       IN THE SUPREME COURT OF THE STATE OF NEVADA


RODNEY LYN EMIL,                                       No. 65627
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
                                                            FILE
                                                            APR 2 2 2016
                                                          TRACE K. LNDEMAN
                                                       CLERK OF SUPREME COURT
                                                       BY
                                                             DEPUTY CLEFII;

                        ORDER OF AFFIRMANCE
            This is an appeal from a district court order denying a fourth
postconviction petition for a writ of habeas corpus in a death penalty case.
Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge.
            Appellant Rodney Lyn Emil shot and killed his stepfather on
Father's Day in 1984. A jury convicted him of first-degree murder and
sentenced him to death. This court affirmed his conviction and sentence
on direct appeal. Emil v. State, 105 Nev. 858, 784 P.2d 956 (1989). In this
appeal from the denial of his fourth postconviction petition for a writ of
habeas corpus, Emil argues that the district court erred by denying his
petition as procedurally barred without conducting an evidentiary
hearing.
            Because he filed his petition on October 7, 2013,
approximately 23 years after this court resolved his direct appeal, the
petition was untimely under NRS 34.726(1). The petition was also
successive because he had previously sought postconviction relief and
therefore was procedurally barred. NRS 34.810(1)(b)(2). To overcome the
procedural defaults, Emil had to demonstrate good cause and prejudice.
NRS 34.726(1); NRS 34.810(3).




                                                                              - (072-
                             As cause to overcome the procedural default rules, Emil
                argues that postconviction counsel who represented him in his 1992
                postconviction proceedings rendered ineffective assistance and abandoned
                him, as evidenced by this court's removal of counsel.'         Emil v. State,
                Docket No. 28463 (Order, June 24, 1997). His claim lacks merit because
                he had no right to the effective assistance of postconviction counsel. While
                it is arguable whether the petition filed in 1992 can be considered his first
                postconviction petition in light of his 1990 postconviction petition that was
                not expressly resolved by the district court, both postconviction petitions
                were filed before the effective date of the statute mandating appointment
                of counsel for a first postconviction habeas petition in a death penalty
                case. See NRS 34.820(1); 1991 Nev. Stat., ch. 44, §§ 32-33, at 92; Mazzan
                v. Warden, 112 Nev. 838, 841 n.1, 921 P.2d 920, 921 n.1 (1996). Because
                counsel was not appointed pursuant to NRS 34.820, Emil did not have a
                right to the effective assistance of postconviction counsel.   See Bejarano v.
                Warden, 112 Nev. 1466, 1470 n.1, 929 P.2d 922, 925 n.1 (1996); McKague
                v. Warden,    112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996).


                      "To the extent Emil relies on Martinez v. Ryan, 566 U.S.     , 132 S.
                Ct. 1309 (2012), and Maples v. Thomas, 565 U.S. , 132 S. Ct. 912
                (2012), as good cause to excuse the delay in raising his postconviction
                claims, his claim lacks merit. His postconviction petition was filed more
                than one year after Martinez and Maples were decided, and therefore he
                did not raise this claim within a reasonable time. See Hathaway v. State,
                119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003). Moreover, we held in
                Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 871-72 (2014),
                that Martinez does not apply to Nevada's statutory procedures. To the
                extent Emil relies on Maples for the proposition that counsel's
                abandonment may constitute good cause, we conclude that he was not
                abandoned as contemplated by Maples.



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                Accordingly, the ineffective assistance of postconviction counsel cannot
                serve as good cause to overcome the procedural bars. 2 Pellegrini v. State,
                117 Nev. 860, 887-88, 34 P.3d 519, 537-38 (2001). Therefore, the district
                court did not err by denying the petition as procedurally barred without
                conducting an evidentiary hearing.        See Nika v. State,   124 Nev. 1272,
                1300-01, 198 P.3d 839, 858 (2008) (observing that an evidentiary hearing
                is warranted only where a petitioner "asserts specific allegations that are
                not belied or repelled by the record and that, if true, would entitle him to
                relief').
                            In addition to the procedural bars in NRS 34.726 and NRS
                34.810, the district court denied the petition based on laches under NRS
                34.800. Emil argues that NRS 34.800 does not apply because the State
                failed to explain how it was prejudiced by the delay in filing the petition.
                His contention lacks merit for two reasons. First, because five years
                elapsed between the appeal of the judgment of conviction and the filing of
                the postconviction petition, a rebuttable presumption of prejudice to the
                State arose. NRS 34.800(2). Therefore, Emil, not the State, bore the
                burden of overcoming that presumption, id., and he has not done so.
                Second, even assuming that he could overcome the laches bar, his petition
                is procedurally barred under NRS 34.726 and NRS 34.810. 3


                       2To the extent Emil argues that he continued to be deprived of
                conflict-free counsel after initial counsel was removed, that circumstance
                does not constitute good cause because he still did not have the right to the
                effective assistance of postconviction counsel.

                       Emil argues that he is actually innocent of first-degree murder and
                       3
                the death penalty. Below, he asserted a claim that he is actually innocent
                of the death penalty because the jurors' "deliberations did not involve
                                                                 continued on next page. . .
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                                 Having considered Emil's arguments and concluded that no
                relief is warranted, we
                                 ORDER the judgment of the district court AFFIRMED. 4




                Parraguirre                                 Hardesty



                                                            Cherry


                                                                 Piek.e4
                Saitta                                      Pickering


                • . . continued
                substantial mitigating circumstances, and evidence of innocence, which
                trial counsel never investigated, identified or presented." We conclude
                that the district court did not err by denying this claim. See generally
                Lisle v. State, 130 Nev., Adv. Op. 39, 351 P.3d 725, 734 (2015) (observing
                that "an actual-innocence inquiry in Nevada must focus on the objective
                factors that make a defendant eligible for the death penalty," that is, the
                aggravating circumstances, and, therefore, a claim of actual innocence of
                the death penalty offered as a gateway to reach a procedurally defaulted
                claim cannot be grounded in new evidence of mitigating circumstances).
                Further, because he did not raise a claim in his postconviction petition
                that he is actually innocent of first-degree murder, we need not consider
                that claim. See Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173
                (1991), overruled on other grounds by Means v. State, 120 Nev. 1001, 103
                P.3d 25 (2004). As to Emil's contention that the district court misapplied
                the law-of-the-case doctrine in denying his petition, we conclude that no
                relief is warranted.

                         4 The
                           Honorable Mark Gibbons, Justice, voluntarily recused himself
                from participation in the decision of this matter.


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cc: Hon. Douglas W. Herndon, District Judge
     Federal Public Defender/Central Dist. of CA.
     Joel M. Mann, Chtd.
     Attorney General/Carson City
     Clark County District Attorney
     Eighth District Court Clerk




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