Brown (Beau) v. Warden ( 2014 )

 barred absent a demonstration of good cause and actual prejudice. See
NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3). Moreover, because the
State specifically pleaded laches, appellant was required to overcome the
rebuttable presumption of prejudice. NRS 34.800(2). A petitioner may be
entitled to review of defaulted claims if failure to review the claims would
result in a fundamental miscarriage of justice. Mazzan u. Warden, 112
Nev. 838, 842, 921 P.2d 920, 922 (1996). In order to demonstrate a
fundamental miscarriage of justice, a petitioner must make a colorable
showing of actual innocence of the crime. Pellegrini v. State, 117 Nev. 860,
887, 34 P.3d 519, 537 (2001).
Appellant first claimed that the petition was timely filed
because it was filed while the appeal was pending on the first petition.
The district court did not err in rejecting this claim. NRS 34.726(1)
provides two triggers for the timely filing of a post-conviction petition for a
writ of habeas corpus: entry of a judgment of conviction or issuance of
remittitur in the timely direct appeal. No tolling motions or petitions are
recognized in NRS chapter 34 in regards to the filing of a timely post-
conviction petition for a writ of habeas corpus.
Second, appellant claimed that he had good cause because the
constitutional errors complained of were not raised in the first habeas
petition because the State withheld evidence. The district court did not
err in rejecting this claim. Appellant did not identify the evidence
withheld by the State, see Hargrove v. State, 100 Nev. 498, 686 P.2d 222(1984), and appellant failed to explain how the unidentified, allegedly
withheld evidence prevented him from litigating his claims in his 2010
petition. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506
(2003); see also State v. Huebler, 128 Nev. 275 P.3d 91, 95 (2012).
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Third, appellant claimed that the factual and legal basis of his
claims was not available until this court's decision in Hallmark v.
Eldridge, 124 Nev. 492, 189 P.3d 646 (2008). The district court did not err
in rejecting this claim. Appellant did not explain how the decision in
Hallmark applied to him. Further, even if the Hallmark decision allowed
for new claims to be raised in a successive petition, appellant's petition
was filed more than two years after the Hallmark decision and he failed to
explain the entirety of his delay.
Fourth, appellant claimed that he had good cause because his
claims were new and different from those raised in the first petition.
While this point is debatable given the similarities of the claims previously
litigated on direct appeal and in the first petition, the fact that appellant
raised new claims does not provide good cause for a late and successive
petition. See NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(2), (3).
Fifth, appellant claimed that he was not allowed to raise these
claims earlier because he was represented by counsel. Related to this,
appellant claimed that the decision in Martinez v. Ryan, 566 U.S. , 132
S. Ct. 1309 (2012), provided good cause because post-conviction counsel
failed to raise the claims identified in his 2010 petition. The district court
did not err in rejecting this claim. The fact that appellant could not raise
claims in proper person supplements does not constitute good cause
because it is not an impediment external to the defense. See Lozada v.
State, 110 Nev. 349, 353, 871 P.2d 944, 946 (1994). Ineffective assistance
of post-conviction counsel would not be good cause in the instant case
because the appointment of counsel in the prior post-conviction
proceedings was not statutorily or constitutionally required. Crump v.
Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997); McKague v. Warden,
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112 Nev. 159, 164, 912 P.2d 255, 258 (1996). Further, this court has
recently held that Martinez does not apply to Nevada's statutory post-
conviction procedures, see Brown v. McDaniel, 130 Nev. , P.3d
(Adv. Op. No. 60, August 7, 2014), and thus, Martinez does not provide
good cause for this late and successive petition.
Next, appellant appeared to claim that he was actually
innocent. Appellant did not demonstrate actual innocence 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) (quoting Schlup v. Delo, 513 U.S. 298,
327 (1995)). We therefore conclude that the district court did not err in
denying appellant's petition. Finally, appellant failed to rebut the
presumption of prejudice to the State. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Hardesty
3
Douglas 0074
, J.
CHERRY, J., concurring:
Although I would extend the equitable rule recognized in
Martinez to this case because appellant was convicted of murder and is
facing a severe sentence, see Brown v. McDaniel, 130 Nev. P.3d
(Adv. Op. No 60, August 7, 2014) (Cherry, J., dissenting), I concur in
the judgment on appeal in this case because the State pleaded laches
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under NRS 34.800(2) and appellant failed to rebut the presumption of
prejudice to the State.
Cherry
cc: Hon. Connie J. Steinheimer, District Judge
Beau E.Z. Brown
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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