Brown (Kasard) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
KASARD OMAR BROWN, No. 66919
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
MAR 1 7 2016
TRACE K. LINDEMAN
CLERK OF UPREME COURT
BY •
DEPUTY CLER
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying appellant
Kasard Brown's postconviction petition for a writ of habeas corpus.
Eighth Judicial District Court, Clark County; Kenneth C. Cory, Judge.
Brown filed his petition on March 7, 2014, more than 8 years
after remittitur issued from his direct appeal on December 8, 2005. Brown
v. State, Docket No. 40718 (Order Vacating Prior Order and Affirming the
Judgment of Conviction, October 25, 2005). Thus, his petition was
untimely filed. NRS 34.726. The petition was also successive because
Brown had previously sought postconviction relief. Brown v. State, Docket
No. 52829 (Order of Affirmance, April 28, 2011). Accordingly, the petition
was procedurally barred absent a demonstration of good cause and
prejudice. See NRS 34.726; NRS 34.810(3). Further, because the State
pleaded laches, Brown was required to overcome the presumption of
prejudice to the State. See NRS 34.800.
Brown argues that he is not required to demonstrate good
cause and prejudice• because his claims are not new. Brown is mistaken
A petitioner who files a second petition must demonstrate good cause and
prejudice for presenting a new claim "or for presenting [a] claim again."
SUPREME COURT
OF
NEVADA
(0) I947A 4p)
to -08'17 7
NRS 34.810(3)(a) (emphasis added). As an alternative argument, Brown
contends that he demonstrated good cause because the factual basis of one
of his underlying claims was not reasonably available when he litigated
his first postconviction petition. This contention lacks merit; moreover, it
was not raised within a reasonable time and would not provide cause to
review the remainder of Brown's claims. See Hathaway v. State, 119 Nev.
248, 252, 71 P.3d 503, 506 (2003). 1 Therefore, we
ORDER the judgment of the district court AFFIRMED.
frere-ck-, , J.
Hardesty
C
Saitta Pickering
Hon. Kenneth C. Cory, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
'To the extent Brown argues that postconviction counsel's
ineffectiveness and his pursuit of federal remedies constitute good cause,
no relief is warranted. See Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331
P.3d 867, 870 (2014) (holding that Martinez v. Ryan, 566 U.S. , (2012)
does not apply to Nevada postconviction procedures); see also Colley v.
State, 105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989) (holding that the
pursuit of federal remedies does not constitute good cause). We decline to
consider Brown's argument regarding institutional interference because it
was not fairly raised below.
SUPREME COURT
OF
NEVADA
2
(Op 1947A 44VD1A,