-
demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3). Moreover, because the State specifically pleaded laches, appellant was required to overcome the rebuttable presumption of prejudice. MRS 34.800(2). Appellant claimed that his appellate and previous post- conviction counsel did not properly raise and exhaust two claims, which did not allow him to proceed in federal court on those two claims. That counsel for appellant did not exhaust state remedies in appellant's earlier court proceedings did not demonstrate that there was an impediment external to the defense that should excuse the procedural bars. See Hathaway v. State,
119 Nev. 248, 252,
71 P.3d 503, 506 (2003); see also Colley v. State,
105 Nev. 235, 236,
773 P.2d 1229, 1230 (1989). Further, appellant's argument regarding post-conviction counsel as good cause lacked merit as appellant had no statutory right to post-conviction counsel, and thus the ineffective assistance of post-conviction counsel does not provide good cause for a successive and untimely petition. See McKague v. Warden,
112 Nev. 159, 164-65 & n.5,
912 P.2d 255, 258 & n.5 (1996); Crump v. Warden,
113 Nev. 293, 303 & n.5,
934 P.2d 247, 253 & n.5 (1997); see also Brown v. McDaniel, 130 Nev. , P.3d 2 (Adv. Op. No. 60, August 7, 2014) (explaining that post-conviction counsel's performance does not constitute good cause to excuse the procedural bars unless the appointment of post-conviction counsel was mandated by statute); Coleman v. Thompson,
501 U.S. 722, 755-757 (1991) (holding that petitioner did not have a "constitutional right to counsel on appeal from the state habeas trial court judgment" and that a claim of ineffective assistance of counsel during state habeas appellate proceedings does not constitute cause to excuse the procedural defects). SUPREME COURT OF NEVADA 2 (0) 1947A Finally, appellant failed to overcome the presumption of prejudice to the State. Therefore, the district court did not err in dismissing the petition as procedurally barred and barred by laches. Accordingly, we ORDER the judgment of the district court AFFIRMED. 3 J. Hardesty Douglas CHERRY, J., concurring: Although 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. P.3d (Adv. Op. No. 60, August 7, 2014) (Cherry, J., dissenting), I concur in the judgment on appeal in this case because the State pleaded laches 3 We have reviewed all documents that appellant has submitted in proper person to the clerk of this court in this matter and the State's opposition to appellant's motion to vacate conviction, and we conclude that no relief based upon those submissions is warranted. To the extent that appellant has attempted to present claims or facts in those submissions which were not previously presented in the proceedings below, we have declined to consider them in the first instance. SUPREME COURT OF NEVADA 3 (0) 1947A e under NRS 34.800(2) and appellant failed to rebut the presumption of prejudice to the State. cc: Hon. Nancy L. Porter, District Judge Mark Anthony Hanson Attorney General/Carson City Elko County District Attorney Elko County Clerk SUPREME COURT OF NEVADA 4 (0) 1947A e
Document Info
Docket Number: 62033
Filed Date: 9/16/2014
Precedential Status: Non-Precedential
Modified Date: 4/17/2021