. We take this opportunity to
reiterate that when the district court directs a prevailing party to draft an
order resolving a post-conviction petition for a writ of habeas corpus, it
must provide sufficient direction regarding the basis for its decision to
enable the prevailing party to draft the order. Because we also conclude
that the district court erroneously determined that Greene established
good cause sufficient to excuse the procedural bars to a consideration of
his petition on the merits, we reverse the order granting his petition and
affording him a new sentencing hearing.
                                  I. Background
                 On June 7, 2002, Greene participated in the robbery of a
change attendant at a grocery store in Las Vegas, and after a three-day
jury trial, he was convicted of burglary while in the possession of a deadly
weapon (count I), conspiracy to commit robbery (count II), and robbery
with the use of a deadly weapon (count 111). 2 At the sentencing hearing,
the trial court imposed a prison term of 36-156 months for count I, a
consecutive prison term of 18-60 months for count II, and a prison term of


         2   The Honorable Valerie Adair, District Judge, presided over the
trial.



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48-180 months plus an equal and consecutive term for the deadly weapon
enhancement for count III; the court, however, erroneously ordered the
sentence for count III to run concurrently with count I but consecutively to
the sentence for count II even though the sentence for count II was
ordered to run consecutively to the sentence for count I. Additionally, the
written judgment of conviction failed to mention the sentence imposed for
the deadly weapon enhancement. We identified these errors on direct
appeal from the judgment of conviction and remanded the case to the trial
court for a new sentencing hearing.       Greene v. State, Docket No. 42110
(Order Affirming in Part and Remanding, May 18, 2004).
              On remand, the trial court imposed the prison terms for the
three counts to run consecutively and entered an amended judgment of
conviction. Greene appealed. We rejected Greene's claims and affirmed
the amended judgment of conviction.       Greene v. State, Docket No. 43628
(Order of Affirmance, August 24, 2005). Notably, neither party at the time
provided this court with the transcript of the resentencing hearing for
review.
              While Greene's appeal from the amended judgment of
conviction was pending, he filed his first, and only timely, post-conviction
petition for a writ of habeas corpus in district court. 3 Greene filed the
petition in proper person and raised several ineffective-assistance-of-
counsel claims and direct-appeal claims, including an issue that he
previously raised on direct appeal (the admission of a letter that he wrote


      3 For unknown reasons, Greene filed the same petition again three
days later. This is why, in subsequent proceedings both below and in this
court, there is reference to Greene's petitions filed on February 4, 2005,
and February 7, 2005.



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to his former codefendant), 4 but he did not raise any issues pertaining to
the resentencing hearing or amended judgment of conviction. The petition
was considered by the judge who presided over the trial. The judge
declined to appoint counsel to represent Greene or conduct an evidentiary
hearing, see NRS 34.750(1); NRS 34.770, and with very little discussion of
the issues raised, entered an order denying his petition. We affirmed the
order. Greene v. State, Docket No. 45127 (Order of Affirmance, September
16, 2005).
             Nearly three years later, Greene filed his second post-
conviction petition for a writ of habeas corpus in district court. Like the
first petition, this one was filed in proper person. This time, Greene raised
issues pertaining to his resentencing hearing. Among other things,
Greene claimed that his appointed counsel failed to appear for the
resentencing hearing and, instead, sent an associate who was not
prepared or familiar with his case. Greene also claimed that his sentence
was improperly increased by the amended judgment of conviction. To
excuse the procedural bars to the petition, Greene claimed he was
unaware that his collateral challenge to the conviction in federal court had
been resolved or that he could proceed in state court while the federal
proceeding was pending. Once again, the petition was heard by the judge
who presided over the trial, and the judge declined to appoint counsel to
represent Greene or conduct an evidentiary hearing, and denied his

      4The  direct-appeal claims were waived.     See NRS 34.810(1)(b);
Franklin v. State, 110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994)
("[C]laims that are appropriate for a direct appeal must be pursued on
direct appeal, or they will be considered waived in subsequent
proceedings."), overruled on other grounds by Thomas v. State, 115 Nev.
148, 979 P.2d 222 (1999).
petition after finding "it is time barred with no good cause shown for [the]
delay" or its successiveness. See NRS 34.726(1); NRS 34.810(1)(b), (2)-(3).
On appeal, we agreed that Greene failed to demonstrate that an
impediment external to the defense prevented him from complying with
the procedural default rules, see Hathaway v. State, 119 Nev. 248, 252, 71
P.3d 503, 506 (2003); see also Colley v. State, 105 Nev. 235, 236, 773 P.2d
1229, 1230 (1989), abrogated by statute on other grounds as recognized by
State v. Huebler, 128 Nev.         n.2, 275 P.3d 91, 95 n.2 (2012),
however, we also identified a clerical error in the amended judgment of
conviction. The amended judgment of conviction ordered "Count III TO
RUN CONSECUTIVE to Counts II and III" rather than consecutively to
counts I and II. Therefore, while we affirmed the order denying Greene's
petition, we remanded the matter to correct the clerical error as permitted
by NRS 176.565. Greene v. State, Docket No. 52584 (Order of Affirmance
and Remand to Correct Judgment of Conviction, August 25, 2009).
            Approximately one week later, the trial court entered a second
amended judgment of conviction clarifying that "COUNT 3 is to run
CONSECUTIVE to COUNTS 1 & 2, NOT as to Counts 2 & 3 as stated in
the Amended Judgment of Conviction." Sure enough, Greene filed two
more post-conviction petitions for writs of habeas corpus in the district
court raising several issues related to the entry of the second amended
judgment of conviction. Both petitions were filed in proper person and
were heard by the trial judge who again declined to appoint counsel to
represent Greene or conduct an evidentiary hearing and summarily
denied the petitions without any discussion of the claims raised or his
good cause arguments. We consolidated the cases on appeal and affirmed
the order. Greene v. State, Docket Nos. 56013/56546 (Order of Affirmance,



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                          November 8, 2010). We determined that Greene's petitions were
                          untimely, successive, and an abuse of the writ, see NRS 34.726(1); NRS
                          34.810(1)(b)(2), (2), and we expressly rejected Greene's good cause and
                          prejudice arguments. We noted that the correction of the clerical mistake
                          did not provide Greene with good cause. See Sullivan v. State, 120 Nev.
                          537, 540-41, 96 P.3d 761, 764 (2004). We concluded that (1) Greene was
                          not entitled to counsel when the error was corrected because the
                          proceeding did not implicate any substantial rights, see Mempa v. Rhay,
                          389 U.S. 128, 134 (1967); (2) the proceeding to correct the error did not
                          amount to a sentencing hearing requiring his presence and there was no
                          demonstration of prejudice, see Gallego v. State, 117 Nev. 348, 367-68, 23
                          P.3d 227, 240 (2001), abrogated on other grounds by Nunnery v. State, 127
                          Nev. , 263 P.3d 235 (2011); and (3) the second amended judgment did
                          not improperly increase his sentence. We also concluded that Greene
                          failed to demonstrate that he was denied his right to a direct appeal from
                          the second amended judgment of conviction.       See Harris v. Warden, 114
                          Nev. 956, 959, 964 P.2d 785, 787 (1998).
                                                    H. The instant petition
                                      On April 3, 2012, more than six and a half years after we
                          affirmed his amended judgment of conviction, Greene filed the instant
                          petition—his fifth post-conviction petition for a writ of habeas corpus. For
                          the first time, the petition was filed with the assistance of counsel. Like
                          the three petitions that preceded it, this petition was untimely, successive,
                          and an abuse of the writ.     See NRS 34.726(1); NRS 34.810(1)(b)(2), (2).
                          The petition, however, failed to allege good cause and prejudice to excuse
                          those procedural bars. Instead, the petition focused on the substantive
                          issue of counsel's performance at the resentencing hearing, claiming that
                          counsel "sent an associate attorney who openly admitted to having no
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                knowledge of the case and made no argument of any kind on Mr.
                GREENE's behalf against the District Court adding an additional twenty-
                eight (28) years to his sentence." The petition provided no basis for this
                claim or the characterization of trial counsel's performance: it did not
                provide a citation to the resentencing hearing transcript or include a copy
                of that transcript. Even though Greene was never represented by counsel
                in connection with his first four petitions, the new petition erroneously
                asserted that prior "counsel" failed to raise the issues set forth in the fifth
                petition. And the petition failed to acknowledge that the claim about
                counsel's performance at the resentencing hearing was raised in Greene's
                second habeas petition. Without cogent argument or citation to any legal
                authority, Greene's post-conviction counsel asserted that as a result of the
                resentencing, Greene's sentence was improperly enhanced by "two
                different offenses . . . on the basis of the same fact of the presence of a
                weapon," thus violating "the Fifth Amendment prohibition against double
                jeopardy." The gist of his argument, it seems, was that the resentencing
                changed Greene's parole eligibility dates. In its motion to dismiss the
                petition, the State argued laches and pointed out that the same issues
                were raised in Greene's second petition. In his response to the State's
                motion to dismiss, Greene extended his double-jeopardy claim to include
                issues related to the correction of the clerical error and entry of the second
                amended judgment of conviction. Greene also conceded that his claims
                were "arguably successive."
                                  HI. The hearing and first appellate issue
                            For the first time, one of Greene's habeas petitions would not
                be heard by the judge who presided over the trial. This time, the habeas
                petition was heard by the Honorable James M. Bixler, District Judge.
                When the district court held a hearing on the petition, Greene was not
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                present and his attorney appeared telephonically. After the court briefly
                summarized Greene's ineffective-assistance argument and heard a few
                introductory remarks from Greene's counsel, the court immediately
                rejected Greene's double-jeopardy claim, stating, "I don't think that's ever
                going to have any legs to it, to be honest with you." After further
                discussion, the court noted that the untimely and successive nature of
                Greene's petition was "problematic," and the good-cause argument
                articulated at the hearing by Greene's counsel—that prior counsel's
                deficient performance at the resentencing hearing was never
                "appropriately" addressed and is not "attributable" to him—was not
                sufficient. Nevertheless, the court asked Greene's counsel, "[H]ow do you
                write this up so that you can defend at the Supreme Court my decision
                that you have established good cause for the granting of the writ?"
                Counsel answered that "the spin" would be that the delay in filing the
                petition was not Greene's fault "and that he will be unduly prejudiced by
                the dismissal of this petition." The State argued that "the one thing you
                cannot put a spin on is the fact [that] in order to show good cause, you
                have to show an impediment external [to the] defense," and "there is no
                way to get around" the fact that "the one person throughout this entire
                proceeding [who] has clearly known what his sentence was, is [Greene]."
                            The district court concluded, "I am going to regret this, but I
                am granting your petition. . . . It is not [the] correct thing, but it is the
                right thing." The State asked the judge if he could "just articulate the
                grounds under which you are granting the petition." The judge refused to
                provide a reason, explaining, "I am going to wait to [see] the language in
                the order. I don't know that I am going to be able to articulate it
                sufficiently." The district court then directed Greene's counsel to draft the

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order, and stated, "[IN I agree, I will sign that order." The district court
scheduled a third sentencing hearing for Greene approximately four and a
half months later because "I have a feeling you are going to be hearing
more about this case before November."
             On appeal, the State contends that the district court erred by
directing Greene's counsel to draft the order granting the petition while
refusing to explain its ruling. The State argues that It] his was an
improper delegation of the Court's duty to articulate specific grounds for
its ruling before empowering the prevailing party to draft Findings." We
agree. As we stated in Byford v. State, 123 Nev. 67, 70, 156 P.3d 691, 693
(2007), "the district court should have . . . either drafted its own findings of
fact and conclusions of law or announced them to the parties with
sufficient specificity to provide guidance to the prevailing party in drafting
a proposed order." (Emphasis added.) Here, the district court did not
make any express findings in support of its determination and provided no
guidance for the prevailing party, and we conclude that this was improper.
          /V. The district court's order and second appellate issue
            The State contends that the district court erred by finding that
Greene demonstrated good cause and prejudice sufficient to overcome the
procedural bars to a consideration of his habeas petition on the merits.
We agree.
            To reiterate, Greene's petition is subject to several procedural
bars. Greene filed his fifth habeas petition more than six and a half years
after this court affirmed his amended judgment of conviction on direct
appeal and issued its remittitur. Thus, Greene's petition was untimely.
See NRS 34.726(1). Greene's petition was also successive because he

previously filed habeas petitions on at least four occasions, and the instant
petition seeks to relitigate claims related to his resentencing hearing that

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                were raised in his second habeas petition, which itself was untimely and
                successive. See NRS 34.810(2). The order granting Greene's fifth petition
                states that the grounds were not previously raised "due to ineffective
                assistance of prior counsel" even though Greene filed all of his prior
                petitions in proper person and Greene conceded in his response to the
                State's motion to dismiss that the claims were "arguably successive." The
                order fails to address the successive nature of Greene's petition, 5 the
                relitigation of previously raised claims, 6 or the State's argument that
                laches precluded consideration of Greene's petition on the merits, see NRS
                34.800(2).
                              Most importantly, we conclude that the district court erred by
                finding that Greene demonstrated good cause sufficient to excuse the
                procedural bars to his petition.   See State v. Huebler, 128 Nev. „
                275 P.3d 91, 95 (2012) ("We give deference to the district court's factual
                findings regarding good cause, but we will review the court's application of
                the law to those facts de novo."); see also NRS 34.810(3)(a). The order
                based its good-cause determination on several factual inaccuracies and
                representations that are not supported by or contained within the record.



                      5 The order only mentions Greene's first, timely habeas petition and
                the claims raised therein. There is no mention or reference to the three
                untimely and successive petitions denied by Judge Adair. The order does
                list four additional petitions filed in federal court, three purportedly
                dismissed for procedural reasons and one "being held in abeyance pending
                outcome of the instant Petition."

                      6 To the extent that any part of Greene's argument below could be
                construed as newly raised, he failed to demonstrate cause for the failure to
                raise the argument earlier and, therefore, we conclude that it constitutes
                an abuse of the writ. See NRS 34.810(1)(b)(2), (2).

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                For example, the order notes that Greene's fifth petition was untimely but
                determines that "Defendant has shown good cause . . . based upon the
                ineffective assistance of prior counsel to raise these issues in prior
                petitions." We noted in the paragraph above the errors contained within
                this statement. The district court also found that "several revisions to
                Defendant's Judgment of Conviction have occurred which is further good
                cause for the delay." That finding, however, does not explain Greene's
                failure to include issues related to his resentencing hearing in his first,
                timely habeas petition, or the fact that he waited another three years
                before raising those issues in his second habeas petition. To the extent
                that "several revisions" includes issues related to the entry of the second
                amended judgment of conviction, we note that we already concluded in his
                appeal from the denial of his third and fourth petitions that the correction
                of the clerical error did not provide Greene with good cause. Our decision
                is the law of the case on that point.     See Hall v. State, 91 Nev. 314, 535
                P.2d 797 (1975). Because Greene failed to demonstrate that an
                impediment external to the defense prevented him from complying with
                the procedural-default rules, the district court abused its discretion by
                considering the merits of his claims. See Hathaway v. State, 119 Nev. 248,
                252, 71 P.3d 503, 506 (2003).
                            We also conclude that the district court erred by determining
                that there was merit to Greene's ineffective-assistance claim. There is no
                indication in the record that the district court reviewed a transcript of the
                resentencing hearing, no evidentiary hearing on Greene's petition was
                conducted, therefore, no testimony from Greene or former counsel was
                heard. We also note that a transcript of the resentencing hearing was
                never provided to us for consideration. Regardless of the merits of

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                Greeile's claim, based on all of the above, we conclude that the district
                court erred by granting Greene's petition and ordering a third sentencing
                hearing. Accordingly, we reverse the order of the district court and
                remand for proceedings consistent with this opinion.




                We concur:


                                               J.




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