Holmes, III (Robert) v. State

Opinion

Holmes claimed that his petition was timely filed because he

filed it within one year after the amended judgment of conviction was

entered on September 17, 2013. The entry of the amended judgment of

conviction, however, did not restart the one-year time period for filing a

post-conviction habeas petition. See Sullivan v. State, 120 Nev. 537, 540-

41, 96 P.3d 761, 764 (2004). Further, the entry of the amended judgment

of conviction did not provide good cause to excuse the untimely filing of his

petition because none of his claims were related to the correction of

presentence credits contained in the amended judgment of conviction. Id.

at 541, 96 P.3d at 764.

Next, Holmes claimed he had good cause because newly

discovered evidence indicated one of the detectives assigned to his case

may have used a false name. Holmes failed to demonstrate that this claim

could not have been raised earlier and that he would not have pleaded

guilty had he known about this evidence. See Hathaway v. State, 119 Nev.

248, 252-53, 71 P.3d 503, 506 (2003). Therefore, he failed to demonstrate

good cause to excuse the procedural defects.

Holmes also claimed that failure to consider his petition would

result in a fundamental miscarriage of justice because he is actually

innocent. Holmes did not allege factual innocence and 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.

SUPREME COURT OF NEVADA 2 (0) 1947A auen, Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). Therefore, Holmes failed to demonstrate actual innocence. Holmes also failed to overcome

the presumption of prejudice to the State. See NRS 34.800(2).

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

petition as procedurally barred, and we ORDER the judgment of the district court AFFIRMED.

Ot-t-s-cA--- Parraguirre

J. CherryY a LIAL

cc: Eighth Judicial District Court Dept. 20 Robert Holmes, III Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 (0) 1947A e