Bacon (Percy) v. State

• Court: Nevada Supreme Court
• Decided: September 16, 2014
• Docket: 63217
• Status: Unpublished

Opinion

34.810(1)(b)(2); 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(1)(b); 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 no procedural bars applied because the district court lacked jurisdiction due to various errors in the pretrial and trial proceedings. Appellant's claims did not implicate the jurisdiction of the courts. Nev. Const. art. 6, § 6; NRS 171.010. Thus, the procedural bars did apply to this petition. Next, appellant claimed that this petition should relate back to the first petition. Appellant's first petition was denied and this court affirmed that denial. See Bacon v. State, Docket No. 50612 (Order of Affirmance, May 15, 2008). Thus, this petition cannot be considered a supplement to the first petition. Next, relying 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 would have been discretionary in the first post-conviction proceedings, see NRS 34.750(1), but appellant did not request the appointment of counsel. Further, this court has recently held that Martinez does not apply to Nevada's statutory post-conviction petition and procedures. See Brown v. McDaniel, Nev. P.3d (Adv. Op. No. 60, August 7, 2014). Thus, the failure to appoint post-conviction counsel and the decision in Martinez would not provide good cause for this late and successive petition.

SUPREME COURT OF NEVADA 2 (0) 1947A 9:1040 Next, appellant claimed that he had good cause because he lacked legal knowledge, had a limited education and suffered from chronic medical issues. Appellant's lack of knowledge about the law, limited education, and medical issues did not constitute good cause. Phelps v. Dir., Nev. Dep't. Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988). Finally, appellant argued that he could overcome application of the procedural bars 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). Appellant failed to overcome the presumption of prejudice to the State. We therefore conclude that the district court did not err in denying appellant's petition. Accordingly, we ORDER the judgment of the district court AFFIRMED.

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SUPREME COURT OF NEVADA 3 (0) I947A aer cc: Hon. Jennifer P. Togliatti, District Judge Percy Lavae Bacon Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 4 (9) 1947A e