Lancaster (Doyle) v. Warden ( 2013 )

 v. State, 110 Nev. 349, 359, 871 P.2d 944, 950 (1994). The district court
denied the Lozada petition, and this court upheld the judgment, Lancaster
v. Warden, Docket No. 51446 (Order of Affirmance and Limited Remand to
Correct the Judgment of Conviction, October 26, 2009). Appellant filed
the instant post-conviction petition on August 2, 2011. Because appellant
filed his petition more than 8 years after the entry of the judgment of
conviction, the petition was untimely under NRS 34.726. It also was
successive pursuant to NRS 34.810(2). The petition therefore was
procedurally barred absent a demonstration of good cause and prejudice.
NRS 34.726(1); NRS 34.810(3). If appellant cannot demonstrate good
cause, the district court may nevertheless excuse a procedural bar if he
demonstrates that failing to consider the petition would result in a
fundamental miscarriage of justice. Pellegrini v. State, 117 Nev. 860, 887,
34 P.3d 519, 537 (2001). A fundamental miscarriage of justice requires "a
colorable showing" that the appellant is "actually innocent of the crime."
Id. He "must show that it is more likely than not that no reasonable juror
would have convicted him absent a constitutional violation." Id. In this
context, actual innocence means "factual innocence, not mere legal
insufficiency." Mitchell v. State, 122 Nev. 1269, 1273-74, 149 P.3d 33, 36
(2006) (internal quotation marks and citation omitted).
As good cause to overcome the procedural bars, appellant
argues that counsel was ineffective on a number of grounds, including that
counsel had a conflict of interest based on counsel's alleged agreement
with the victim's family members to prevent the victim's appearance at
court appearances in exchange for payment. While an ineffective-
assistance-of-counsel claim may excuse a procedural default, "the
ineffective assistance of counsel claim itself must not be procedurally
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defaulted." Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003).
Because appellant's claims of ineffective assistance of counsel are
untimely, they cannot serve as good cause for the delay in filing his
petition and he has not explained why he could not have raised those
claims in his prior post-conviction petition. Appellant also argues that his
physical and mental health issues establish good cause for the delay in
filing his petition. However, he has not explained how those matters
prevented him from filing his petition for 8 years after the filing of the
judgment of conviction. We therefore conclude that the district court did
not err by denying his post-conviction petition as procedurally barred
without conducting an evidentiary hearing on his good-cause claims.'
Appellant next argues that he is actually innocent because his
physical limitations precluded him from becoming sexually aroused and
therefore he could not have committed his crimes. Because appellant
pleaded guilty, he must demonstrate not only that he is factually innocent
of the charges to which he pleaded guilty but also that he is factually
innocent of any more serious charges forgone in the plea bargaining
process. Bousley v. United States, 523 U.S. 614, 623-24 (1998). Appellant
does not address actual innocence relative to any charges relinquished by
the State during negotiations. Nevertheless, we conclude that his claim
lacks merit because the offense of lewdness with a child does not require
'To the extent appellant argues that NRS 34.726 should be subject
to equitable tolling, we reject that argument because the plain language of
that statute provides that a petitioner must demonstrate good cause for a
delay in filing a post-conviction petition and that good cause may exist if
he demonstrates that the delay was not his fault and prejudice. See NRS
34.726(1)(a), (b).
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that the criminal act arouse the defendant. See NRS 201.230(1) (requiring
the criminal act was committed "with the intent of arousing, appealing to,
or gratifying the lust or passions or sexual desires of that person or of that
child"). Accordingly, we conclude that the district court did not err by
denying his claim of actual innocence without conducting an evidentiary
hearing. 2
Having considered appellant's arguments and concluded that
they lack merit, we
ORDER the judgment of the district court AFFIRMED.
(c:L. ,J
Hardesty
Parraguirre '41 Cherry
cc: Hon. Jerome Polaha, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
2 To the extent appellant argues that trial counsel's ineffective
assistance establishes actual innocence, his claim lacks merit as the actual
innocence exception requires him to show that he is factually innocent of
the crimes charged, see Mitchell, 122 Nev. at 1273-74, 149 P.3d at 36, and
his ineffective-assistance-of counsel claims make no such showing.
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