Aytch (Martinez) v. State

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). First, appellant claimed that he had good cause because he received ineffective assistance of trial and appellate counsel. We conclude that this argument lacked merit. Claims of ineffective assistance of trial and appellate counsel were reasonably available to be raised in a timely petition and ineffective-assistance-of-counsel claims that are themselves procedurally barred cannot establish good cause. Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003); see also Edwards v. Carpenter, 529 U.S. 446,453 (2000). Second, 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. 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, 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. ...continued claims were previously litigated and appellant provided no cogent argument why he should be permitted to raise them again. SUPREME COURT OF NEVADA 2 (0) 1947A Third, appellant claimed that he had good cause because he had been litigating the validity of his conviction in federal court and was required to exhaust state court remedies. We conclude that this argument lacked merit. Litigating a petition in federal court and exhaustion of claims in order to seek federal court review do not provide good cause. See Colley v. State, 105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989); see also Edwards, 529 U.S. at 452-53. Therefore, we conclude that the district court did not err in denying this petition as procedurally barred. Accordingly, we ORDER the judgment of the district court AFFIRMED. J. Hardesty J. J. cc: Hon. Jennifer P. Togliatti, District Judge Martinez Smith Aytch Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk SUPREME COURT OF NEVADA 3 (0) 1947A eD