By the Court, DOUGLAS, J.:
This case arises from an untimely post-conviction petition for a writ of habeas corpus stemming from a conviction, pursuant to a guilty plea, of lewdness with a child under 14 years of age. In his petition, respondent Charles Huebler alleged that he had good cause for his delay in filing the petition because the State improperly withheld surveillance videotapes that were exculpatory, which rendered his guilty plea involuntary. The district court granted relief to Huebler, and the State appeals.
In this appeal, we consider whether the State is required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to disclose material exculpatory evidence within its possession to the defense before the entry of a guilty plea. We conclude that the State is required to disclose such evidence before entry of a guilty plea. When the State fails to make the required disclosure, the defendant may challenge the validity of the guilty plea on that basis. To succeed, the defendant must demonstrate the
A fellow resident of Huebler's apartment complex viewed Huebler swimming with children in the complex's pool, believed Huebler was acting inappropriately with the children, and called the police. A seven-year-old girl who resided at the complex told the police that Huebler touched her buttocks and vagina while they were swimming. The child victim also stated that Huebler touched her inappropriately on multiple occasions while in the swimming pool and that the touching occurred underwater. The police collected surveillance videotapes that showed Huebler and the girl together in the pool on three days.
Huebler was arrested and charged with lewdness with a child under the age of 14. Counsel was appointed to represent Huebler, and counsel filed a motion for discovery. Counsel also asked the district attorney's office if it would provide access to the surveillance videotapes; the prosecutor had not yet received a copy from the police but told defense counsel that the videotapes would be sent to the public defender's office when the district attorney's office received them. Soon after the request for the surveillance videotapes, and only one month after his arrest, Huebler entered a guilty plea to lewdness with a child under the age of 14. Huebler did not file a direct appeal.
More than two years after entry of the judgment of conviction, Huebler, with the aid of counsel, filed a post-conviction petition for a writ of habeas corpus in the district court. In his petition, Huebler alleged that, among other things, he had good cause for the delay in filing his petition because the State had violated Brady by withholding the surveillance videotapes. He alleged that, but for the State's failure to disclose the evidence, he would have refused to plead guilty and proceeded to trial. The State opposed the petition, arguing that Huebler failed to demonstrate cause and prejudice. The district court conducted an evidentiary hearing and granted Huebler relief, determining that the evidence was exculpatory, had been withheld by the State, and was material to Huebler's defense because the lack of access diminished his counsel's "ability to provide a sound defense."
On appeal, the State argues that the district court did not use the appropriate materiality standard in deciding that Huebler's Brady claim was sufficient to demonstrate good cause for his delay and to warrant the relief granted. We agree and reverse.
NRS 34.726 limits the time in which a post-conviction petition for a writ of habeas corpus that challenges a judgment of conviction or sentence may be filed. Such a petition must be filed within one year after entry of the judgment of conviction or, if a timely appeal is taken from the judgment, within one year after this court issues its remittitur, absent a showing of good cause for the delay. NRS 34.726(1); Dickerson v. State, 114 Nev. 1084, 967 P.2d 1132 (1998) (holding that NRS 34.726(1) refers to timely direct appeal). Huebler did not pursue a direct appeal, and he filed his petition on May 26, 2006, more than two years after the judgment of conviction was entered on October 24, 2003. Thus, Huebler's petition was untimely filed and procedurally barred absent a demonstration of good cause for the delay.
To show good cause for delay under NRS 34.726(1), a petitioner must demonstrate
To demonstrate good cause for his delay, Huebler claimed below that the State violated Brady by withholding exculpatory evidence, that the State's withholding of the exculpatory evidence caused the delay, and that the withholding of the exculpatory evidence prejudiced him by making his guilty plea involuntary. Huebler's good-cause showing therefore is intertwined with the merits of his Brady claim.
"`Brady and its progeny require a prosecutor to disclose evidence favorable to the defense when that evidence is material either to guilt or to punishment.'" State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003) (quoting Mazzan v. Warden, 116 Nev. 48, 66, 993 P.2d 25, 36 (2000)). To prove a Brady violation, the accused must make three showings: (1) the evidence is favorable to the accused, either because it is exculpatory or impeaching; (2) the State withheld the evidence, either intentionally or inadvertently; and (3) "`prejudice ensued, i.e., the evidence was material.'" Id. (quoting Mazzan, 116 Nev. at 67, 993 P.2d at 37). When a Brady claim is raised in an untimely post-conviction petition for a writ of habeas corpus, the petitioner has the burden of pleading and proving specific facts that demonstrate both components of the good-cause showing required by NRS 34.726(1). Id. Those components parallel the second and third prongs of a Brady violation: establishing that the State withheld the evidence demonstrates that the delay was caused by an impediment external to the defense,
Before addressing the substance of Huebler's Brady claim, we must address a threshold issue: may a defendant challenging the validity of a guilty plea assert a Brady claim? This issue arises because Brady evolved from the due-process guarantee of a fair trial, Brady, 373 U.S. at 86-87, 83 S.Ct. 1194, and therefore has been described as a trial right, U.S. v. Moussaoui, 591 F.3d 263, 285 (4th Cir.2010), but when a defendant pleads guilty, he waives several constitutional guarantees, including the due-process right to a fair trial, and any errors that occurred before entry of the plea. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Webb v. State, 91 Nev. 469, 538 P.2d 164 (1975). We have never addressed in a published opinion whether a Brady claim can survive the entry of a guilty plea.
Several federal circuit courts of appeals have held that a Brady violation may be asserted to challenge the validity of a guilty plea. E.g., Sanchez v. U.S., 50 F.3d 1448, 1453 (9th Cir.1995); White v. U.S., 858 F.2d 416, 422 (8th Cir.1988); Miller v. Angliker, 848 F.2d 1312, 1319-20 (2d Cir.1988); Campbell v. Marshall 769 F.2d 314, 321 (6th Cir. 1985); accord State v. Sturgeon, 231 Wis.2d 487, 605 N.W.2d 589, 596 (Wis.Ct.App.1999). But see Matthew v. Johnson, 201 F.3d 353 (5th Cir.2000) (holding that failure to disclose exculpatory evidence before entry of guilty plea does not render plea involuntary or constitute Brady violation). The Ninth Circuit, for example, has reasoned that "`a defendant's decision whether or not to plead guilty is often heavily influenced by his appraisal of the prosecution's case'" and a waiver of the right to trial "cannot be deemed `intelligent and voluntary' if `entered without knowledge of material information withheld by the prosecution.'" Sanchez, 50 F.3d at 1453 (quoting Miller, 848 F.2d at 1320). A contrary decision, according to the Ninth Circuit, could tempt prosecutors "to deliberately withhold exculpatory information as part of an attempt to elicit guilty pleas." Id.
The validity of those decisions allowing a challenge to a guilty plea based on a Brady violation have been called into question following the United States Supreme Court's decision in United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002)—the Court's only decision to date that has addressed Brady in the guilty-plea context. See U.S. v. Danzi, 726 F.Supp.2d 120, 127 (D.Conn.2010) (discussing government challenge to circuit precedent based on Ruiz). In that case, the Supreme Court held that the Constitution does not require the prosecution to disclose impeachment information related to informants or other witnesses before entering a plea agreement with a defendant. Ruiz, 536 U.S. at 625, 122 S.Ct. 2450. The Ruiz Court did not address the obligation to disclose exculpatory information; as a result, courts have split as to whether the Court's decision also encompasses exculpatory information.
In holding that the Constitution does not require the prosecution to disclose impeachment information before a guilty plea is entered, the Ruiz Court focused on the nature of impeachment information and its limited value in deciding whether to plead guilty. The Court first looked to the requirements for a knowing and voluntary plea. The Court explained that "[i]t is particularly difficult to characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant" because the value of impeachment information "will depend upon the defendant's own independent knowledge of the prosecution's potential case—a matter that the Constitution does not require prosecutors to disclose." Ruiz, 536 U.S. at 630, 122 S.Ct. 2450. Because of the limited value of impeachment evidence, the Court was reluctant to distinguish it as being more important than other information of which a defendant may be ignorant but still enter a knowing and voluntary plea. Id. at 630-31, 122 S.Ct. 2450.
The Ruiz Court then turned to the due-process considerations that led to its decision in Brady, weighing the nature of the private interest at stake, the value of the additional safeguard, and any adverse impact that the additional safeguard would have on the government's interests. Id. at 631. Specifically, the Court repeated that the nature of impeachment information limited the added value of a right to that information before pleading guilty. And the Court rejected the idea that the additional right would have added value in reducing the chance that innocent individuals would plead guilty, in part because the plea agreement in that case stated that the prosecution would "provide `any information establishing the factual innocence of the defendant.'" Id. Against the limited private interest and added value, the Court determined that an obligation to provide impeachment information before entry of a guilty plea "could seriously interfere with the Government's interest in securing those guilty pleas that are factually justified, desired by defendants, and help to secure the efficient administration of justice." Id. Given these considerations, the Court held that "the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant." Id. at 633, 122 S.Ct. 2450.
In our opinion, the considerations that led to the decision in Ruiz do not lead to the same conclusion when it comes to material exculpatory information. While the value of
It is not every day that an innocent person accused of a crime pleads guilty, but a right to exculpatory information before entering a guilty plea diminishes the possibility that innocent persons accused of crimes will plead guilty. See Kevin C. McMunigal, Guilty Pleas, Brady Disclosure, and Wrongful Convictions, 57 Case W. Res. L.Rev. 651 (2007) (discussing reasons that innocent defendant might plead guilty and how Brady disclosure in the guilty-plea context helps reduce risk of such pleas). The distinction between exculpatory and impeachment information in this respect is implicitly recognized in the Ruiz Court's focus on the disclosure requirement in the plea agreement in that case, which provided that the prosecution would disclose "any information establishing the factual innocence of the defendant." 536 U.S. at 631, 122 S.Ct. 2450. Unlike in Ruiz, it is information that could establish the factual innocence of the defendant—exculpatory information—that is at issue. In turn, the adverse impact on the government of an obligation to provide exculpatory information is not as significant as the impact of an obligation to provide impeachment information. And importantly, the added safeguard comports with the prosecution's "`special role . . . in the search for truth.'" Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Jimenez v. State, 112 Nev. 610, 618, 918 P.2d 687, 692 (1996) ("The prosecutor represents the state and has a duty to see that justice is done in a criminal prosecution."); ABA Standards for Criminal Justice, Prosecution Function Standard 3-1.2(c) (3d ed. 1993) ("The duty of the prosecutor is to seek justice, not merely to convict."); id. cmt. ("[I]t is fundamental that the prosecutor's obligation is to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public"). We therefore hold that a defendant may challenge the validity of a guilty plea based on the prosecution's failure to disclose material exculpatory information before entry of the plea. Cf. RPC 3.8(d) (providing that "prosecutor in a criminal case shall" "[m]ake timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused").
The guilty-plea context, however, requires a different approach to the prejudice component of a Brady violation. Prejudice for purposes of a Brady violation requires a showing that the withheld evidence is "material." Normally, evidence is material if it "creates a reasonable doubt."
Other courts considering this issue have applied a standard of materiality that is based on the relevance of the withheld evidence to the defendant's decision to plead guilty: "whether there is a reasonable probability that but for the failure to disclose the Brady material, the defendant would have refused to plead and would have gone to trial." Sanchez, 50 F.3d at 1454. This materiality test is similar to the prejudice test
The materiality test is a high bar, cf. Padilla v. Kentucky, 559 U.S. ___, ___, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010) (describing ineffective-assistance test as "high bar"), that involves both a subjective and objective component. As a threshold matter, a defendant must affirmatively assert that he would have pleaded not guilty and insisted on going to trial. See Hill, 474 U.S. at 60, 106 S.Ct. 366 (rejecting ineffective-assistance claim because petitioner "did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial"). That is a subjective assertion.
Cases from other jurisdictions provide useful guidance for evaluating whether there is a reasonable probability/possibility that, but for the failure to disclose exculpatory evidence, the defendant would have refused to plead guilty and would have insisted on going to trial. In particular, the Wisconsin Court of Appeals, which has adopted the same materiality inquiry for Brady claims based on withheld exculpatory evidence in the guilty-plea context, has developed the following list of factors to consider in applying the materiality test:
State v. Sturgeon, 231 Wis.2d 487, 605 N.W.2d 589, 596 (Wis.Ct.App.1999).
The district court concluded that the State withheld exculpatory evidence (the surveillance tapes) and that the evidence was material because its absence adversely affected trial counsel's "ability to provide a sound defense."
The relevant factors support the conclusion that Huebler failed to demonstrate a reasonable possibility that he would have refused to plead guilty and would have gone to trial if the surveillance tapes had been delivered to counsel before entry of the guilty plea. First, there was substantial evidence of Huebler's guilt given the victim's statements and Huebler's statements regarding touching the victim and past molestation allegations involving young girls. Second, the withheld evidence is not particularly persuasive; the surveillance tapes did not record any events underwater, and therefore, do not refute the victim's claims. Thus, as noted in the margin above, it is questionable whether the tapes were exculpatory at all. Third, the testimony presented at the evidentiary hearing demonstrated that Huebler insisted on entering a guilty plea. Trial counsel's testimony indicated that she told Huebler that they "needed to look at the discovery" before he pleaded guilty and that she told him why they needed to do that but that he insisted
We concur: PICKERING, HARDESTY, PARRAGUIRRE, JJ., and SHEARING, SR. J.
CHERRY, J., with whom GIBBONS, J., agrees, dissenting:
The district court held that respondent Charles Huebler had demonstrated cause and prejudice to excuse the untimely filing of his post-conviction petition for a writ of habeas corpus based on a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that made his guilty plea involuntary and that Huebler therefore was entitled to withdraw his guilty plea. The court now concludes that even assuming that the evidence was withheld by the State and is exculpatory (two points that the court does not entirely embrace), Huebler failed to demonstrate that the evidence was material and therefore the district court's order must be reversed. I would conclude that the evidence is exculpatory and was withheld by the State, but then remand for the district court to apply the correct test for materiality (as set forth by the court).
I agree with the court that a Brady claim survives the entry of a guilty plea in that the State has a constitutional duty to disclose material exculpatory information that is within the State's possession before entering a plea agreement with a defendant. See, e.g., McCann v. Mangialardi, 337 F.3d 782, 787-88 (7th Cir.2003). I also find no fault in the court's articulation of the prejudice component of such a Brady claim, that withheld evidence is material if the defendant demonstrates a reasonable probability or possibility (depending on whether there was a specific request for evidence) that but for the failure to disclose the evidence he or she would have refused to plead guilty and would have insisted on going to trial. Where I must part company with my colleagues is in applying the three prongs of a Brady claim to the facts and circumstances presented in this case.
The starting point is whether the evidence at issue is exculpatory. The court suggests in the margin of its decision that the surveillance videotapes may not be exculpatory because the victim described the lewd acts as occurring underwater and the videotapes do not depict what occurred underwater. I cannot agree with this suggestion that the videotapes
The next consideration is whether the State withheld the evidence. The court suggests, again in the margin of its decision, that certain facts in the record would support a conclusion that the evidence could have been uncovered by the defense through diligent investigation. While defense counsel may have been able to contact law enforcement to obtain the videotapes (the police report included the name of the detective who could be contacted with questions related to the collection of the videotapes), the duty under Brady is the prosecutor's, and defense counsel had requested the videotapes and been told that the prosecutor would provide them to defense counsel (albeit at some later unspecified time after they had been provided to the prosecutor). Cf. Jimenez v. State, 112 Nev. 610, 620, 918 P.2d 687, 693 (1996) ("[E]ven if the detectives withheld their reports without the prosecutor's knowledge, `the state attorney is charged with constructive knowledge and possession of evidence withheld by other state agents, such as law enforcement officers.'" (quoting Gorham v. State, 597 So.2d 782, 784 (Fla.1992))); see also Allen v. State, 854 So.2d 1255, 1259 (Fla.2003) (stating that "[t]he defendant's duty to exercise due diligence in reviewing Brady material applies only after the State discloses it" and therefore "[o]nce the State obtained the results of the hair analysis, it was required to disclose them to the defendant").
The final consideration is whether the evidence is material. On this point it is clear that the district court did not apply the correct test for materiality, focusing instead on the impact that the videotapes' absence had on defense counsel's "ability to provide a sound defense." Under the circumstances, I would remand for the district court to apply the correct test in the first instance. In my view, a remand is appropriate because many of the relevant factors involve factual and credibility determinations that should be made by the district court.
In sum, while I applaud the court's recognition that the State has a constitutional duty to disclose material exculpatory information within its possession before entering a plea agreement with a defendant, I cannot agree with its application of the law to this case. Rather, I agree with the district court that the evidence at issue is exculpatory and was withheld by the State and would remand for the district court to apply the correct test for materiality.
I must also comment on footnote 13 and the discussion preceding footnote 12 in the majority opinion. I have reviewed the transcript of the evidentiary hearing in the court below and the testimony provided at the hearing and it demonstrates both factually and legally why Huebler should have been allowed to withdraw his guilty plea and that the district court was correct in its ruling.
Trial counsel had defended clients charged with misdemeanors for only two weeks, and then began representing clients charged with felonies. She had less than one year of experience when she represented Huebler. This case was the first time counsel had represented a defendant charged with a sexual offense and the first time one of her clients faced a possible life sentence. The record further reveals that Huebler had attempted suicide, was on suicide watch, and was incredibly depressed. Huebler waived a preliminary hearing to plead to one count of lewdness, and the second count would be dismissed. Counsel had requested discovery but did not receive either the video surveillance or video recording of Huebler's interrogation. Counsel knew these videos existed, but had not received them.
Counsel testified at the evidentiary hearing that if she had received these videos, she could have stopped Huebler from entering a plea. Even more enlightening is counsel's profound revelation that after she finally reviewed the tapes, she would have thrown herself into traffic to prevent Huebler's guilty plea.
I concur: GIBBONS, J.
The district court determined that the evidence was exculpatory because it "fails to show the crime charged." It is not entirely clear that the tapes tend to establish Huebler's innocence because the victim indicated that Huebler touched her buttocks and vagina underwater and the tapes do not show what occurred underwater. The State questions the district court's description of the evidence as exculpatory in the context of its argument that the evidence is not material but does not argue that the evidence is not exculpatory and therefore there was no duty to disclose it. Because the State has not challenged the district court's decision that the evidence is exculpatory, that question is not presented here and we do not answer it.
The district court also determined that the evidence had been withheld by the State. It is not clear from the district court's order that it considered whether the surveillance videotapes could have been uncovered through diligent investigation by the defense. See Steese v. State, 114 Nev. 479, 495, 960 P.2d 321, 331 (1998) ("Brady does not require the State to disclose evidence which is available to the defendant from other sources, including diligent investigation by the defense."). There are some facts in the record to support such a conclusion. At the evidentiary hearing, Huebler's trial counsel acknowledged that she was informed of the existence of the surveillance videotapes prior to Huebler's guilty plea. Also, the police report, which Huebler's counsel acknowledged was in her possession, stated the name of the police detective to contact with questions relating to the collection of the videotapes. Again, because the State does not challenge the district court's decision that the evidence was withheld, we need not resolve this issue.