Duarte (Pedro) v. State

from those raised in his previous petition. 2 See NRS 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).
First, appellant, relying on the decisions in Sharma v. State,
118 Nev. 648, 56 P.3d 868 (2002), and Bolden v. State, 121 Nev. 908, 124
P.3d 191 (2005), argued he had good cause because he claimed these
decisions were not available at the time he filed his first post-conviction
petition. 3 This claim is belied by the record. Sharma was decided in 2002,
and Bolden was decided in 2005, and appellant did not file his first post-
conviction petition until June 23, 2006. Therefore, these claims were
available to be raised in his first timely post-conviction petition. Further,
appellant waited nearly three years after Bolden was decided and nearly
six years after Sharma was decided to file these claims and failed to
demonstrate good cause for the entire length of his delay. Therefore, the
district court did not err in denying this claim.
Next, appellant claimed that he was actually innocent because
had he not received the jury instructions disapproved of in Sharma and
Bolden, he would not have been convicted. Appellant's claim fell short of

2SeeDuarte v. State, Docket No. 49279 (Order Affirming in Part,
Reversing in Part, and Remanding, September 18, 2008); Duarte v. State,
Docket No. 58643 (Order of Affirmance, June 13, 2012).

3Appellantalso argued that Mitchell v. State, 122 Nev. 1269, 149
P.3d 33 (2006), provided good cause for filing his untimely petition.
However, this case does not provide good cause because it only applied
Sharma, and did not create new law or clarify existing law.

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demonstrating actual innocence because it is a claim of legal innocence,
not factual innocence, and appellant did not 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). Therefore, the district court did not err in
denying this claim.
Next, appellant claimed he was actually innocent because his
codefendant provided an affidavit that stated appellant was not involved
in the crime. 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, 523
U.S. at 559. The district court determined that appellant's codefendant
was not credible because he was a convicted felon 45 times over and he
was appellant's brother-in-law. We conclude that substantial evidence
supports the decision of the decision court to deny this claim. See Riley v.
State, 110 Nev. 638, 647, 878 P.2d 272, 278 (1994). Further, we note that
the affidavit filed in support of the petition was not dated nor was it
signed by appellant's co-defendant. Therefore, the district court did not
err in denying this claim.
Finally, appellant also appeared to argue he was actually
innocent based on the location of the water bottle and the fact that a
witness identified appellant's counsel as the driver of the vehicle rather
than appellant. These claims have been previously litigated, see Duarte v.
State, Docket No. 42256 (Order of Affirmance, June 15, 2005); Duarte v.

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State, Docket No. 49279 (Order Affirming in Part, Reversing in Part, and
Remanding, September 18, 2008), and the doctrine of law of the case
prevents further litigation of these issues, see Hall v. State, 91 Nev. 315-
16, 535 P.2d 797, 798-99 (1975). We therefore conclude that the district
court did not err in denying appellant's petition, and we
ORDER the judgment of the district court AFFIRMED.

J.
Douglas

efil J.
Saitta

cc: Hon. Jennifer P. Togliatti, District Judge
Pedro Rafael Duarte
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk