appellant's petition was successive because he had previously filed
numerous post-conviction petitions for a writ of habeas corpus, and it
constituted an abuse of the writ as he raised claims new and different
from those raised in his previous petitions. 3 See NRS 34.810(1)(b)(2); MRS
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. MRS 34.800(2).
First, appellant claimed that he had good cause to overcome
the procedural bars because the district court deprived him of standby
counsel. This claim did not demonstrate good cause for filing a petition
five years late. Further, this claim was raised on direct appeal and was
rejected by this court. The doctrine of law of the case prevents further
litigation of this claim and "cannot be avoided by a more detailed and
precisely focused argument." Hall v. State, 91 Nev. 314, 315-16, 535 P.2d
797, 798-99 (1975). Therefore, the district court did not err in denying this
claim.
v. State, Docket No. 50612 (Order of Affirmance, May 15,
3Bacon
2008); Bacon v. State, Docket Nos. 53804, 53915 (Order of Affirmance,
October 21, 2009); Bacon v. State, Docket No. 55097 (Order of Affirmance,
July 22, 2010).
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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
would have been discretionary in the first post-conviction proceedings, see
NRS 34.750(1), but appellant did not request the appointment of counsel
to assist him in those proceedings. 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 sue sponte and the decision in Martinez would not provide good
cause for this late and successive petition.
Finally, appellant argued that he could overcome application
of the procedural bars because he was actually innocent. 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)); see also
Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001); Mazzan v.
Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). Further, appellant
failed to overcome the presumption of prejudice to the State. Therefore,
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we conclude that the district court did not err in denying appellant's
petition as procedurally barred, and we
ORDER the judgment of the district court AFFIRMED. 4
&ea-42;
Hardesty
J.
4 To the extent that appellant challenges the district court's finding
that he is a vexatious litigant, such a decision is not appealable. We note
that appellant may seek review of the vexatious-litigant finding in an
original petition for a writ of mandamus. See Peck v. Grouser, 129 Nev.
295 P.3d 586, 588 (2013).
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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cc: Hon. Jennifer P. Togliatti, District Judge
Percy Lavae Bacon
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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