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Post-conviction death cases remanded

The Nevada Supreme Court issued an unpublished decision today in Byford v. State. The Court vacated the district court's Order and remanded for further proceedings.

A little bit of history is in order: Byford filed a post-conviction petition for a writ of habeas corpus in which he raised a number of claims. The district court summarily denied the petition, without a grant of discovery or an evidentiary hearing, and without entering specific findingings. Byford appealed. The Nevada Supreme Court promptly (within 1 month of the filing of the Reply Brief) affirmed the district court as to claims not concerning the effective assistance of counsel, and reversed the district court's orders as to the numerous claims of ineffective assistance of trial and appellate counsel. The Court concluded that the district court's order lacked specific findings of fact and conclusions of law to support its decision, and directed the court to reconsider the claims and, at a minimum, enter an order that set forth specific findings of fact and conclusions of law to support its decision.

Upon remand, the district court did not hold an evidentiary hearing and did not hear argument from counsel. Instead, the State prepared a new proposed order, which the district court signed without advising Byford or his counsel that a proposed order was before the court.

The Nevada Supreme Court found this improper and again remanded the case, for the reasons set forth below:

"The State and the district court acted improperly for several reasons.

First, while Eighth District Court Rule 7.21 allows the party "obtaining" an order to submit a proposed order to the district court, the State never obtained an order after our vacatur and remand. Its draft of a new order was therefore unfounded. The district court must make a ruling and state its findings of fact and conclusions of law before the State can draft a proposed order for the district court's review.

Second, Nevada Code of Judicial Conduct 3B(7) requires the district court to "accord every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard." The commentary on this section specifically notes that the district court may request a party to submit proposed findings of facts and conclusions of law, but it must ensure that the "other parties are apprised of the request and are given an opportunity to respond." The district court denied Byford the opportunity to be heard on the State's proposed findings of fact and conclusions of law.

Third, the State argues that Byford never objected to the proposed findings and never sought to have them modified after the order was filed, but there is no requirement that he do so. EDCR 7.21 does not require this and does not relieve the district court of its obligation under NCJC 3B(7) to ensure that the other parties are notified of a proposed order and given the opportunity to comment on it. Nevada Rule of Civil Procedure 52, which the State cites in support of its argument, is inapplicable to a petition for a writ of habeas corpus; the procedure to be followed in such provisions is set forth in NRS chapter 34. Even if NRCP 52 did apply here, it provides a right to seek amendment of a district court order; it does not create an obligation to do so.

Finally, in resolving Byford's prior appeal from the district court's earlier order denying this habeas petition, this court vacated in part and remanded, specifically directing the district court to "reconsider" Byford's claims of ineffective assistance of counsel. The district court's acceptance of an order drafted unilaterally by the State did not satisfy this direction. Rather -- in the event that on remand the district court did not simply evaluate Byford's claims and draft and enter its own order without further argument or evidence -- the district court was required at the very least to hold a hearing, with both parties present, at which it stated its new ruling and explained its findings and conclusions, providing guidance for the State to draft a proposed order.

Of course, as we explained before, an evidentiary hearing is required in regard to any claims that are supported by specific factual allegations unrepelled by the record and that would warrant relief if true. We note that the order drafted by the State, in rejecting claims that Byford's counsel were ineffective, repeatedly asserts that his counsel made strategic choices. In most instances, this is a difficult assessment to make without the benefit of counsel's testimony. Accordingly, we

ORDER the judgment of the district court VACATED AND REMAND this matter to the district court for proceedings consistent with this order.

Filed 2/7/07 by Justices Parraguirre, Hardesty and Saitta (footnotes omitted)

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