Gurry (Carlos) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
CARLOS ALFREDO GURRY, No. 68144
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
FEB 1 0 2016
ORDER OF AFFIRMANCE
This is a pro se appeal from an order denying a postconviction
petition for a writ of habeas corpus." Eighth Judicial District Court, Clark
County; Elissa F. Cadish, Judge.
Appellant filed his petition on January 26, 2015, 21 years after
remittitur issued from his direct appeal on January 25, 1994. Thus,
appellant's petition was untimely filed. See NRS 34.726(1). Appellant's
petition was also successive because he had previously sought
postconviction relief, 2 and it constituted an abuse of the writ to the extent
it raised new and different claims. See NRS 34.810(2). Appellant's
petition was therefore procedurally barred absent a demonstration of good
cause and prejudice. See NRS 34.726(1). Further, because the State
'This appeal has been submitted for decision without oral argument,
NRAP 34(0(3), and we conclude that the record is sufficient for our review
and additional briefing is unwarranted. See Luckett v. Warden, 91 Nev.
681, 682, 541 P.2d 910, 911 (1975).
2 Gurryv. State, Docket No. 27922 (Order Dismissing Appeal,
December 20, 1996); Gurry v. State, Docket No. 52185 (Order of
Affirmance, July 23, 2009); Gurry v. State, Docket No. 64310 (Order of
SUPREME COURT
Affirmance, March 12, 2014).
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pleaded laches, appellant was required to overcome the presumption of
prejudice to the State. See NRS 34.800(1), (2).
Appellant contends that the district court erred by denying his
petition because he is actually innocent. See Mazzan v. Warden, 112 Nev.
838, 842, 921 P.2d 920, 922 (1996) (recognizing that procedurally
defaulted claims may be considered if a petitioner demonstrates he is
actually innocent). Appellant fails to demonstrate that the district court
erred by denying his petition because he fails to demonstrate that he is
actually innocent. See Calderon v. Thompson, 523 U.S. 538, 559 (1998)
(explaining that a claim of actual innocence must be based on new
evidence); Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
Appellant also fails to demonstrate that the district court erred by
rejecting the various motions he filed incident to the petition, see Mazzan
v. State, 109 Nev. 1067, 1070, 863 P.2d 1035, 1036 (1993) ("This court may
look to general civil or criminal rules for guidance only when the statutes
governing habeas proceedings have not addressed the issue presented."),
and his motion for the appointment of counsel, see NRS 34.750.
Accordingly, we
ORDER the judgment of the district court AFFIRMED. 3
(-CAA ("12- .J J.
Parraguirre Li
3 Wehave received the documents submitted by appellant in this
matter on June 30, 2015, August 17, 2015, and September 22, 2015, and
conclude that no relief is warranted based upon these submissions.
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CHERRY, J., concurring:
I concur.
cc: Hon. Elissa F. Cadish, District Judge
Carlos Alfredo Gurry
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
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