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Carpino (Joseph) v. State ( 2015 )


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  •                  v. Sandoval,
    503 F.3d 903 
    (9th Cir. 2007), and Chambers v. McDaniel,
    549 F.3d 1191 
    (9th. Cir. 2008), provided good cause to excuse the procedural
bars to his claims regarding his first-degree-murder jury instructions. But
see Nika v. State,
    124 Nev. 1272
    , 1289,
    198 P.3d 839
    , 851 (2008) (holding
that using the Kazalyni instruction prior to Byford was not error because
the instruction correctly stated Nevada law in effect at the time). This
court has already held that Byford, Polk, and Chambers do not constitute
good cause to overcome appellant's procedural bars.      Carpino v. State,
Docket No. 54500 (Order of Affirmance, June 9, 2010). That holding is the
law of the case and "cannot be avoided by a more detailed and precisely
focused argument subsequently made after reflection upon the previous
proceedings."   Hall v. State,
    91 Nev. 314
    , 315-16,
    535 P.2d 797
    , 798-99
(1975). 2 Further, Carpino filed this petition fourteen years after Byford
and seven years after      Polk.    Accordingly, Carpino has failed to
demonstrate good cause to overcome the procedural bar. NRS 34.726(1).
Additionally, Carpino's actual innocence argument lacks merit
because 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) (internal quotation marks
    1108 Nev. 67
    ,
    825 P.2d 578 
    (1992), receded from by
    Byford, 116 Nev. at 236-37
    , 994 P.2d at 714.
2Carpino fails to acknowledge that this court has already rejected
his argument for ineffective assistance of counsel because the instruction
was not error. Carpino v. State, Docket No. 54500 (Order of Affirmance,
June 9, 2010); see Strickland v. Washington,
    466 U.S. 668
    , 687-88 (1984)
(holding that an ineffective assistance of counsel claim requires, in part,
that counsel's conduct was deficient);
    Nika, 124 Nev. at 1289
    , 198 P.3d at
851.
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omitted); see also Pellegrini v. State,
    117 Nev. 860
    , 887,
    34 P.3d 519
    , 537
(2001). Carpino has not presented new evidence or any support for his
assertion of actual innocence. Moreover, he has failed to overcome the
presumption of prejudice to the State pursuant to NRS 34.800(2). We
therefore conclude that the district court did not err in denying Carpino's
petition as procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Gibboris                                  Pickering
cc:   Eighth Judicial District Court Dept. 20
Joseph M. Carpino
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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