demonstration of good cause and actual prejudice. See NRS 34.726(1);
NRS 34.810(3). A petitioner may be entitled to review of defaulted claims
if failure to review the claims would result in a fundamental miscarriage
of justice. Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996).
In order to demonstrate a fundamental miscarriage of justice, a petitioner
must make a colorable showing of actual innocence of the crime.
Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
First, appellant claimed that the procedural bars did not apply
because he was raising jurisdictional claims. Appellant's claims did not
implicate the jurisdiction, personal or subject matter, of the court. See
Nev. Const. art. 6, § 6; NRS 171.010. Therefore, the procedural bars
applied to appellant.
Second, appellant claimed that the time to file a petition was
tolled while he was litigating his first petition. The district court did not
err in rejecting this claim. NRS 34.726(1) provides two triggers for the
timely filing of a post-conviction petition for a writ of habeas corpus: entry
of a judgment of conviction or issuance of remittitur in the timely direct
appeal. No tolling motions or petitions are recognized in NRS chapter 34
in regards to the filing of a timely post-conviction petition for a writ of
habeas corpus.
Third, appellant claimed that he was not provided notice in
the Nevada Revised Statutes that he was required to set forth all of his
claims for relief in his first petition. The district court did not err in
rejecting this claim. NRS chapter 34 adequately provided notice that all
claims were to be litigated in the first petition. See NRS 34.735 ("You
must include all grounds or claims for relief which you have regarding
your conviction or sentence. Failure to raise all grounds in this petition
may preclude you from filing future petitions challenging your conviction
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and sentence."); NRS 34.810 (2), (3) (providing that absent a showing of
good cause and actual prejudice, a petition must be dismissed if the
petition is the second or successive petition raising claims previously
decided on the merits or raises new and different grounds for relief).
Appellant's lack of legal knowledge about the filing requirements was not
an impediment external to the defense. See Lozada v. State, 110 Nev. 349,
353, 871 P.2d 944, 946 (1994).
Next, relying in part on Martinez v. Ryan, 566 U.S. , 132 S.
Ct. 1309 (2012), appellant argued that he had good cause because he was
not appointed counsel in the first post-conviction proceedings. We
conclude that this argument lacked merit. The appointment of counsel
was discretionary in the first post-conviction proceedings, see NRS
34.750(1), and appellant failed to demonstrate an abuse of discretion.
Further, this court has recently held Martinez does not apply to Nevada's
statutory post-conviction procedures. See Brown v. McDaniel, Nev.
P.3d (Adv. Op. No. 60, August 7, 2014). Thus, the failure to
appoint post-conviction counsel and the decision in Martinez would not
provide good cause for this late and successive petition.
Finally, appellant claimed that a fundamental miscarriage of
justice excused his procedural defects because he allegedly suffered
various constitutional violations. 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)). We therefore conclude that the district court
did not err in denying appellant's petition as procedurally barred.
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Motion to correct an illegal sentence
In his motion filed on November 16, 2012, appellant claimed
his sentence was illegal and the district court lacked jurisdiction because
the district court failed to first pronounce a sentence on the primary
offense before adjudicating him a habitual criminal. Despite the fact that
appellant labeled his claims as involving jurisdiction and an illegal
sentence, appellant's claim fell outside the narrow scope of claims
permissible in a motion to correct an illegal sentence. See Edwards v.
State, 112 Nev. 704, 708, 918 P.2d 321, 324 (1996). Therefore, without
considering the merits of any of the claims raised in the motion, we
conclude that the district court did not err in denying the motion.
Accordingly, we
ORDER the judgment of the district court AFFIRMED. 3
J.
Hardesty
;1917%
Douglas
4a J.
Cherry
3We conclude that the district court did not err in denying
appellant's motion for constitutional protection and motion to preclude ex-
parte communication.
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cc: Hon. Jessie Elizabeth Walsh, District Judge
Ian Armese Woods
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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