Dreyfuss (Philip) v. State ( 2015 )


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  •                 postconviction habeas petition.         Appellant's claims were therefore
    reasonably available to be raised in a timely petition.
    Further, appellant has not demonstrated that any
    "impediment external to the defense prevented him" from filing a timely
    petition.   Hathaway v. State, 
    119 Nev. 248
    , 252-53, 
    71 P.3d 503
    , 506
    (2003). Appellant's argument that it was counsel's fault is unavailing as
    counsel is clearly part of "the defense." Nor was the filing of the motion
    for new trial good cause because it did not prevent the filing of a timely
    postconviction habeas petition. Cf. Colley v. State, 
    105 Nev. 235
    , 236, 
    773 P.2d 1229
    , 1230 (1989) (holding that choosing to pursue federal habeas
    relief first is not good cause for a delay in pursuing state postconviction
    relief). Finally, the State's actions did not impede appellant's ability to file
    a timely postconviction petition. Although the State did not seek a writ to
    prohibit the district court from conducting an evidentiary hearing on the
    motion for new trial until after the filing deadline for a timely petition, it
    had announced its intention to seek a writ at a hearing on August 10,
    2011, more than two months before the deadline. Further, the State's
    suggestion at the August 3, 2011, hearing that a postconviction habeas
    petition was the appropriate remedy did not bar the State from
    subsequently seeking to dismiss the petition as procedurally barred where,
    even had the State made any representation about procedural bars, their
    application is mandatory. State v. Eighth Judicial Dist. Court, 
    121 Nev. 225
    , 231, 
    112 P.3d 1070
    , 1074 (2005); see also State v. Haberstroh, 
    119 Nev. 173
    , 181, 
    69 P.3d 676
    , 682 (2003) (holding that parties may not
    stipulate to disregard procedural bars).
    SUPREME COURT
    OF
    NEVADA
    (0) 1947A
    2
    For the foregoing reasons, we conclude that the district court
    did not err in denying the petition as procedurally barred without first
    conducting an evidentiary hearing, and we
    ORDER the judgment of the district court AFFIRMED.
    , C.J.
    Hardesty
    teag=
    Parraguirr e     46        .1
    J.
    LA-1 I 4--3
    Douglas
    cc:   Hon. David B. Barker, District Judge
    Christopher R. Oram
    Attorney General/Carson City
    Clark County District Attorney
    Eighth District Court Clerk
    SUPREME COURT
    Of
    NEVADA
    3
    (0) I947A
    

Document Info

Docket Number: 64870

Filed Date: 11/13/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021