Costantino (Derek) v. State

 merit. NRS 193.165, at the time he was convicted, provided for "a term
equal to and in addition to the term of imprisonment prescribed by statute
for the crime. The sentence prescribed by this section runs consecutively
with the sentence prescribed by statute for the crime." 1991 Nev. Stat.,
ch. 403, § 6, at 1059. Appellant is lawfully confined and habeas relief is
not warranted as he has not completed serving the sentence for the deadly
weapon enhancement and has not been granted parole from the sentence
for the deadly weapon enhancement.
To the extent that appellant challenged the validity of the
judgment of conviction, appellant's petition was procedurally barred as the
petition was untimely filed (more than 17 years after issuance of the
remittitur from his direct appeal in Costantino v. State, Docket No. 28854
(Order Dismissing Appeal, February 26, 1997)), an abuse of the writ as
appellant raised claims new and different from those previously litigated
in prior petitions, 2 and appellant's arguments regarding NRS 193.165 and
the effect of his having expired the sentence for the primary offense did
not provide good cause to excuse the procedural defects. See NRS
34.726(1); NRS 34.810(2), (3); Hathaway v. State, 119 Nev. 248, 252, 71
P.3d 503, 506 (2003) (recognizing that good cause must afford a legal
excuse). Further, the petition was barred by NRS 34.800(2) because the
2 Costantino v. State, Docket Nos. 30734, 31276 (Order Dismissing
Appeals, December 10, 1999); Costantino v. State, Docket No. 42609
(Order of Affirmance, August 23, 2004); Costantino v. State, Docket No.
47986 (Order of Affirmance, January 8, 2007); Costantino v. State, Docket
Nos. 51868, 52048 (Order of Affirmance, January 8, 2009); Costantino v.
State, Docket Nos. 52565, 52566, 52596 (Order of Affirmance, May 1,
2009); Costantino v. State, Docket No. 56515 (Order of Affirmance,
January 13, 2011).
SUPREME COURT
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State specifically pleaded laches and appellant failed to overcome the
presumption of prejudice to the State.
To the extent that appellant challenged the computation of
time served and the application of statutory good time credits to the
enhancement sentence, appellant's petition was improperly filed in the
Eighth Judicial District Court as he is incarcerated in Ely State Prison
within the boundaries of the Seventh Judicial District Court. See NRS
34.738(1). Accordingly, we
ORDER the jirl,gment of the district court AFFIRMED. 3
at &5c
Parraguirre
J. CISLA," 'J.
ouglas
— Cherry
cc: Hon. Kathleen E. Delaney, District Judge
Derek Anthony Costantino
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 We have reviewed the documents attached to the notice of appeal,
and we conclude that no relief based upon those submissions is warranted.
To the extent that appellant has attempted to present amended claims or
facts in those submissions which were not previously presented to the
district court, we decline to consider them in the first instance. The
hearing conducted on August 27, 2014, was not an evidentiary hearing
and no parties were listed as being present. We conclude that the district
court did not abuse its discretion in not having appellant transported for
this hearing.
SUPREME COURT
OF
NEVADA
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(0) 1947A