new and different from those raised in his previous petition. 3 See 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(3). Moreover, because the State specifically pleaded laches,
appellant was required to overcome the rebuttable presumption of
prejudice. NRS 34.800(2).
First, appellant claimed that he has good cause to overcome
the procedural bars because the State withheld a jail incident report that
indicated he was taking medication. Appellant failed to demonstrate good
cause or prejudice. While withholding of evidence may be good cause to
overcome procedural bars, appellant failed to demonstrate that any
evidence was withheld or that it was material. See State v. Huebler, 128
Nev. , 275 P.3d 91, 95 (2012) (recognizing that a Brady claim
raised in an untimely petition requires the petitioner to demonstrate that
the State withheld evidence (to demonstrate cause) and to establish that
the evidence was material (to demonstrate prejudice)). According to the
jail incident report, appellant was the one who reported to the jail
personnel that he was taking medication. Therefore, appellant was aware
of the "material" evidence he claimed was withheld. Further, the jail
incident report is for an incident that occurred after sentencing and he
failed to demonstrate how his taking medication after sentencing was
3Balboni v. Warden, Docket No. 57262 (Order of Affirmance, June 8,
2011).
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material to his case. Therefore, the district court did not err in denying
this claim.
Second, appellant claimed that the State withheld exculpatory
evidence regarding the victim. Appellant failed to demonstrate good cause
because he failed to demonstrate that this evidence was withheld. See id.
Appellant has previously raised claims regarding the victim, her
statements to police, and her possible recantations of the incident.
Therefore, he failed to demonstrate that this evidence was withheld by the
State, when he received the information, or why he could not have raised
this good cause claim in his prior petition. 4 Hathaway v. State, 119 Nev.
248, 252, 71 P.3d 503, 506 (2003). Therefore, the district court did not err
in denying this claim.
Third, appellant claimed that he had good cause because trial
counsel failed to file an appeal from his judgment of conviction. Appellant
failed to demonstrate good cause because he knew in 2007 that counsel did
not file a direct appeal, and he previously filed a post-conviction petition in
2009 where he acknowledged that counsel did not file a direct appeal.
Therefore, he failed to demonstrate good cause for the entire length of his
delay. Id. at 254-55, 71 P.3d at 507-08. Accordingly, the district court did
not err in denying this claim.
Finally, appellant claimed that he was actually innocent and
that this would overcome the procedural bars. Appellant raised this exact
4See Balboni v. Warden, Docket No. 57262 (Order of Affirmance,
June 8, 2011).
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claim of actual innocence in his previous petition. Balboni v. Warden,
Docket No. 57262 (Order of Affirmance, June 8, 2011). This court
concluded that appellant failed to demonstrate actual innocence.
Therefore, this claim was barred by the doctrine of law of the case. See
Hall v. State, 91 Nev. 314, 535 P.2d 797 (1995).
Based on the foregoing, we conclude that appellant failed to
demonstrate good cause and prejudice to overcome the procedural bars,
and he failed to overcome the presumption of prejudice to the State.
Accordingly, the district court did not err in denying the petition as
procedurally barred, and we
ORDER the judgment of the district court AFFIRMED. 5
J.
Hardest
ei
J.
Douglas
Cherry
5 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. Elliott A. Sattler, District Judge
Thomas J. Balboni, Jr.
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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