Dreyfuss (Philip) v. State

 postconviction habeas petition. Appellant's claims were therefore
reasonably available to be raised in a timely petition.
Further, appellant has not demonstrated that any
"impediment external to the defense prevented him" from filing a timely
petition. Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506
(2003). Appellant's argument that it was counsel's fault is unavailing as
counsel is clearly part of "the defense." Nor was the filing of the motion
for new trial good cause because it did not prevent the filing of a timely
postconviction habeas petition. Cf. Colley v. State, 105 Nev. 235, 236, 773
P.2d 1229, 1230 (1989) (holding that choosing to pursue federal habeas
relief first is not good cause for a delay in pursuing state postconviction
relief). Finally, the State's actions did not impede appellant's ability to file
a timely postconviction petition. Although the State did not seek a writ to
prohibit the district court from conducting an evidentiary hearing on the
motion for new trial until after the filing deadline for a timely petition, it
had announced its intention to seek a writ at a hearing on August 10,
2011, more than two months before the deadline. Further, the State's
suggestion at the August 3, 2011, hearing that a postconviction habeas
petition was the appropriate remedy did not bar the State from
subsequently seeking to dismiss the petition as procedurally barred where,
even had the State made any representation about procedural bars, their
application is mandatory. State v. Eighth Judicial Dist. Court, 121 Nev.
225, 231, 112 P.3d 1070, 1074 (2005); see also State v. Haberstroh, 119
Nev. 173, 181, 69 P.3d 676, 682 (2003) (holding that parties may not
stipulate to disregard procedural bars).
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For the foregoing reasons, we conclude that the district court
did not err in denying the petition as procedurally barred without first
conducting an evidentiary hearing, and we
ORDER the judgment of the district court AFFIRMED.
, C.J.
Hardesty
teag=
Parraguirr e 46 .1
J.
LA-1 I 4--3
Douglas
cc: Hon. David B. Barker, District Judge
Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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