Clark (Darryl) v. State

was therefore procedurally barred absent a demonstration of good cause
and actual prejudice. See NRS 34.726(1); NRS 34.810(3). Further,
because the State specifically pleaded laches, appellant was required to
overcome the presumption of prejudice to the State. See NRS 34.800(2).
First, appellant claimed that he had good cause to excuse the
procedural bars because he was challenging the jurisdiction of the district
court and such claims may be raised at any time. Appellant's claims did
not implicate the jurisdiction of the courts. See Nev. Const. art. 6, § 6;
NRS 171.010. Appellant's bare allegation that his remaining claims may
also be raised at any time was similarly without merit.
Second, appellant claimed that he had good cause to excuse
the procedural bars because his absence at the hearings during which the
district court ruled on his 1994 and 2009 post-conviction petitions
rendered the orders reflecting those rulings void. Appellant's claim was
patently without merit. Appellant did not demonstrate any right to attend
hearings where no evidence was taken. See Gebers v. State, 118 Nev. 500,
503-04, 50 P.3d 1092, 1094 (2002). Moreover, even if appellant's argument
were valid, it would not have explained the delay in filing the instant
petition.
Third, appellant claimed that he had good cause to excuse the
procedural bars because he believed that counsel had properly informed

...continued
former NRS 177.315 or from the denial of his March 15, 2012, proper
person post-conviction petition for a writ of habeas corpus.

Appellant's claims that the instant petition is merely an amendment
to the March 15, 2012, petition were without merit as the district court did
not grant him permission to amend the petition. See NRS 34.750(5).

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him of the law regarding sentencing enhancements. Appellant's ignorance
of the law did not excuse the procedural bars. Phelps v. Dir., Nev. Dep't of
Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988). To the extent
appellant claimed that ineffective assistance of counsel excused his delay,
that claim was itself untimely such that it could not afford good cause.
Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003).
Fourth, appellant claimed that the recent United States
Supreme Court Case, Lafler v. Cooper, 566 U.S. , 132 S. Ct. 1376
(2012), provided good cause to excuse the procedural bars. Appellant's
argument was without merit because his case was final when Lafier was
decided, and he failed to demonstrate that it would apply retroactively to
him. Even if Lafler did announce a new rule of constitutional law,
appellant failed to allege facts to support 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).
Finally, appellant claimed that the district court had already
determined that he had demonstrated good cause. Appellant's claim was
belied by the record. Appellant misquoted the order, which simply
directed the State to respond to appellant's petition.
Appellant also attempted to overcome his procedural defects
by arguing that he is actually innocent of the deadly weapon
enhancement. 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). 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. Accordingly, we
ORDER the judgment of the district court AFFIRMED.

cc: Hon. Abbi Silver, District Judge
Darryl Orlandus Clark
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk

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