Holmes (Kevin) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
KEVIN RAY HOLMES, No. 68955
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
APR 1 4 2016
TRACIE K. LINDEMAN
CLERK OF SUPREME COURT
BY •
DEPUTY CLERK
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order denying
appellant Kevin Ray Holmes' postconviction petition for a writ of habeas
corpus. Eighth Judicial District Court, Clark County; Michael Villani,
Judge.
Holmes filed his petition on June 5, 2015, more than 13 years
after remittitur issued from his direct appeal on July 12, 2001. Holmes v.
State, Docket No. 35367 (Order of Affirmance, May 21, 2001). Thus, his
petition was untimely filed. NRS 34.726(1). Moreover, the petition was
successive because Holmes had previously sought postconviction relief.'
NRS 34.810(2). The petition was therefore procedurally barred absent a
demonstration of good cause and prejudice. NRS 34.726(1); NRS 34.810.
'Holmes v. State, Docket No. 41065 (Order of Affirmance, January 2,
2004).
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Further, because the State pleaded laches, Holmes was required to
overcome the presumption of prejudice to the State. NRS 34.800(2). 2
Holmes contends that the district court erred by denying his
petition because he demonstrated good cause and prejudice to excuse the
untimely filing for several reasons: (1) the district court erroneously
denied his first postconviction petition and this court erroneously
affirmed, (2) the petition relates back to his first postconviction petition,
(3) he received ineffective-assistance of trial and appellate counsel, and (4)
he was not given counsel in his first postconviction petition in violation of
Martinez v. Ryan, 566 U.S. , 132 S. Ct. 1309 (2012). We conclude that
the district court did not err by denying the petition because Holmes failed
to demonstrate good cause and prejudice sufficient to excuse the
procedural bars. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503,
506 (2003) ("[G]ood cause means a substantial reason; one that affords a
legal excuse." (internal quotation marks omitted)); Brown v. McDaniel,
130 Nev., Adv. Op. 60, 331 P.3d 867, 875 (2014) (holding that Martinez
does not apply to Nevada postconviction procedures).
Holmes also contends that the district court erred by denying
his petition because he is innocent. See Pellegrini v. State, 117 Nev. 860,
887, 34 P.3d 519, 537 (2001) (explaining that court can excuse the
procedural bars if failure to consider the claim would result in a
fundamental miscarriage of justice). We conclude that the district court
did not err by denying the petition because Holmes fails to offer new
2 We reject Holmes' assertions that his petition is not successive and
that laches does not apply.
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evidence of innocence and his claim contemplates legal rather than factual
innocence. See Brown, 130 Nev., Adv. Op. 60, 331 P.3d at 875.
Having considered Holmes' contentions and concluded they
lack merit, we
ORDER the judgment of the district court AFFIRMED.
Douglas
Gibboris
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 district court's failure to appoint counsel
during appellant's first postconviction proceeding.
ot4
Cherry
2
cc: Hon. Michael Villani, District Judge
Kevin Ray Holmes
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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