Shepard (Gary) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
GARY SHEPARD, No. 68699
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. APR 1 4 2016
TRACE K. LINDFMAN
CLERK OF SUPREME COURT
BY
"---S4121
CEPUTY CLE17.--
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order denying
appellant Gary Shepard's postconviction petition for a writ of habeas
corpus. Second Judicial District Court, Washoe County; Scott N.
Freeman, Judge.
Shepard filed his petition April 24, 2015, more than 12 years
after remittitur issued from his direct appeal on October 8, 2002. Shepard
v. State, Docket No. 38308 (Order of Affirmance, September 10, 2002).
Thus, the petition was untimely. See NRS 34.726. The petition was also
successive because Shepard had previously sought postconviction relief'
and constituted an abuse of the writ to the extent it raised a new claim.
See NRS 34.810. Thus, Shepard's petition was procedurally barred absent
a demonstration of good cause and prejudice. See NRS 34.726(1); NRS
34.810(3).
Shepard argues that the district court erred by applying the
procedural bars for two reasons. First, he asserts that he is actually
innocent of first-degree murder. See Lisle v. State, 131 Nev., Adv. Op. 39,
351 P.3d 725, 729-30 (2015) (recognizing that a district court may reach
'Shepard v. State, Docket No. 45481 (Order of Affirmance, Nov. 8,
2006).
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the merits of a procedurally defaulted claim if a petitioner demonstrates
actual innocence). We disagree because Shepard failed to allege sufficient
facts to constitute actual innocence. See Mitchell v. State, 122 Nev. 1269,
1273-74, 149 P.3d 33, 36 (2006) ("Actual innocence means factual
innocence, not mere legal insufficiency." (internal quotation marks and
alterations omitted)); see also Rozzelle v. Sec'y, Florida Dep't of Corr., 672
F.3d 1000, 1016 (11th Cir. 2012) (explaining that the actual innocence
exception contemplates the "extremely rare" cases where the State
convicted an innocent man, not "run of the mill" cases where the petitioner
argues that he is guilty of a lesser offense than that for which he was
convicted). 2 Second, Shepard asserts that Martinez v. Ryan, 566 U.S.
132 S. Ct. 1309 (2012), and Ha Van Nguyen v. Curry, 736 F.3d 1287, 1289
(9th Cir. 2013), constitute good cause to excuse the procedural bars. We
disagree because these holdings do not apply to Nevada's postconviction
procedures. Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 870
(2014). Accordingly, we
ORDER the judgment of the district court AFFIRMED. 3
Gibbons
2Although the district court's order does not address Shepard's
actual-innocence argument, we conclude that no relief is warranted
because the claim clearly lacks merit.
3 Wealso conclude that the district court did not abuse its discretion
by denying Shepard's motion to appoint counsel. See NRS 34.750.
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CHERRY, J., dissenting:
I would extend the equitable rule recognized in Martinez to
this case because appellant was convicted of murder and is facing a severe
sentence. See Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867,
875 (2014) (Cherry, J., dissenting). Accordingly, I would reverse and
remand for the district court to determine whether appellant can
demonstrate a substantial underlying ineffective-assistance-of-counsel
claim that was omitted due to the ineffective assistance of postconviction
counsel.
Cherry 9
cc: Hon. Scott N. Freeman, District Judge
Gary Shepard
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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