                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                WILLIE RAY LEWIS,                                      No. 66985
                Appellant,
                vs.
                ROBERT LEGRAND, WARDEN,
                                                                               FILED
                Respondent.                                                    FEB 1 0 2016
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                                       ORDER OF AFFIRMANCE
                            This is an appeal from an order of the district court denying
                appellant's postconviction petition for a writ of habeas corpus. Eighth
                Judicial District Court, Clark County; Michelle Leavitt, Judge.
                            Appellant Willie Ray Lewis was convicted in 2006 of 41 counts
                of sexual assault with a minor under 16 years of age, 3 counts of lewdness
                with a minor under 16 years of age, and 1 count of attempted sexual
                assault with a minor under 16 years of age. Following direct appeal, this
                court reversed 36 counts of the sexual assault conviction for insufficient
                evidence and affirmed the remaining convictions.     Lewis v. State, Docket

                No. 47630 (Order Affirming in Part, Reversing in Part and Remanding,
                August 7, 2007). Remittitur issued on September 4, 2007.
                            Lewis filed a timely pro se petition for a writ of habeas corpus
                on October 16, 2007. The district court denied his petition without
                conducting an evidentiary hearing. On appeal this court affirmed in part
                and reversed in part, holding that the district court erred in failing to
                conduct an evidentiary hearing on Lewis's allegations that trial counsel
                failed to interview and investigate certain witnesses.         Lewis v. State,

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

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                Remanding, June 18, 2009). This court remanded to the district court for
                an evidentiary hearing limited to how counsel prepared Mekedes
                Fransiscos, considering that her testimony at trial did not support
                counsel's opening argument, and Lewis's allegations that counsel was
                ineffective for failing to interview and present testimony from Pamela
                McCoy, Mack Sims, Jr., and Charlie Scott. Id. at 7-9.
                            The district court held an evidentiary hearing in 2009 at
                which Lewis appeared pro se and questioned his trial counsel on her
                investigation as it pertained to the relevant potential witnesses. Lewis
                moved for the appointment of counsel, and the district court held a
                hearing and denied the motion. During the evidentiary hearing, the
                district court explained that appointed counsel was not necessary because
                the limited purpose of the remand meant that the hearing would be
                relatively simple. The district court stated that it would appoint counsel if
                it became necessary and later noted that Lewis was "doing fine" in
                pursuing his questions. The district court found that counsel's
                performance was not deficient and that Lewis had not shown prejudice
                and denied the petition. This court affirmed the district court's order.
                Lewis v. State, Docket No. 55305 (Order of Affirmance, June 9, 2010).
                            On June 29,2010, Lewis, acting pro se, filed a second state
                postconviction petition. The district court denied this petition, finding
                that Lewis had not demonstrated good cause to overcome the procedural
                bars and that the law-of-the-case doctrine prevented Lewis from
                relitigating matters previously decided. This court affirmed the district
                court's order.   Lewis v. State, Docket No. 56652 (Order of Affirmance,
                March 17, 2011).



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                               On May 12, 2011, Lewis filed a pro se petition for a writ of
                  habeas corpus in federal district court, and the federal public defender's
                  office was appointed to represent him. The federal district court granted
                  Lewis a stay to exhaust his remaining state claims on June 2, 2014.
                               On July 17, 2014, Lewis, represented by counsel, filed the
                  instant petition, his third state postconviction petition for a writ of habeas
                  corpus. Lewis argued that his trial counsel provided ineffective assistance
                  of counsel for failing to interview, prior to trial, the victims and several
                  potential witnesses that he identified to counsel. The district court denied
                  his claim as time-barred and successive and found that Lewis had not
                  shown good cause or prejudice to excuse the procedural bars.
                               Lewis filed the instant petition more than six years after
                  issuance of remittitur on his direct appeal. Thus, his petition was
                  untimely filed.    See NRS 34.726(1). Lewis's claim that counsel was

                  ineffective for failing to investigate and interview the potential witnesses
                  that he identified to counsel was successive because he made this claim in
                  his first petition for habeas relief. See NRS 34.810(2). Lewis's claim that
                  counsel was ineffective for failing to interview the victims was an abuse of
                  the writ because it was new and different from the claims raised in his
                  first habeas petition.   See NRS 34.810(1)(b)(2); NRS 34.810(2). Lewis's

                  petition was procedurally barred absent a demonstration of good cause
                  and actual prejudice.       See NRS 34.726(1); NRS 34.810(1)(b); NRS

                  34.810(3).
                               Lewis argues on appeal that the district court's denial of his
                  motions to appoint counsel in the first postconviction proceeding
                  constitutes good cause to excuse the procedural bar because the district
                  court deprived him of a meaningful opportunity to participate in the 2009

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                    evidentiary hearing. Lewis concedes that he had no statutory entitlement
                    to appointed counsel and does not argue that the district court erred in
                    applying NRS 34.750(1).
                                Good cause requires the petitioner to demonstrate that the
                    delay was not his fault and that dismissal of the petition will unduly
                    prejudice him. NRS 34.726(1). A petitioner establishes good cause by
                    showing that an impediment external to the defense prevented him from
                    complying with procedural default rules.     Hathaway v. State, 119 Nev.
                    248, 252, 71 P.3d 503, 506 (2003).
                                Lewis cannot assert an external impediment to compliance
                    when he timely argued in his first petition that counsel failed to properly
                    investigate and interview witnesses and has not identified any
                    impediment preventing his arguing then that counsel also failed to
                    interview the victims. The transcript shows that Lewis was able to
                    question his former counsel on the limited issues of the evidentiary
                    hearing. Lewis's claim that he would have been able to more effectively
                    cross-examine his former counsel during the evidentiary hearing had he
                    known that he could have subpoenaed her notes does not constitute good
                    cause.   See Hood v. State, 111 Nev. 335, 338, 890 P.2d 797, 798 (1995)
                    ("Counsel's failure to send appellant his files did not prevent appellant
                    from filing a timely petition, and thus did not constitute good cause for
                    appellant's procedural default."). That his claims might have been
                    litigated more effectively by appointed counsel does not constitute good
                    cause, as the lack of access to trained legal expertise is not an impediment
                    external to the defense and does not constitute good cause. See Phelps v.
                    Dir., Nev. Dep't. of Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988)
                    (holding that a petitioner's limited intelligence and poor legal assistance

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                        from inmate law clerks did not establish good cause), superseded by statute
                        on other grounds as stated in State v. Haberstroh, 119 Nev. 173, 69 P.3d
                        676 (2003).
                                      Even if Lewis had demonstrated good cause, Lewis must show
                        actual prejudice as well.    See NRS 34.726(1); NRS 34.810(1)(b); NRS
                        34.810(3). Actual prejudice requires a petitioner to show error that caused
                        him actual and substantial disadvantage.       Hogan v. Warden, 109 Nev.
                        952, 960, 860 P.2d 710, 716 (1993). Lewis argues that he suffered
                        prejudice when counsel's failure to properly investigate prevented his
                        presenting beneficial witnesses. We address the merits of Lewis's claim of
                        ineffective assistance of counsel only to review whether he has
                        demonstrated actual prejudice. To establish ineffective assistance of
                        counsel, Lewis must show that counsel's performance was deficient in that
                        it fell below an objective standard of reasonableness, and resulting
                        prejudice such that there is a reasonable probability that, but for counsel's
                        errors, the outcome of the proceedings would have been different.
                        Strickland, 466 U.S. at 687-88; Warden v. Lyons, 100 Nev. 430, 432-33,
                        683 P.2d 504, 505 (1984) (adopting the test in Strickland). Both deficiency
                        and prejudice must be shown.     Strickland. 466 U.S. at 697. An attorney
                        must reasonably investigate in preparing for trial or reasonably decide not
                        to. Strickland, 466 U.S. at 691; Kirksey v. State, 112 Nev. 980, 992, 923
                        P.2d 1102, 1110 (1996). Based on Lewis's proffered description of the
                        anticipated testimony of the relevant potential witnesses, we conclude
                        that he has failed to show that the outcome would have been different had
                        they been presented to testify: the district court stated that it would not
                        have admitted testimony about the minor victims propensity to lie on
                        unrelated occasions, and counsel explained that she would not have

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                   pursued a character defense as a strategic decision. Lewis failed to
                   identify what impeachment interviewing the victims would yield such that
                   it would have rendered a different outcome.       See Molina v. State, 120 Nev.
                   185, 192, 87 P.3d 533, 538 (2004) (holding that appellant failed to show
                   prejudice under Strickland where he failed to show what evidence a more
                   thorough investigation would have yielded). The bare allegation that the
                   interview would result in their impeachment is insufficient. See Hargrove
                   v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984). The record shows
                   that the purported "recantation tape" was indecipherable, and, in failing
                   to identify its contents, Lewis has failed to show how it could have led to a
                   reasonable probability of a different outcome. We conclude that Lewis has
                   failed to show either good cause or actual prejudice and thus that the
                   district court did not err in denying Lewis's third state petition for habeas
                   relief as procedurally barred. Accordingly, we
                                  ORDER the judgment of the district court AFFIRMED.



                                                                             J.
                                              Parraguirre

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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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