different from those raised in his previous petition. 2 See NRS
34.810(1)(b)(2); NRS 34.810(2). Appellant's petition was procedurally
barred absent a 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. NRS 34.800(2).
First, relying in part on Martinez v. Ryan, 566 U.S. , 132 S.
Ct. 1309 (2012), appellant claimed that ineffective assistance of post-
conviction counsel excused his procedural defects. Ineffective assistance of
post-conviction counsel would not be good cause in the instant case
because the appointment of counsel in the prior post-conviction
proceedings was not statutorily or constitutionally required. Crump v.
Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997); McKague v. Warden,
112 Nev. 159, 164, 912 P.2d 255, 258 (1996). Further, this court has
recently held that Martinez does not apply to Nevada's statutory post-
conviction procedures, see Brown v. McDaniel, 130 Nev. , P.3d
(Adv. Op. No. 60, August 7, 2014), and thus, Martinez does not
provide good cause for this late and successive petition.
Second, appellant claimed that he has good cause because he
needed to exhaust state remedies in order to proceed in federal court.
Exhaustion of state remedies in order to pursue relief in federal court did
not demonstrate that there was an impediment external to appellant's
2Escobar v. State, Docket No. 53502 (Order of Affirmance,
September 29, 2010).
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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).
Finally, appellant failed to overcome the presumption of
prejudice to the State. Therefore, the district court did not err in denying
the petition. Accordingly, we
ORDER the judgment of the district court AFFIRMED.'
Hardesty
A cc.t.e.; , J.
D
/
j'I'
-,-, .074: 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
'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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under NRS 34.800(2) and appellant failed to rebut the presumption of
prejudice to the State.
cc: Hon. Elissa F. Cadish, District Judge
Carlos Antonio Escobar
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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