Peck (Frank) v. State ( 2014 )

 34.810(1)(b)(2); NRS 34.810(2). Appellant's petition was therefore
procedurally barred absent a demonstration of good cause and actual
prejudice. NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3).
In an attempt to excuse his procedural defects, appellant
claimed that he had newly discovered evidence that the State committed a
Brady3 violation and offered false evidence at his 1997 trial by failing to
disclose to the jury that the DNA evidence was analyzed using the PCR
technique. Appellant's claim does not rely on evidence withheld by the
State but rather is based on his belief that the DNA results were
inadmissible at trial because they were obtained through the use of the
PCR technique. The instant petition was filed almost 13 years after the
conclusion of appellant's trial and direct appeal, and appellant's
allegations failed to demonstrate that the StateS withheld evidence from
the defense or that appellant could not have known about the factual basis
for this claim earlier. See State v. Huebler, 128 Nev. , & n.3, 275
P.3d 91, 95 & n.3 (2012); Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d
503, 506 (2003). Therefore, we conclude that the district court did not err
in rejecting this claim.
Next, appellant claimed that his trial counsel was ineffective
for failing to investigate the DNA evidence and that official interference
prevented him from raising the DNA claims earlier because the prison did
. . . continued
2012); Peck v. State, Docket No. 60878 (Order of Affirmance, January 16,
2013).
3 Brady v. Maryland, 373 U.S. 83 (1963).
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not provide him with the means to research DNA methods or protocols. To
the extent that appellant claimed that the ineffective assistance of trial
counsel provided good cause to excuse his procedural defects, appellant's
claim lacked merit. A claim of ineffective assistance that is itself
procedurally barred cannot constitute good cause to excuse a procedural
defect. Hathaway, 119 Nev. at 252, 71 P.3d at 506. As to appellant's
claim that official interference prevented him from ascertaining the legal
basis of his claim earlier, appellant did not demonstrate that the prison
failed to provide adequate access to legal resources or the courts.
Therefore, we conclude that the district court did not err in rejecting these
good-cause arguments.
Appellant also claimed that the procedural bars did not apply
to him because his judgment of conviction did not include the conditions of
his lifetime-supervision sentence and thus was not final. This claim is
without merit, as the conditions of lifetime supervision are determined by
the Board of Parole Commissioners after a hearing just prior to the sex
offender's release from custody. See Palmer v. State, 118 Nev. 823, 827, 59
P.3d 1192, 1194-95 (2002); NRS 213.1243(1); NAC 213.290. Therefore, we
conclude that the district court did not err in denying the petition as
procedurally barred, and we
ORDER the judgment of the district court AFFIRMED.
eje.42.1
Hardesty
OAcut
Cherry
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cc: Hon. Brent T. Adams, District Judge
Frank Milford Peck
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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