See 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(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
was young when he committed the crime and did not have knowledge of
the law. These were insufficient to demonstrate good cause. See generally
Phelps v. Dir., Nev. Dep't of Prisons, 104 Nev. 656, 660, 764 P.2d 1303,
1306 (1988) (holding that petitioner's claim of organic brain damage,
borderline mental retardation, and reliance on assistance of inmate law
clerk unschooled in the law did not constitute good cause for the filing of a
successive post-conviction petition).
Second, appellant claimed that the procedural bars did not
apply because he was actually innocent. Appellant asserted that he was
actually innocent because of ineffective assistance of counsel, an
insufficient plea canvass, and because he was waiting in the vehicle when
the victim was shot and killed. As appellant pleaded guilty, he must
demonstrate not only that he is factually innocent of the charge to which
he pleaded guilty but that he is factually innocent of any more serious
charges forgone in the plea bargaining process. Bousley v. United States,
523 U.S. 614, 623-24 (1998). Appellant did not address actual innocence
regarding the multiple felony charges relinquished by the State during
negotiations. In addition, a petitioner must make a colorable showing of
actual innocence—factual innocence, not legal innocence. Pellegrini, 117
Nev. at 887, 34 P.3d at 537; Calderon v. Thompson, 523 U.S. 538, 559
(1998). Appellant's claims involved legal innocence and he did not
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demonstrate that his claim was based upon new evidence, and therefore,
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 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also
Pellegrini, 117 Nev. at 887, 34 P.3d at 537; Mazzan v. Warden, 112 Nev.
838, 842, 921 P.2d 920, 922 (1996).
Finally, appellant failed to overcome the presumption of
prejudice to the State. Therefore, the district court did not err in denying
the petition. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Ademah, • J.
Pickering
P aF
J.
eritta
cc: Hon. Elissa F. Cadish, District Judge
Phillip Minor
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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Minor (Phillip) v. State
Combined Opinion