were untimely filed. See NRS 34.726(1). Moreover, appellant's petitions
were successive because he had previously litigated• a post-conviction
petition for a writ of habeas corpus on the merits, and it constituted an
abuse of the writ to the extent that he raised claims new and different
from those raised in his previous petition. 2 See NRS 34.810(1)(b)(2); NRS
34.810(2). Appellant's petitions were 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).
Appellant indicated that grounds 1, 2, and 3, and portions of 4
were previously litigated, but that he was raising them again so that error
could be assessed cumulatively. 3 This argument does not provide good
cause for re-litigating claims in a successive petition that this court has
previously determined to lack merit because there is simply no error to
2Lopez v. State, Docket No. 54256 (Order of Affirmance, September
10, 2010).
3 Grounds 1, 2, and 3 have clearly been presented to this court.
Citing to "portions" of ground 4 (ineffective assistance of counsel) as being
previously raised does not meet the pleading requirements of NRS 34.735,
and does not provide sufficient clarity for a determination of good cause
and prejudice under NRS 34.810. Appellant indicated that ground 4,
paragraphs 2, 3, 5, 6, and 7 were new grounds for relief—not previously
raised in state court. Ground 4 contains 45 paragraphs. The only grounds
considered as "new" are those specifically identified by appellant. If any
claims raised in the forty additional paragraphs contained a new ground
for relief, which was not identified by appellant as such, this court has not
considered the claim due to the insufficient pleading. And to be clear, we
have considered as claims previously raised before this court only those
claims actually argued in Lopez v. State, Docket No. 54256 (Order of
Affirmance, September 10, 2010). Any claims raised in the first petition
but not litigated in the first appeal were abandoned and are not
considered new pursuant to NRS 34.810(2).
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cumulate. See generally In Re Reno, 283 P.3d 1181 (Cal. 2012)
(recognizing in the context of California's habeas jurisprudence that
claims previously litigated and rejected on their "substantive merits—i.e.,
this court found no legal error—cannot logically be used to support a
cumulative error claim because [the Supreme Court] has already found
there was no error to cumulate"). Although appellant purportedly
identified which grounds for relief had been previously raised, he failed to
include any acknowledgement that his claims were rejected on their
substantive merits. All of the claims previously raised before this court
and reviewed by this court have been determined to lack legal error. 4 A
solitary claim involved this court's determination of the merits of a claim
based solely on the lack of prejudice—the failure of trial counsel to call Dr.
John Paglini to testify at the penalty hearing. Even assuming that this
claim could be presented again for its cumulative effect, because appellant
failed to demonstrate good cause for the new claims, as discussed below,
appellant necessarily failed to demonstrate good cause and prejudice for
presenting this claim again.
Next, appellant indicated that ground 4, paragraphs 2, 3, 5, 6,
and 7, presented new claims for relief. Appellant claimed that he had
good cause to raise the new claims due to the ineffective assistance of post-
conviction counsel in the first post-conviction proceedings. Ineffective
assistance of post-conviction counsel would not be good cause in the
instant case because the appointment of counsel in the prior post-
conviction habeas corpus proceedings was not statutorily or
4We note that although a claim of ineffective assistance of counsel
involves a factual component, it is a claim of legal error. See Trujillo v.
State, 129 Nev. „ 310 P.3d 594, 602 (2013).
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constitutionally required. 5 Crump v. Warden, 113 Nev. 293, 303, 934 P.2d
247, 253 (1997); McKague v. Warden, 112 Nev. 159, 164, 912 P.2d 255, 258
(1996). Further, we note that this court has recently held that Martinez
v. Ryan, 566 U.S. , 132 S. Ct. 1309 (2012) (recognizing an equitable
exception to a federal procedural bar due to the ineffective assistance of
post-conviction counsel) does not apply to Nevada's statutory post-
conviction procedures. See Brown v. Warden, 130 Nev. , P.3d
(Adv. Op. No. 60, August 7, 2014). Therefore, we conclude that the district
court did not err in denying these petitions as procedurally barred and
without good cause. Accordingly, we
ORDER the judgments of the district court AFFIRMED.
SAITTA, J., dissenting:
I would extend the equitable rule recognized in Martinez to
this case because appellant was convicted of murder and is facing a severe
sentence. See Brown v. McDaniel, 130 Nev. , P.3d (Adv. Op.
No. 60, August 7, 2014) (Cherry, J., dissenting). Accordingly, I would
5 We note that appellant was entitled to the effective assistance of
counsel in the Lozada appeal because it remedied the loss of a direct
appeal. See Lozada v. State, 110 Nev. 349, 359, 871 P.2d 944, 950 (1994).
That right did not extend, however, to the post-conviction claims litigated.
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reverse and remand for the district court to determine whether appellant
can demonstrate a substantial underlying ineffective-assistance-of-trial-
counsel claim that was omitted due to the ineffective assistance of post-
conviction counsel. I therefore dissent.
cc: Hon. Douglas W. Herndon, District Judge
Ricardo Jose Lopez
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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