Moraga (Roy) v. State

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).
Appellant neither argued that he had good cause nor
attempted to overcome the presumption of prejudice. Rather, he argued
that any procedural bars should be excused because he is actually
innocent since new technology exists to test DNA that was collected in the
case, and if it were tested, it would demonstrate that he did not commit
the sexual assault for which he was convicted. Anticipated but non-
existent test results are not evidence. Thus, 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 (1996). We therefore conclude that the
district court did not err in denying appellant's ineffective-assistance-of-
counsel claims as procedurally barred.
It appears that the district court may not have considered
appellant's remaining claim: that he ought to be granted permission to
test the DNA collected in this case. However, remand is unnecessary
because the claim is not cognizable in a post-conviction petition for a writ
of habeas corpus. Rather, appellant must submit his request on the form
designated by the Department of Corrections. NRS 176.0918; NDOC AR
571.

SUPREME COURT
OF
NEVADA
2
(0) 1947A .4ft11
For the foregoing reasons, we conclude appellant's petition is
without merit, and we
ORDER the judgment of the district court AFFIRMED. 3

J.
Har sty

Parraguirre

cc: Hon. Elissa F. Cadish, District Judge
Roy D. Moraga
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk

3We 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.