Phillips (Vornelius) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
VORNELIUS JAMAL PHILLIPS, No. 68281
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. APR 1 5 2016
TRACE K LFLIDEMAN
CLERK F SUPREME COURT
DEPUTY CLERK
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order denying
appellant's postconviction petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Elissa F. Cadish, Judge.
Appellant filed his petition' on February 5, 2014, more than 9
years after his judgment of conviction was entered on April 27, 2004.
Thus, appellant 's petition was untimely filed. See NRS 34.726. The
petition was also successive because appellant had previously sought
postconviction relief. 2 See NRS 34.810(2). Accordingly, the petition was
"Appellant originally filed a "motion for sentence modification and/or
motion to withdraw plea (based on a manifest injustice). " This court
directed the district court to construe the motion as a postconviction
petition for a writ of habeas corpus. See Phillips v. State, Docket No.
65584 (Order Affirming in Part, Reversing in Part, and Remanding,
November 13, 2014).
2 Phillips State, Docket No. 52692 (Order of Affirmance and
V.
Limited Remand to Correct the Judgment of Conviction, March 10, 2010).
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procedurally barred absent a demonstration of good cause and prejudice.
See NRS 34.726(1); NRS 34.810(3). Further, because the State pleaded
laches, appellant was required to overcome the presumption of prejudice
to the State. See NRS 34.800.
As good cause, appellant contends that he was incompetent
when he pleaded guilty due to his intellectual disability (mental
retardation) and mental illness, and counsel was ineffective for allowing
him to plead guilty. Appellant fails to demonstrate good cause and
prejudice. See Phelps v. Director, Prisons, 104 Nev. 656, 660, 764 P.2d
1303, 1306 (1988) (holding that petitioner's claim of organic brain damage,
borderline mental retardation and reliance on assistance of inmate law
clerk unschooled in the law did not constitute good cause for the filing of a
successive postconviction petition). 3 Appellant also asserts that failure to
review the claims would result in a fundamental miscarriage of justice.
See Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996)
(explaining that a court can consider procedurally defaulted claims when
failing to do so would result in a fundamental miscarriage of justice).
Specifically, appellant argues that he killed the victim by strangling her
and therefore did not commit first-degree murder with the use of a deadly
weapon. This claim lacks merit because appellant failed to offer new
evidence of actual innocence. Calderon v. Thompson, 523 U.S. 538, 559
(1998) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Finally,
3We note that this claim is substantially similar to that raised in the
prior petition.
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appellant failed to overcome the presumption of prejudice to the State. 4
Therefore, we
ORDER the judgment of the district court AFFIRMED.
V.
nrmi
H. a3_
d‘li J.
Douglas '
OvAt J.
Cherry
, J.
bons
cc: Hon. Elissa F. Cadish, District Judge
Vornelius Jamal Phillips
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
4We conclude that the district court did not err by denying
appellant's request for counsel. See NRS 34.750(1).
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