*1 claim that the foreclosure proceed alleged cannot based on viola- tions of NRS 107.086 and the merit. FMRs lacks ex- parties pressly agreed to the foreclosure in the event that the short did sale Therefore, take the district place. court did not abuse its dis- cretion refusing against sanctions impose SunTrust. Accord- ingly, we affirm the district court’s order.5
Saitta, C.J., Douglas, Cherry, Pickering, Hardesty, Parraguirre, JJ., concur. NEVADA, Appellant, THE STATE OF Respondent. HUEBLER,
CHARLES EDWARD
No. 50953
April
Franny Federal Public C. Teicher, Defenders, and Lori Lambrose C. Assistant Federal Public Vegas, Respondent. Las
OPINION Court, Douglas, By the J.: untimely This case arises from an for a post-conviction petition conviction, writ of habeas corpus stemming pursuant from with a child under 14 of In guilty plea, years age. lewdness his Charles that he had petition, respondent alleged good Huebler delay cause for his because the State filing petition improp- which erly exculpatory, withheld surveillance that were videotapes The district court re- guilty plea involuntary. granted rendered his Huebler, lief to and the State appeals. under required
In this we consider whether the State is appeal, (1963), material ex- Brady Maryland, 373 U.S. to disclose within its to the defense before the culpatory possession entry required of a We conclude that the State is to dis- the State guilty plea. close such evidence before When disclosure, may challenge the defendant fails to make the required succeed, the de- *4 validity guilty the of the on that basis. To plea the three viola- components fendant must demonstrate in the that the evidence at is ex- guilty plea: tion context of issue evidence, that the State withheld the and that the culpatory, materiality evidence was material. As to the in component partic- ular, we hold that the test is whether there is a reasonable proba- bility or on whether there was a dis- possibility (depending specific the covery that but for the State’s failure to disclose request) the defendant would have refused to and plead would have trial. failed gone to Because Huebler to demonstrate that he would have refused to and would have plead guilty gone to trial had the evidence been disclosed before the we reverse plea, the district court’s order.
FACTS A fellow resident of Huebler’s viewed Hue- apartment complex bler with children in the swimming complex’s believed Hue- pool, children, acting bler was with the and called inappropriately the A police. seven-year-old girl who resided at the told the complex that her police vagina they Huebler touched buttocks and while swimming. were The child victim also stated that Huebler touched her occasions while in the inappropriately multiple swimming touching and that the occurred underwater. The pool police col- lected surveillance that showed Huebler and the videotapes girl to- in the gether days. on three pool
Huebler arrested and charged was lewdness with a child Huebler, under the age of 14. Counsel was appointed represent and counsel filed a motion discovery. Counsel also asked the attorney’s district office if it would provide access to surveil- lance yet had not received a videotapes; prosecutor copy from but police told defense counsel that the videotapes would be the public sent to defender’s office when the district attorney’s of- fice received them. Soon after the for the surveillance request arrest, only one month after his Huebler entered videotapes, a guilty to lewdness with a child under the of 14. age Huebler did file a direct appeal. conviction, than years judgment
More two after Huebler, counsel, with the aid of filed a post-conviction petition for a writ of in the corpus habeas district court. In his petition, that, alleged among things, Huebler other he had good cause for delay filing his petition because State had violated that, withholding surveillance He videotapes. alleged but for evidence, the State’s failure to disclose he would have refused arid to trial. The plead proceeded opposed State the peti- tion, arguing Huebler failed to demonstrate and preju- cause dice. The evidentiary hearing district court conducted an relief, granted determining Huebler that the evidence excul- was patory, had been withheld material to Hue- bler’s defense because lack of access diminished his counsel’s “ability provide sound defense.”
On the State appeal, argues district court did not use the materiality standard in appropriate deciding Huebler’s claim good delay was sufficient to demonstrate cause for his and to granted. agree warrant the relief We and reverse.
197
DISCUSSION delay petition a good filing between cause relationship for the test a violation petition the time in which a post-conviction NRS 34.726 limits a of convic- challenges judgment habeas corpus for a writ of within a must be filed may petition be filed. Such tion or sentence or, timely if a of conviction year judgment one after of after this court judgment, year taken from the within one appeal remittitur, delay. a of cause for the showing good its absent issues 1084, State, P.2d 34.726(1); v. 114 Nev. 967 NRS Dickerson 34.726(1) direct (1998) timely that NRS refers to (holding 1132 he filed his did not a direct pursue appeal, Huebler appeal). 26, 2006, years judgment more than two after the May petition 24, Thus, 2003. Huebler’s was entered on October of conviction a barred absent untimely procedurally filed and petition delay. for the good demonstration of cause 34.726(1), NRS delay petitioner cause for under good To show delay is not the fault of things: demonstrate two must “[t]hat “unduly preju will be petitioner and that petitioner” the first re untimely. dismissed as Under if the petition dice[d]” external to must show that an impediment “a quirement, petitioner with the state complying him or her from prevented the defense 248, 252, State, v. 119 Nev. Hathaway default rules.” procedural State, 349, 503, 110 (2003) (citing 506 v. Nev. 71 P.3d Lozada 944, 353, (1994)). “An external to impediment 871 P.2d 946 ‘that the factual or showing demonstrated defense be counsel, available to or reasonably a claim was not legal basis for officials, made compliance impractica interference that some ” Carrier, 478, v. 477 U.S. 488 Murray Id. (quoting ble.’ omitted)). (citations requirement, Under the second quotations underlying in the proceedings must show that errors a petitioner dis actual and substantial petitioner’s worked to judgment 952, 959-60, 710, Warden, 860 P.2d 109 Nev. Hogan v. advantage. court’s factual find (1993). deference to the district give 716 We cause, applica we will review court’s good but ings regarding Mueller, v. 304 de novo. See Lott tion of the law to those facts 2002) findings that district court’s (9th (stating Cir. F.3d error, re of law are questions clear but facts are reviewed for of 682, 686, Warden, 121 Nev. novo); also Lader v. viewed de see reasoning for review of (2005) (using similar P.3d counsel).2 ineffective assistance of claims of 235, 236, Colley 773 P.2d recognize 2We regarding the existence of (1989), court’s determination states that district however, discretion; an abuse of good disturbed absent cause will not be good To demonstrate cause delay, for his Huebler claimed below evidence, Brady by that the State violated withholding exculpatory withholding State’s evidence caused the *6 delay, and that the of the withholding preju- by diced him making involuntary. his good- Huebler’s showing cause therefore intertwined with Brady the merits of his claim.
“ ‘Brady and its
a
progeny require
prosecutor to disclose evi-
dence favorableto the defense when that evidence is material either
”
Bennett,
589, 599,
guilt
or to
v.
punishment.’ State
Nev.
119
1,
(2003)
Warden,
48, 66,
81 P.3d
8
(quoting
v.
116 Nev.
Mazzan
25,
violation,
(2000)).
993 P.2d
36
To
a
prove Brady
the accused
(1)
must make three showings:
the evidence is favorable to the
accused, either because it
(2)
or impeaching;
evidence,
State withheld the
intentionally
either
inadvertently;
or
“
”
ensued, i.e.,
and
‘prejudice
the evidence was material.’
Id.
Mazzan,
67,
116 Nev. at
(quoting
37).
993 P.2d at When a Brady
claim is
in an untimely
raised
post-conviction petition for a writ of
habeas
corpus,
petitioner has
burden of
and
pleading
prov-
ing specific facts that demonstrate both
of the
components
good-
34.726(1).
cause showing required by NRS
Id.
components
Those
the second and third
parallel
prongs
Brady
of a
violation: estab-
lishing that the State withheld the evidence demonstrates that the
delay
defense,3
was caused
an impediment external to the
establishing that the evidence
generally
was material
demonstrates
would
petitioner
unduly
be
if the
prejudiced
petition is dis-
Therefore,
missed as untimely. Id.
Huebler must establish both the
second and third
Brady
of a
prongs
violation
order to overcome
the procedural time bar.
claim
Because a
that the State committed
a Brady violation requires consideration of both factual circum-
issues,
stances and legal
we conduct a de novo review of the dis-
Mazzan,
trict court’s decision
resolving Brady claim. Id. (citing
66,
36).
Guilty pleas Brady violations claim,
Before addressing the substance of
Brady
Huebler’s
we
must address a
may
threshold issue:
a defendant challenging statutory
under the current
mandatory,
scheme the time bar in NRS 34.726 is
(Riker),
225, 231,
1070,
discretionary.
State v. Dist. Ct.
121 Nev.
112 P.3d
Haberstroh,
(2005);
173, 180,
676,
1074
State v.
119 Nev.
P.3d
69
681
State,
(2003);
860, 885-86,
Pellegrini
519,
(2001).
v.
117 Nev.
34 P.3d
536
Brady
3Wenote that a
claim still must be raised within a reasonable time
after the withheld evidence
was disclosed to or discovered
the defense. See
State,
248,
Hathaway
(2003).
v.
199
claim?
arises be-
validity
guilty plea
Brady
of a
assert
This issue
trial,
guarantee
the due
of a fair
process
cause
evolved from
86-87,
Brady, 373 U.S. at
and therefore has been described as a
263,
Moussaoui,
(4th
2010),
285
trial
U.S. v.
591 F.3d
Cir.
right,
guilty,
but when a defendant
he waives several constitutional
pleads
trial,
a fair
guarantees, including
right
any
the due
process
Henderson,
Tollett v.
entry
errors that occurred before
469,
(1973);
Nev.
Several
challenge
validity
guilty plea.
violation
be asserted to
U.S.,
1448,
(9th
1995);
50 F.3d
1453
Cir.
White
E.g.,
v.
Sanchez
U.S.,
416,
(8th
1988);
Angliker,
v.
858 F.2d
Cir.
Miller v.
848
Marshall,
(2d
1988);
v.
Campbell
F.2d
1319-20
Cir.
(6th
1985);
Sturgeon,
F.2d
Cir.
accord State
(Wis.
1999).
Ct.
But see Matthew v. John-
App.
N.W.2d
son,
(5th
2000) (holding
In
that the Constitution does not
require
prosecution
to disclose
information before a
impeachment
is en-
tered, the
Court focused on the nature of
infor-
impeachment
Ruiz
mation and its limited value in deciding whether to plead guilty.
The Court first looked to the requirements for a knowing and vol-
“[ejvidence
5“Exculpatory
tending
evidence” is defined as
to establish a
(9th
criminal
Dictionary
2009).
defendant’s innocence.” Black’s Law
ed.
“Impeachment evidence” is defined as
used to undermine a wit
“[e]vidence
credibility.”
ness’s
Id.
recognize
piece
6We
that the same
of evidence
be characterized as both
Greene,
impeachment
evidence.
Strickler v.
527 U.S.
Cf.
(1999) (rejecting argument
282 n.21
that withheld
inculpatory
evidence was
and therefore did
fall
under
because Court’s “cases make clear that
Brady’s
that,
requirements
disclosure
extend to materials
whatever their other
characteristics, may
witness”).
impeach
be used to
Before
this distinc
Ruiz
made
types
tion
little difference because both
of evidence were treated as fa
subject
vorable to the
Brady.
defense and
to disclosure under
See United
Bagley,
States v.
473 U.S.
(explaining
impeachment
ev
idence well
as
as
evidence falls under
and that “Court has
*8
rejected any . . .
impeachment
distinction between
evidence
exculpatory
and
evidence”).
case,
purposes
For
of this
we need not address whether
leaves
Ruiz
open
possibility
types
the
that certain
impeachment
of
information must be dis
entry
guilty
(Thomas, J.,
closed before
plea,
see
accused of crimes will
plead
McMunigal,
Pleas,
Disclosure,
Convictions,
Guilty
Brady
and Wrongful
57
L.
(discussing
Case W. Res.
Rev. 651
reasons that innocent
might
defendant
plead guilty
how
disclosure in the
context
reduce
guilty-plea
helps
pleas).
risk of such
The distinction
between
exculpatory
impeachment
information in this respect
recognized
in the
Court’s focus on the
Ruiz
implicitly
disclosure
case,
in the
in that
requirement
plea agreement
which
that
provided
the prosecution
“any
would disclose
establishing
information
the
factual
innocence
the
defendant.”
“high
subjective
that involves both
matter,
affirmatively
a defendant must
assert
nent. As
threshold
to trial.
guilty
going
that he would have
not
and insisted on
pleaded
Hill,
claim
at 60
ineffective-assistance
be
(rejecting
See
U.S.
that, had
allege
petition
in his habeas
petitioner
cause
“did not
date,
eligibility
he
correctly
parole
informed him about his
counsel
trial”).
guilty
going
have
not
and insisted on
pleaded
would
validity
But the
and reasonableness
subjective
That is a
assertion.8
summarily
the State
petition
asserts that
failure of
8Huebler’s
“[b]ut
evidence,
pled guilty
pro
have
turn over this
would not
[he]
determine whether this assertion
ceeded to trial.” We have not been asked to
evidentiary hearing.
Hargrove v.
warrant an
See
as sufficient to
(1984).
Cases from other jurisdictions guidance useful eval- provide for that, uating whether there is a probability/possibility reasonable but evidence, for the failure to disclose the exculpatory defendant would have refused to and plead guilty would have insisted on trial. going to In the particular, Wisconsin Court of Appeals, which the adopted materiality has same for inquiry claims context, based on withheld in exculpatory evidence the guilty-plea has the developed following list of factors to consider in applying materiality the test:
(1) the relative strength and weakness of the State’s case and case; (2) the defendant’s the persuasiveness of the withheld evidence; reasons, (3) the if any, by the defendant expressed choosing guilty; (4) to plead the benefits obtained the defendant in exchange for the and the plea; thoroughness of the plea colloquy. Sturgeon, (Wis. 1999).9
State v. 605 N.W.2d Ct. App. considerations, We agree these are relevant but we also em- an phasize this is not exhaustive list and that particular “[t]he case other relevant present considerations.” Id. With these mind, in considerations we turn to the district in court’s decision this case. held, Sturgeon, Supreme light 9Since the Wisconsin Court has in of the Ruiz, Supreme process require Court’s decision that “due does the not dis exculpatory impeachment closure of material information before a defendant Harris, bargain.” (Wis. 2004). enters into a State v. N.W.2d Sturgeon
But the court declined an invitation to overrule deter has not process mined requires purely exculpatory “whether due the disclosure of in prior plea bargain.” formation ato Id. at 750 n.15. ruling district court’s in this case The that the State withheld exculpatory The district court concluded the evidence was mate (the surveillance and that tapes) “ability affected trial counsel’s adversely rial because its absence On the State has focused on appeal, a sound defense.”10 provide of the court’s decision. We do so materiality component the district that the evidence was not material.11 as well and conclude the conclusion that Huebler failed to support The relevant factors a reasonable that he would have refused possibility demonstrate gone tapes and would have to trial if surveillance plead entry delivered to counsel before plea. had been granted suggests that the district court also relief based on 10Huebler recording alleged police an of his inter State’s failure to disclose audio-video this The district court’s order does not mention view before alleged recording, we not failure to disclose this are convinced recording ground the district court’s decision provides an alternative to affirm therefore, First, interview, and participated Huebler in the for three reasons. any Brady claims related to the interview or ineffective-assistance-of-counsel timely recording reasonably petition. in a were available to be raised and Second, therefore, had no vi exculpatory, and Huebler the interview was not alleged good-cause allegation on the State’s failure claim or based able recording any recording. finally, assuming had ex And even to disclose value, it was material. culpatory Huebler failed to demonstrate materiality compo 11Although appeal primarily on the the State’s focuses decision, regarding are in order court’s a few observations nent of district components of Huebler’s the district court’s decision on other two withheld evidence. claim: that the State it because court determined that the evidence district entirely tapes tend charged.” It clear that to show the crime “fails that Huebler because the victim indicated to establish Huebler’s innocence what vagina tapes and the do not show her underwater touched buttocks description of the questions the district court’s occurred underwater. The State *12 argument is not that the evidence exculpatory in the context of its evidence as argue exculpatory and therefore that the evidence is not material but does not challenged the dis- duty the State has not disclose it. Because there was no to pre- exculpatory, question that is not evidence is trict decision that the court’s and we do not answer it. sented here withheld that the evidence had been court also determined The district that it considered from the district court’s order the State. It is not clear through diligent videotapes have been uncovered whether the surveillance could 479, 495, P.2d 960 investigation by the defense. See Steese v. 321, (1998) (“Brady require the State to disclose 331 does not sources, including diligent in from other which is available to the defendant defense.”). support in the record to vestigation by the There are some facts evidentiary hearing, trial counsel ac Huebler’s a conclusion. At the such of the surveillance video knowledged that she was informed of the existence Also, report, Huebler’s guilty plea. police which tapes prior to Huebler’s police the name of the de acknowledged possession, in her stated counsel relating videotapes. of the to the collection questions to tective contact challenge decision that the district court’s Again, the State does not because withheld, resolve this issue. we need not the evidence was 206
First, there
guilt
was substantial evidence of Huebler’s
given
victim’s statements and Huebler’s statements regarding touching
the victim and
molestation
past
allegations involving young girls.
Second, the withheld evidence is not particularly persuasive; the
underwater,
surveillance tapes
any
did not record
events
and there-
fore,
Thus,
do not refute the victim’s claims.
as noted in the mar-
above,
gin
it is questionable whether the
were
tapes
at
Third,
all.
testimony
presented
evidentiary
at the
hearing
demonstrated that Huebler insisted on
entering guilty
Trial
plea.
testimony
counsel’s
indicated that she told
they
Huebler that
“needed to look at the discovery” before he pleaded guilty and
why they
she told him
needed to do that but that he insisted on
Fourth,
moving forward
guilty
with the
plea.12
Huebler received a
benefit from entry
guilty
of the
as the
plea
charges were reduced
any
and
investigation into
additional
potential
charges ended. Fi-
nally, Huebler indicated by signing the guilty plea agreement that
he entered the plea voluntarily and knowingly. Based on these
factors, it is clear that pre-plea disclosure of the surveillance tapes
would not have caused him to refuse to plead guilty and instead in-
sist on going to trial. Because Huebler fails to demonstrate mate-
fails,
law,
riality, he
as a matter of
to demonstrate that any errors
in the disclosure of the tapes prejudiced him. The petition therefore
procedurally
barred pursuant
34.726(1).
to NRS
Accordingly,
we
reverse
district
order.13
court’s
Pickering, Hardesty,
and
JJ.,
Parraguirre,
Shearing,
J.,
Sr.
concur.
12Wenote
there was little time
requested
for counsel to obtain the
video
tapes.
charging
alleged
document
that the offense occurred on or between
,
July 27 and
2003.
preliminary
The waiver of
ap
examination was filed
later,
proximately
August
three weeks
arraigned
on
2003. Huebler was
in
later,
guilty
days
district court and entered
August
his
ten
2003.
Thus, just
than
elapsed
more
four weeks
between
last date on which the of
fense occurred and
of the
suggests
13Huebler
that the district court’s
can
decision
be affirmed based on
a meritorious ineffective-assistance claim—that trial counsel was ineffective for
failing
investigate
copy
to
tapes.
disagree
obtain a
of the surveillance
We
First,
for two
timely
reasons.
this claim could have
petition
been raised in a
Second,
delay.
explain
assuming
Huebler failed to
his
even
that the claim
reasonably
was not
timely petition,
available to be
raised
Huebler cannot
instance,
prejudice.
demonstrate
inquiry
In this
is the same as the materi
ality prong
claim: whether
pleaded
Huebler would not have
Lockhart,
going
and would have insisted on
trial.
Hill v.
U.S.
(1985);
Frye,
see also Missouri v.
(explaining
S. Ct.
applies
that Hill standard
when
complains
“a defendant
that ineffective assis
trial”).
tance led him to accept plea
opposed
proceeding
offer as
ex As
plained
opinion,
in this
showing.
Huebler failed to make that
For these rea
sons, Huebler’s
procedurally
ineffective-assistance claim is
barred under NRS
34.726.
*13
J.,
Gibbons, J.,
Cherry,
with
agrees, dissenting:
whom
held
district court
Charles Huebler had
respondent
demonstrated cause and
prejudice
untimely filing
to excuse
his
for a writ
post-conviction petition
of habeas
based on a
corpus
Brady Maryland,
(1963),
violation of
-The is whether the evidence at issue is point exculpa- tory. suggests margin The court in the of its decision that the sur- may veillance not be because the victim de- videotapes scribed the lewd as underwater and the occurring videotapes acts what I agree do not occurred underwater. cannot this depict view, my are In suggestion videotapes exculpatory. they tend to establish Huebler’s innocence because videotapes an adult and child in a appropriate show interactions between any individ- swimming and show no conduct or reactions pool suggest any ual’s that would there had been lewd or lascivious part involving acts Huebler and the victim. the evi-
The next consideration is whether the State withheld decision, that suggests, again margin dence. The court in the of its ev- in the a conclusion that the support certain facts record would through diligent the defense idence could have been uncovered defense counsel have been able to contact investigation. While (the in- the videotapes police report law enforcement to obtain cluded the name of the detective who could be contacted with *14 duty related to the collection of the the questions videotapes), under is the and defense counsel had prosecutor’s, requested prosecutor the and been told that the would videotapes provide (albeit at some later time after unspecified them to defense counsel State, v. had been to the Jimenez they provided prosecutor). Cf. 610, 620, (1996) (“[Ejven the 918 P.2d if de- without the prosecutor’s knowledge, tectives withheld their reports and attorney charged knowledge ‘the state is with constructive law agents, of evidence withheld other state such as possession State, Gorham v. 2d (quoting enforcement officers.’” So. see also Allen (Fla. 1992))); 854 So. 2d (Fla. 2003) (stating duty defendant’s to exercise “[t]he reviewing in material after the diligence applies only due the State discloses it” therefore State obtained the re- “[o]nce analysis, sults of the hair it was to disclose them to the required defendant”).
The final is whether the evidence material. consideration On the this it is clear that district court did not the correct point apply materiality, instead that the focusing impact test for on video- had tapes’ “ability absence on defense counsel’s provide circumstances, sound Under the I would remand for the defense.” my district court to the correct test in the first instance. In apply view, a remand appropriate many because of relevant factors credibility involve factual and determinations that should be made by the district court. sum,
In while I applaud recognition court’s State has duty a constitutional to disclose material information within before with a de- possession entering plea agreement its fendant, agree I cannot with its of the law to this case. application Rather, I with the agree district court that the evidence at issue is and was withheld the State and would remand for apply materiality. district court to correct test for
I must also comment on footnote 13 and the discussion preced- ing footnote 12 in the I have reviewed the tran- majority opinion. evidentiary hearing of the in the court below and the testi- script mony at the and it provided hearing factually demonstrates both legally why Huebler should have been allowed to withdraw his and that the guilty plea ruling. district court was correct in its Trial counsel had defended clients with charged misdemeanors weeks, only began two and then representing charged clients year felonies. She had less than one of when she experience Huebler. This case was the first time counsel had represented rep- resented a defendant charged with a sexual offense and the first time one of her clients faced a life sentence. The record possible suicide, further reveals that Huebler had attempted on suicide watch, incredibly and was Huebler waived a depressed. prelimi- lewdness, nary hearing to to one count of and the second plead discovery had but requested count would be dismissed. Counsel recording did not receive either the video surveillance or video of existed, interrogation. Huebler’s Counsel knew these videos but had not received them. evidentiary at the that if she had re- hearing
Counsel testified videos, entering ceived these she could have Huebler from stopped enlightening Even more is counsel’s revelation plea. profound that after reviewed the she would have thrown finally tapes, she herself into traffic to Huebler’s prevent matter, Looking totality at the of circumstances in this contested I remand apply would this case back to district court to cor- whether Hue- materiality hearings rect test for for further can, fact, bler show so that his ineffective assistance prejudice In Court’s light Supreme claim is not barred. procedurally right recent landmark decision emphasizing importance *15 during bargaining, to effective assistance of counsel see plea Lafler (2012), it Cooper, imperative 132 S. Ct. a finding instant case be remanded to the trial court order that counsel, en- be made as to whether trial who allowed to be ineffective. discovery, tered without the benefit of crucial SCHETTLER; SCHETTLER, T. T. VINCENT VINCENT TRUST, of VINCENT T. SCHETTLER LIVING Trustee CORPORATION, v. RALRON CAPITAL Appellants, Respondent. Corporation, Nevada
No. 56508
3,May