Stonebarger (Harold) v. State

 First, appellant asserts he has good cause to overcome the
procedural bars because the State withheld exculpatory DNA evidence.
Appellant asserts that recent testing excluded him as the source of DNA
found on the victim's underpants. When a claim alleging withheld
exculpatory evidence is raised in an untimely and successive post-
conviction petition for a writ of habeas corpus, the petitioner has the
burden of demonstrating good cause and actual prejudice. State v.
Huebler, 128 Nev. „ 275 P.3d 91, 95 (2012), cert. denied, U.S.
133 S. Ct. 988 (2013). "[E]stablishing that the State withheld the
evidence demonstrates that the delay was caused by an impediment
external to the defense, and establishing that the evidence was material
generally demonstrates that the petitioner would be unduly prejudiced if
the petition is dismissed as untimely." Id. (footnote omitted) (citing State
v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003)).
Appellant fails to demonstrate that an impediment external to
the defense prevented him from raising this claim in a timely manner.
Appellant fails to demonstrate that any evidence related to the victim's
underpants was actually withheld as appellant fails to demonstrate that
this evidence would not have been available to him through diligent
investigation by the defense. See id. at n.11, 275 P.3d at 100 n.11
(citing Steese u. State, 114 Nev. 479, 495, 960 P.2d 321, 331 (1998)). At the
time appellant entered his guilty plea, he was in possession of reports
showing that the State had collected the victim's underpants and
appellant fails to demonstrate he could not have obtained that evidence in
order to perform forensic testing prior to entry of his plea. Therefore,
appellant fails to demonstrate that the State withheld evidence relating to
the victim's underpants.
Appellant also fails to demonstrate actual prejudice as
SUPREME COURT appellant fails to demonstrate a reasonable probability that he would have
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refused to plead guilty and would have insisted on going to trial had his
defense counsel sought DNA testing of evidence on the victim's clothing.
See id. at 275 P.3d at 98-99. The State's case was strong given the
victim's version of events and appellant's detailed confession, the DNA
evidence was not particularly persuasive as it fails to exonerate appellant
of guilt given the victim's allegations of the nature of the sexual acts,
appellant received a benefit from entry of the guilty plea as the number
and severity of the charges were reduced, and appellant indicated in the
guilty plea agreement and at the plea canvass that he entered the guilty
plea voluntarily and knowingly. See id. at , 275 P.3d at 99 (discussing
factors which may be considered when applying the materiality test).
Based on those factors, appellant fails to demonstrate that he would not
have pleaded guilty and would have insisted on going to trial had he
possessed the DNA evidence from the victim's underpants. Because
appellant fails to demonstrate that this evidence was material, he fails to
demonstrate that any error in the disclosure of the DNA evidence
prejudiced him. 3
Second, appellant asserts he has good cause to overcome the
procedural bars due to ineffective assistance of trial counsel. Appellant's
claim lacks merit because a procedurally barred claim of ineffective
assistance of trial counsel fails to demonstrate that there was an
impediment external to the defense that prevented him from raising his
claims in a timely manner. See Hathaway v. State, 119 Nev. 248, 252, 71
P.3d 503, 506 (2003).
3 The State argues that this court should not consider this claim
because it was not raised before the district court. However, a review of
appellant's petition and supporting documents reveals that this claim was
raised below.
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Third, relying in part on Martinez v. Ryan, 566 U.S. , 132
S. Ct. 1309 (2012), appellant argues that ineffective assistance of post-
conviction counsel excused his procedural defects. Ineffective assistance of
post-conviction counsel is not good cause in the instant case because the
appointment of counsel in the prior post-conviction proceedings was not
statutorily or constitutionally required. See Crump v. Warden, 113 Nev.
293, 303, 934 P.2d 247, 253 (1997); McKague v. Warden, 112 Nev. 159,
164-65, 912 P.2d 255, 258 (1996). In addition, appellant does not explain
the almost seven-year delay in raising claims challenging the performance
of his counsel for his first petition or why he could not raise such claims in
his second petition. See Hathaway, 119 Nev. at 252, 71 P.3d at 506.
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), and thus,
Martinez does not provide good cause for this late and successive petition.
Fourth, appellant argues that the DNA evidence demonstrates
that he is actually innocent. We note that the Ninth Circuit Court of
Appeals has already rejected appellant's claim of actual innocence.
Stonebarger v. Williams, 458 Fed. App'x. 627 (9th Cir. 2011). We agree
with the Ninth Circuit. As discussed previously, the DNA evidence is not
particularly persuasive given the victim's allegations and appellant's
detailed confession. Therefore, he failed to show that "'it is more likely
than not that no reasonable juror would have convicted him in light of . . .
new evidence." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini v. State, 117
Nev. 860, 887,34 P.3d 519, 537 (2001); Mazzan v. Warden, 112 Nev. 838,
842, 921 P.2d 920, 922 (1996). Accordingly, the district court did not err in
dismissing the petition as procedurally barred.
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Next, appellant argues that the district court erred in
dismissing his petition without conducting an evidentiary hearing. To
warrant an evidentiary hearing, a petitioner must raise claims that are
supported by specific factual allegations that are not belied by the record
and, if true, would entitle him to relief. Hargrove v. State, 100 Nev. 498,
502-03, 686 P.2d 222, 225 (1984). As discussed previously, appellant did
not raise claims which would have entitled him to relief. Therefore, the
district court did not err in dismissing the petition without conducting an
evidentiary hearing.
Appellant also fails to overcome the presumption of prejudice
to the State because he fails to demonstrate a fundamental miscarriage of
justice. See NRS 34.800(1)(b). Therefore, the district court did not err in
dismissing the petition as procedurally barred and barred by laches.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
&LA
Hardesty
'-/3,077€11 J. J.
Douglas
cc: Hon. Stefany Miley, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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