commencement of the one-year deadline, appellant's claim does not
constitute good cause to excuse an untimely petition. Therefore, the
district court did not err in denying this claim.
Next, appellant claimed that he had cause for the delay
because replacement counsel refused to file a notice of appeal from the
judgment of conviction. Appellant failed to demonstrate that this claim
could not have been raised in a timely petition. Hathaway v. State, 119
Nev. 248, 252, 71 P.3d 503, 506 (2003). Appellant did not allege that he
believed counsel had filed an appeal and only recently learned that
counsel had not. See id. at 255, 71 P.3d at 508. In fact, he claimed that
counsel specifically refused to file the appeal. Therefore, the district court
did not err in denying this claim.
Next, appellant claimed that he had cause for the delay
because replacement counsel refused to file a petition for a writ of habeas
corpus and waited more than a year to withdraw as counsel in order to
prevent appellant from filing a timely petition, as appellant was unable to
file documents while represented. 2 Appellant failed to demonstrate that
2 To the extent that appellant claimed he had cause for the delay
because of inadequate legal assistance in that an inmate law clerk
informed appellant he could not file documents while represented,
appellant failed to demonstrate his claims could not have been raised in a
timely manner. See 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).
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an impediment external to the defense precluded him from raising this
claim in a timely manner. Id. at 252, 71 P.3d at 506. Further, appellant
waited more than eighteen months after the end of the one-year time
period to file a timely petition before filing his petition. Therefore, even
assuming counsel's alleged refusal to file a petition for a writ of habeas
corpus could be good cause, appellant failed to demonstrate cause for the
entire length of his delay. 3 Therefore, the district court did not err in
denying this claim.
Lastly, appellant claimed that he had cause for the delay
because replacement counsel did not send appellant his case file until
seven months after counsel withdrew. Appellant failed to demonstrate
cause because counsel's alleged failure to provide appellant with his file
would not have prevented appellant from filing a timely petition. Hood v.
State, 111 Nev. 335, 338, 890 P.2d 797, 798 (1995). Further, appellant
waited more than six months after the end of the one-year time period for
filing a timely petition before petitioning the district court for the
production of documents from his former counsel. Therefore, even
assuming the lack of a case file could be good cause, appellant failed to
demonstrate cause for the entire length of his delay, and the district court
3 Even assuming, as appellant claimed and as is addressed infra,
that the delay in receiving his case file demonstrated good cause for the
delay, appellant failed to demonstrate cause for the entire length of his
delay.
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did not err in denying the petition as procedurally barred. 4 Accordingly,
we
ORDER the judgment of the district court AFFIRMED. 5
tlei4 J.
Pickering
Saitta
cc: Hon. Jennifer P. Togliatti, District Judge
Mark Robert Collins
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
4We conclude that the district court did not abuse its discretion in
declining to appoint counsel for the instant petition. See NRS 34.750(1).
5We 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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