Bradberry (Ronald) v. State

Opinion

impediment external to the defense. See Hathaway v. State, 119 Nev. 248,

252, 71 P.3d 503, 506 (2003). Moreover, because the State specifically

pleaded laches, appellant was required to overcome the rebuttable

presumption of prejudice. NRS 34.800(2).

Appellant claimed that he had cause for the delay because he

only learned about the allegedly illegal sentencing procedure five and one-

half years after entry of the judgment of conviction. Appellant claimed

that he would not have been able to discover the alleged error earlier.

Appellant's good cause argument lacked merit. The alleged error occurred

on the record, and thus, the claim was reasonably available to appellant to

raise in a timely petition. See Hathaway, 119 Nev. at 252-53, 71 P.3d at 506. Appellant's failure to appreciate the alleged error in the sentencing

proceedings is not an impediment external to the defense. See Phelps v.

Dir., Nev. Dep't of Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988).

Therefore, we conclude that the district court did not err in denying the

petition as procedurally time barred. Next, appellant argued that laches should not apply because it

was the State's error and the State did not suffer prejudice. This

argument fell short of demonstrating a fundamental miscarriage of justice

as required by NRS 34.800, and therefore, appellant failed to rebut the

presumption of prejudice to the State. Therefore, we conclude that the

SUPREME COURT OF NEVADA 2 (0) 1947A TDO4F. district court did not abuse its discretion in denying the petition as barred

by laches. Accordingly, we ORDER the judgment of the district court AFFIRMED. 2

A Hardesty Ct-4 SA; J.

J. °17 Douglas 4/:

cc: Hon. Carolyn Ellsworth, District Judge Ronald Westman Bradberry Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

2We 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.

SUPREME COURT OF NEVADA 3 (0) 1947A e94