Jones (Robert) v. State ( 2014 )

 procedurally barred absent a demonstration of good cause and actual
prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3). Further,
because the State specifically pleaded laches, appellant was required to
overcome the presumption of prejudice to the State. See NRS 34.800(2).
Appellant argued that this court's decisions in Byford v. State,
116 Nev. 215, 994 P.2d 700 (2000), and Nika v. State, 124 Nev. 1272, 198
P.3d 839 (2008), and the Ninth Circuit Court of Appeals decisions in Polk
v. Sandoval, 503 F.3d 903 (9th Cir. 2007), and Chambers v. McDaniel, 549
F.3d 1191 (9th. Cir. 2008), provided good cause to excuse the procedural
bars to his claims regarding his first-degree-murder jury instructions.
This court has already held that Byford, Polk, and Chambers do not
constitute good cause to overcome appellant's procedural bars. Jones v.
State, Docket No. 55832 (Order of Affirmance, September 29, 2010). That
holding is the law of the case and "cannot be avoided by a more detailed
and precisely focused argument subsequently made after reflection upon
the previous proceedings." Hall v. State, 91 Nev. 314, 315-16,535 P.2d
797, 798-99 (1975). Further, Nika did not provide good cause to overcome
the procedural bars as that case was decided nearly a year before
appellant filed his December 4, 2009, post-conviction habeas petition and
nearly five years before he filed his September 6, 2013, petition. Appellant
failed to explain how an impediment external to the defense prevented
litigation of these claims within a reasonable time of the decision in Nika.
Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003).
Appellant also argued that the United States Supreme Court
decision in Martinez v. Ryan, 566 U.S. , 132 S. Ct. 1309 (2012),
provided good cause to excuse the procedural bars against his claims of
ineffective assistance of appellate counsel. Appellant's reliance on
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Martinez was misplaced as Martinez was concerned with the assistance of
post-conviction counsel, not counsel on direct appeal. Further, appellant
filed the instant petition nearly 18 months after Martinez was decided and
failed to explain the delay. See Hathaway, 119 Nev. at 252-53, 71 P.3d at
506.
Finally, to the extent appellant argued that he would suffer a
fundamental miscarriage of justice were his claims not considered on the
merits, he did not demonstrate actual innocence because he 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. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996).
Moreover, appellant failed to overcome the presumption of prejudice to the
State pursuant to NRS 34.800(2). We therefore conclude that the district
court did not err in denying appellant's petition as procedurally barred.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
P tleu we J.
J.
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cc: Hon. Michael Villani, District Judge
Robert Earl Jones
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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