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). Based upon our
review of the record on appeal, we conclude that the district court did not
err in denying the petition as procedurally barred for the reasons
discussed below.
To the extent that appellant claimed that the ineffective
assistance of trial and/or appellate counsel provided good cause to excuse
his procedural defects, appellant's claim lacked merit. A claim of
ineffective assistance that is itself procedurally barred cannot constitute
good cause to excuse a procedural defect. Hathaway v. State, 119 Nev.
248, 252, 71 P.3d 503, 506 (2003).
To the extent that appellant claimed that this court's holding
in Bolden v. State, 121 Nev. 908, 124 P.3d 191 (2005), overruled by
Cortinas v. State, 124 Nev. 1013, 1016, 195 P.3d 315, 317 (2008), provided
good cause to excuse his procedural defects, appellant's claim lacked merit.
This court has previously held that Bolden will not excuse appellant's
procedurally barred petition, Houston v. State, Docket No. 55607 (Order of
Affirmance, November 8, 2010), and that holding is the law of the case.
Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975).
Finally, appellant claimed that he was actually innocent such
that the failure to consider his underlying claims on the merits would
result in a fundamental miscarriage of justice. 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
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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 pursuant to NRS
34.800(2). We therefore 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. 3
/
Hardesty
—11-1Cr
Douglas -
cc: Hon. Kathleen E. Delaney, District Judge
Horace Calvin Houston
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 The district court did not abuse its discretion in denying appellant's
request for the appointment of post-conviction counsel. See NRS 34.750.
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(9
Houston (Horace) v. State
Combined Opinion