Appellant's petition was procedurally barred absent a demonstration of
good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3).
Appellant first argued that he had good cause because of
newly discovered evidence that the state witnesses were threatened by the
police and wished to recant their statements. This argument failed to
demonstrate good cause. Although appellant asserted that this evidence
was newly discovered, appellant acknowledged that he knew the witnesses
were threatened and informed his counsel of this prior to entering his
plea. Thus, any claims based on the alleged recantations were reasonably
available to be raised in his first petition and do not provide good cause for
the instant petition. See Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d
503, 506 (2003).
Next, appellant, relying upon Martinez v. Ryan, 566 U.S.
132 S. Ct. 1309 (2012), argued that he had good cause because he was not
appointed counsel for the first post-conviction proceedings or the
proceedings on his post-conviction motion to withdraw a guilty plea. 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 or
provide an explanation for why he could not raise this claim earlier.
Further, this court has recently held that Martinez does not apply to
Nevada's statutory post-conviction procedures. See Brown v. McDaniel,
...continued
guilty plea. Richard v. State, Docket No. 57531 (Order of Affirmance,
June 8, 2011).
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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.
Accordingly, we
ORDER the judgment of the district court AFFIRMED. 3
AA;
Hardesty
Douglas
113/1 4
7 J.
J.
cc: Hon. Valorie J. Vega, District Judge
Antonio Richard
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 We 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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