Aytch (Martinez) v. State ( 2014 )

 34.810(1)(b)(2); NRS 34.810(2). Appellant's petition was 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).
First, appellant claimed that he had good cause because he
received ineffective assistance of trial and appellate counsel. We conclude
that this argument lacked merit. Claims of ineffective assistance of trial
and appellate counsel were reasonably available to be raised in a timely
petition and ineffective-assistance-of-counsel claims that are themselves
procedurally barred cannot establish good cause. Hathaway v. State, 119
Nev. 248, 252-53, 71 P.3d 503, 506 (2003); see also Edwards v. Carpenter,
529 U.S. 446,453 (2000).
Second, appellant, relying upon Martinez v. Ryan, 566 U.S.
132 S. Ct. 1309 (2012), argued that he had good cause because he was
not appointed counsel for the first post-conviction proceedings. We
conclude that this argument lacked merit. The appointment of counsel
was discretionary in the first post-conviction proceedings, see NRS
34.750(1), and appellant failed to demonstrate an abuse of discretion or
provide an explanation for why he could not raise this claim earlier.
Further, this court has recently held that Martinez does not apply to
Nevada's statutory post-conviction procedures. See Brown v. McDaniel,
Nev. , P.3d (Adv. Op. No. 60, August 7, 2014). Thus, the
failure to appoint post-conviction counsel and the decision in Martinez
would not provide good cause for this late and successive petition.
...continued
claims were previously litigated and appellant provided no cogent
argument why he should be permitted to raise them again.
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Third, appellant claimed that he had good cause because he
had been litigating the validity of his conviction in federal court and was
required to exhaust state court remedies. We conclude that this argument
lacked merit. Litigating a petition in federal court and exhaustion of
claims in order to seek federal court review do not provide good cause. See
Colley v. State, 105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989); see also
Edwards, 529 U.S. at 452-53. Therefore, we conclude that the district
court did not err in denying this petition as procedurally barred.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Hardesty
J.
J.
cc: Hon. Jennifer P. Togliatti, District Judge
Martinez Smith Aytch
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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