Chavez (Jafet) v. State ( 2013 )

 Appellant argues that the district court erred in dismissing his
petition as procedurally barred without allowing appellant the opportunity
to oppose the State's motion to dismiss or conducting an evidentiary
hearing to allow appellant to demonstrate good cause to excuse the
procedural time bar. Appellant fails to demonstrate he is entitled to relief.
Appellant has the burden of pleading facts to demonstrate
good cause in his petition. See State v. Haberstroh, 119 Nev. 173, 181, 69
P.3d 676, 681 (2003). Appellant stated in his petition that he filed it more
than one year after entry of the judgment of conviction because the federal
court had told him to return to state court to exhaust his claims.
Exhaustion of state remedies in order to seek federal court review is
insufficient to demonstrate cause to excuse the delay. See Colley v. State,
105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989). As appellant failed to
plead facts demonstrating good cause in his petition, the district court did
not err in dismissing the petition without allowing appellant additional
opportunities to overcome the procedural bar. 2 Therefore, the district
court did not err in dismissing the petition as procedurally barred without
conducting an evidentiary hearing.
Appellant also asserts that the State did not serve him with a
copy of its motion to dismiss the petition. However, the State's motion
contained a certificate of service, certifying that the State served appellant
via the U.S. mail at the address listed on appellant's petition on July 7,
2011. Accordingly, appellant fails to demonstrate that the State failed to
properly serve the motion. See NRCP 5(b)(4) ("Proof of service may be
2The district court granted appellant an extension of time to oppose
the State's motion to dismiss, yet appellant did not file an opposition.
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made by certificate of an attorney or of the attorney's employee."); see also
NRS 34.780(1) (stating that the Nevada Rules of Civil Procedure apply to
proceedings for post-conviction petitions for a writ of habeas corpus to the
extent they are not inconsistent with NRS Chapter 34). 3
Next, appellant argues that failure to consider the merits of
his claims would result in a fundamental miscarriage of justice. Appellant
did not raise this claim before the district court, and therefore, we decline
to consider this claim in the first instance. See Davis v. State, 107 Nev.
600, 606, 817 P.2d 1169, 1173 (1991), overruled on other grounds by
Means v. State, 120 Nev. 1001, 1012-13, 103 P.2d 25, 33 (2004). We
therefore conclude that the district court did not err in dismissing
appellant's petition as procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
tA—ok
Douglas
Saitta
3 It appears that appellant received the State's motion to dismiss, as
appellant filed a motion seeking an enlargement of time to oppose the
State's motion to dismiss.
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Mt LIM111-1.Z.S1[.
cc: Hon. Valorie J. Vega, District Judge
Leavitt Law Firm
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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