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 2015-09

Holmes, III (Robert) v. State ( 2015 )


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  •                               Holmes claimed that his petition was timely filed because he
filed it within one year after the amended judgment of conviction was
entered on September 17, 2013. The entry of the amended judgment of
conviction, however, did not restart the one-year time period for filing a
post-conviction habeas petition.   See Sullivan v. State,
    120 Nev. 537
    , 540-
41,
    96 P.3d 761
    , 764 (2004). Further, the entry of the amended judgment
of conviction did not provide good cause to excuse the untimely filing of his
petition because none of his claims were related to the correction of
presentence credits contained in the amended judgment of conviction.      Id.
at 541,
    96 P.3d at 764
    .
Next, Holmes claimed he had good cause because newly
discovered evidence indicated one of the detectives assigned to his case
may have used a false name. Holmes failed to demonstrate that this claim
could not have been raised earlier and that he would not have pleaded
guilty had he known about this evidence. See Hathaway v. State,
    119 Nev. 248
    , 252-53,
    71 P.3d 503
    , 506 (2003). Therefore, he failed to demonstrate
good cause to excuse the procedural defects.
Holmes also claimed that failure to consider his petition would
result in a fundamental miscarriage of justice because he is actually
innocent. Holmes did not allege factual innocence and failed to show that
"it is more likely than not that no reasonable juror would have convicted
him in light of. . . new evidence."    Calderon v. Thompson,
    523 U.S. 538
    ,
559 (1998) (quoting Schlup v. Delo,
    513 U.S. 298
    , 327 (1995)); see also
Pellegrini v. State,
    117 Nev. 860
    , 887,
    34 P.3d 519
    , 537 (2001); Mazzan v.
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Warden,
    112 Nev. 838
    , 842,
    921 P.2d 920
    , 922 (1996). Therefore, Holmes
failed to demonstrate actual innocence. Holmes also failed to overcome
the presumption of prejudice to the State.            See   NRS 34.800(2).
Accordingly, we conclude that the district court did not err in denying the
petition as procedurally barred, and we
ORDER the judgment of the district court AFFIRMED.
Ot-t-s-cA---
Parraguirre
J.
CherryY   a LIAL
cc:   Eighth Judicial District Court Dept. 20
Robert Holmes, III
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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