pleaded laches, appellant was required to overcome the rebuttable
presumption of prejudice. NRS 34.800(2).
First, appellant claimed that he had good cause to overcome
the procedural bars because counsel failed to file a direct appeal from his
judgment of conviction. Appellant failed to demonstrate good cause
because he knew in 1994 that counsel did not file a direct appeal. He
could have raised this claim in his 1994 petition and failed to demonstrate
good cause for the entire length of his delay. Hathaway v. State, 119 Nev.
248, 254-55, 71 P.3d 503, 507-08 (2003). Therefore, the district court did
not err in denying this claim.
Second, 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 that 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 he was actually innocent of the
deadly weapon enhancement. Appellant previously raised this exact claim
in a motion to modify or correct. See Luna v. State, Docket No. 45591
(Order of Affirmance, December 21, 2005). This court rejected that claim;
therefore, this claim is barred by the doctrine of law of the case. See Hall
v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798 (1995).
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Based on the forgoing, we conclude that appellant failed to
demonstrate good cause and prejudice to overcome the procedural bars,
and he failed to overcome the presumption of prejudice to the State.
Accordingly, the district court did not err in denying the petition as
procedurally barred, and we
ORDER the judgment of the district court AFFIRMED.
Hardesty
J.
Douglas
CHERRY, J., concurring:
Although I would extend the equitable rule recognized in
Martinez to this case because appellant was convicted of murder and is
facing a severe sentence, see Brown v. McDaniel, 130 Nev. , P.3d
(Adv. Op. No. 60, August 7, 2014) (Cherry, J., dissenting), I concur in
the judgment on appeal in this case because the State pleaded laches
under NRS 34.800(2) and appellant failed to rebut the presumption of
prejudice to the State.
J.
cc: Hon. Valorie J. Vega, District Judge
Juan Manuel Luna
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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