Mortensen (Ronald) v. State ( 2014 )

 34.810(1)(b)(2); NRS 34.810(2). Appellant's petition was procedurally
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).
First, appellant claimed that he had good cause because he
had unexhausted claims. Exhaustion of claims in order to seek federal
court review does not demonstrate good cause. See Colley v. State, 105
Nev. 235, 236, 773 P.2d 1229, 1230 (1989); see also Edwards v. Carpenter,
529 U.S. 446, 452-53 (2000). To the extent that appellant argued he had
good cause because he was not given an evidentiary hearing on all of the
claims raised in the first petition, the underlying claim, that the district
court erred in not conducting an evidentiary hearing on all of his claims,
was considered and rejected by this court on appeal from the denial of his
first petition. The determination that the district court did not err in
denying some of his claims without an evidentiary hearing is the law of
the case, and the doctrine of the law of the case prevents further litigation
of this issue. See Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975). To the
extent that appellant claimed that he had good cause because the district
court's order had been drafted by the State, this claim did not provide good
cause as he could have litigated this issue in the appeal from the denial of
his first petition. Likewise, appellant's claim that the district court judge
was biased in the first post-conviction proceedings falls short of
demonstrating good cause as it too could have been raised in the appeal
from the denial of his first petition.
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Next, appellant appeared to claim that he had good cause
because he received ineffective assistance of trial and appellate counsel.
These claims were reasonably available to be raised in a timely petition
and ineffective assistance-of-counsel claims that are themselves
procedurally barred cannot establish good cause. 3 Hathaway v. State, 119
Nev. 248, 252-53, 71 P.3d 503, 506 (2003); see also Edwards v. Carpenter,
529 U.S. 446, 453 (2000).
Next, relying in part on Martinez v. Ryan, 566 U.S. , 132 S.
Ct. 1309 (2012), appellant argued that ineffective assistance of post-
conviction counsel excused his procedural defects. 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,
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, Nev. , P.3 d
(Adv. Op. No. 60, August 7, 2014), and thus, Martinez does not provide
good cause for this late and successive petition.
3 We note that appellant was informed of the limited right to appeal
in the guilty plea agreement. See Davis v. State, 115 Nev. 17, 974 P.2d
658 (1999).
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Next, appellant argued that his petition was not delayed
because he had continuously litigated the validity of his conviction.
Continuous litigation is not good cause for a late and successive petition.
Finally, appellant claimed that laches should not bar his
petition because the State was not prejudiced by the thirteen-year delay.
Because the State pleaded laches pursuant to NRS 34.800(2), the State
was not required to demonstrate prejudice; rather, a rebuttable
presumption exists that there is prejudice to the State in either
responding to the petition or in conducting a retrial. Rebutting the
presumption of prejudice requires appellant to demonstrate that the
"petition is based upon grounds of which the petitioner could not have had
knowledge by the exercise of reasonable diligence before the circumstances
prejudicial to the State occurred," MRS 34.800(1)(a), and show a
fundamental miscarriage of justice has occurred in the proceedings
resulting in the judgment of conviction or sentence, MRS 34.800(1)(b).
Appellant's bald assertion that there was no prejudice or that any
prejudice was the fault of the State falls far short of rebutting the
presumption of prejudice. And to the extent that appellant claimed that
he demonstrated a fundamental miscarriage of justice because 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)); 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
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(1996). We therefore conclude that the district court did not err in denying
appellant's petition as procedurally barred and barred by ladies.
Accordingly, we
ORDER the judgment of the district court AFFIRMED. 4
/ PetAin J.
Hardesty
Douglas
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
4 We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
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under NRS 34.800(2) and appellant failed to rebut the presumption of
prejudice to the State.
J.
cc: Hon. Jennifer P. Togliatti, District Judge
Ronald Lawrence Mortensen
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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