pleaded laches, appellant was required to overcome the rebuttable
presumption of prejudice. NRS 34.800(2).
First, appellant claimed he had good cause pursuant to Lafler
v. Cooper, 566 U.S. , 132 S. Ct. 1376 (2012), and Missouri v. Frye, 566
U.S. , 132 S. Ct. 1399 (2012), because counsel was ineffective.
Appellant failed to support this claim with specific facts that, if true,
would entitle him to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686
P.2d 222, 225 (1984). Further, appellant's good cause argument was
without merit because these claims of ineffective assistance of counsel
were always available to be raised and appellant failed to demonstrate
why he waited eight years to raise them. Further, because his case was
final when Lafler and Frye were decided, he failed to demonstrate that the
cases would apply retroactively to him. Even if Lafler and Frye announced
new rules of constitutional law, he failed to allege facts that meet either
exception to the general principle that such rules do not apply
retroactively to cases which were already final when the new rules were
announced. See Colwell v. State, 118 Nev. 807, 816-17, 59 P.3d 463, 469-
70 (2002). Therefore, the district court did not err in denying this claim.
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
was discretionary in the first post-conviction proceedings, see MRS
34.750(1), and appellant failed to demonstrate an abuse of discretion.
Further, this court has recently held that Martinez does not apply to
Nevada's statutory post-conviction procedures. See Brown v. McDaniel,
Nev. , 331 P.3d 867 (2014). Thus, the failure to appoint post-
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conviction counsel and the decision in Martinez would not provide good
cause for this late and successive petition.
Finally, appellant argued he could overcome the procedural
defects 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). 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
, J.
Pickering
J.
Pailraguirre
SAITTA, J., concurring:
Although I would extend the equitable rule recognized in
Martinez to this case because appellant was convicted of murder and is
3 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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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
under NRS 34.800(2) and appellant failed to rebut the presumption of
prejudice to the State.
J.
cc: Hon. James M. Bixler, District Judge
Miguel Reyes-Carreon
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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