Armstead (Joe) v. State

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). Appellant first claimed that he had good cause because he had been challenging his conviction in federal proceedings. We conclude that the district court did not err in denying this claim. The pursuit of federal habeas relief does not constitute good cause to excuse a late and successive petition in Nevada. See Colley v. State, 105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989). Appellant next claimed that he had good cause because he was not represented by counsel during the first post-conviction proceedings. Appellant claimed that the decision in Martinez v. Ryan, 566 U.S. 132 S. Ct. 1309 (2012), provided good cause because the lack of assistance of post-conviction counsel prevented him from complying with post- conviction procedures. We conclude that the district court did not err in denying this claim. Appellant's reliance upon Martinez was misplaced as Martinez relates to federal procedural bars and not state procedural bars. Thus, the holding in Martinez would not provide good cause because it is inapplicable in state court. Further, as appellant never requested counsel in the first post-conviction proceedings, he cannot complain of the failure to appoint counsel in those proceedings. Finally, appellant failed to overcome the presumption of prejudice to the State. Accordingly, we ORDER the judgment of the district court AFFIRMED. J. SUPREME COURT Parraguirre Cherry OF NEVADA 2 (0) I947A cc: Hon. Valorie J. Vega, District Judge Joe Kelly Armstead Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk 3