dissenting:
Appellant Avram Nika has failed to overcome the procedural bars to his claims. In my view, Nika had the opportunity to raise his claims of ineffective trial counsel in the SCR 250 proceeding. Accordingly, the procedural bars apply.
NRS 34.810(l)(b) is the controlling statute and provides that a court must dismiss a petition if “[t]he petitioner’s conviction was the result of a trial and the grounds for the petition could have been . . . [rjaised in any other proceeding.” NRS 34.810(3) requires the petitioner to plead and prove specific facts demonstrating good cause for a “failure to present the claim or for presenting the claim again” and actual prejudice. Therefore, under NRS 34.810(l)(b) and NRS 34.810(3), any claims of ineffective trial counsel, whether new or repeated, are procedurally barred unless Nika shows good cause and prejudice.
I disagree with the majority’s conclusion that the SCR 250 proceeding we ordered in 1995 did not provide Nika with a full and fair opportunity to raise his claims of ineffective trial counsel. I disagree with the majority that Nika’s counsel did not have the time usually afforded to post-conviction counsel to investigate possible avenues of relief. Although this court’s order initially directed that the proceeding conclude within ninety days, the district court did not hold an evidentiary hearing on the matter until more than fourteen months had passed.1 Because Nika had more than a year to prepare for the SCR 250 proceeding, there was no prejudice.
Additionally, Nika presents no specifics as to what viable claims were neglected in the SCR 250 proceeding and fails to demonstrate how he was precluded from challenging his appellate counsel’s performance. Although he claims that the counsel who represented him at the SCR 250 proceeding could neither call him to testify nor cross-examine trial counsel vigorously, he does not explain why or how his case was limited in these regards. Taken as a whole, the facts of the instant case indicate that Nika has not shown good cause or prejudice. Therefore, I would affirm the order of the district court denying the post-conviction petition for a writ of habeas corpus.
We entered our order in August 1995; the hearing was not conducted until November 1996.