demonstration of good cause and actual prejudice. See NRS 34.726(1);
NRS 34.810(1)(b); NRS 34.810(3). Moreover, because the State specifically
pleaded laches, appellant was required to overcome the rebuttable
presumption of prejudice. MRS 34.800(2).
Appellant claimed that his appellate and previous post-
conviction counsel did not properly raise and exhaust two claims, which
did not allow him to proceed in federal court on those two claims. That
counsel for appellant did not exhaust state remedies in appellant's earlier
court proceedings did not demonstrate that there was an impediment
external to the defense that should excuse the procedural bars. See
Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003); see also
Colley v. State, 105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989). Further,
appellant's argument regarding post-conviction counsel as good cause
lacked merit as appellant had no statutory right to post-conviction
counsel, and thus the ineffective assistance of post-conviction counsel does
not provide good cause for a successive and untimely petition. See
McKague v. Warden, 112 Nev. 159, 164-65 & n.5, 912 P.2d 255, 258 & n.5
(1996); Crump v. Warden, 113 Nev. 293, 303 & n.5, 934 P.2d 247, 253 &
n.5 (1997); see also Brown v. McDaniel, 130 Nev. , P.3d 2
(Adv. Op. No. 60, August 7, 2014) (explaining that post-conviction
counsel's performance does not constitute good cause to excuse the
procedural bars unless the appointment of post-conviction counsel was
mandated by statute); Coleman v. Thompson, 501 U.S. 722, 755-757 (1991)
(holding that petitioner did not have a "constitutional right to counsel on
appeal from the state habeas trial court judgment" and that a claim of
ineffective assistance of counsel during state habeas appellate proceedings
does not constitute cause to excuse the procedural defects).
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Finally, appellant failed to overcome the presumption of
prejudice to the State. Therefore, the district court did not err in
dismissing the petition as procedurally barred and barred by laches.
Accordingly, we
ORDER the judgment of the district court AFFIRMED. 3
J.
Hardesty
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
3 We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter and the State's
opposition to appellant's motion to vacate conviction, 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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under NRS 34.800(2) and appellant failed to rebut the presumption of
prejudice to the State.
cc: Hon. Nancy L. Porter, District Judge
Mark Anthony Hanson
Attorney General/Carson City
Elko County District Attorney
Elko County Clerk
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