Gayler (Brandyn) v. State ( 2015 )

 In an attempt to excuse his procedural defects, Gayler
asserted that he did not discover the factual basis of his claim—that no
original judgment of conviction had been entered in his case—until the
State pointed it out during the proceedings on his first post-conviction
petition. We conclude that Gayler failed to demonstrate good cause, as he
could have ascertained the absence of an original judgment of conviction
before he filed his first post-conviction petition. See Hathaway v. State,
119 Nev. 248, 253, 71 P.3d 503, 506 (2003). In addition, Gayler failed to
demonstrate prejudice because this court has already concluded that his
underlying claim—that thefl district court lacked jurisdiction to revoke
probation, sentence him to a term of imprisonment, and enter an amended
judgment of conviction because no original judgment of conviction had
been entered in his case—lacked merit. 3 Gayler v. State, Docket No 65306
(Order of Affirmance, September 17, 2014); Miller v. Hayes, 95 Nev. 927,
929, 604 P.2d 117, 118 (1979) (stating that a district court's oral
pronouncement is not final and may be modified before a written order is
filed).
Next, Gayler claimed that relief is warranted based on United
States v. Levitt, 799 F.2d 505 (9th Cir. 1986). A decision from 1986 was
reasonably available to Gayler when he filed his first petition and does not
constitute good cause for this late, successive petition. See Hathaway, 119
3 The
absence of an original judgment of conviction also had no
impact on Gayler's ability to litigate his first post-conviction petition.
Because his first petition was filed within a year of entry of the amended
judgment of conviction, this court deemed it timely filed and considered
his claims on the merits. See Gayler v. State, Docket No. 64980 (Order of
Affirmance, July 22, 2014).
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Nev. at 253, 71 P.3d at 506. Gayler also appeared to contend that relief
was warranted in light of a recent news article about a false imprisonment
lawsuit, which indicates that a valid judgment of conviction is required
before a person can be imprisoned. This news article does not provide a
factual or legal basis for his underlying claims and thus cannot constitute
good cause to overcome the procedural bars. Finally, while Gayler claimed
that he could not have discovered the factual basis of his claim earlier due
to "some interference by officials," he provided no factual allegations in
support of an "official interference" claim. See Hathaway, 119 Nev. at 252,
71 P.3c1 at 506. Accordingly, we conclude that the district court did not err
in denying the petition as procedurally barred, and we
ORDER the judgment of the district court AFFIRMED.
(AAA et-
Parraguirre
c—DOLA-0 1)re , J.
Douglas
, J.
cc: Chief Judge, The Eighth Judicial District Court
Hon. J. Charles Thompson, Senior Judge
Brandyn William Gayler
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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