Houston (Horace) v. State

Nevada Supreme Court

Houston (Horace) v. State

DecidedSeptember 17, 2014

Docket65651

StatusUnpublished

This text of Houston (Horace) v. State (Houston (Horace) v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Houston (Horace) v. State, (Neb. 2014).

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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). Based upon our review of the record on appeal, we conclude that the district court did not err in denying the petition as procedurally barred for the reasons discussed below. To the extent that appellant claimed that the ineffective assistance of trial and/or appellate counsel provided good cause to excuse his procedural defects, appellant's claim lacked merit. A claim of ineffective assistance that is itself procedurally barred cannot constitute good cause to excuse a procedural defect. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). To the extent that appellant claimed that this court's holding in Bolden v. State, 121 Nev. 908, 124 P.3d 191 (2005), overruled by Cortinas v. State, 124 Nev. 1013, 1016, 195 P.3d 315, 317 (2008), provided good cause to excuse his procedural defects, appellant's claim lacked merit. This court has previously held that Bolden will not excuse appellant's procedurally barred petition, Houston v. State, Docket No. 55607 (Order of Affirmance, November 8, 2010), and that holding is the law of the case. Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). Finally, appellant claimed that he was actually innocent such that the failure to consider his underlying claims on the merits would result in a fundamental miscarriage of justice. 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

SUPREME COURT OF NEVADA 2 (0) 1947A 44044 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, and we ORDER the judgment of the district court AFFIRMED. 3

/ Hardesty

—11-1Cr Douglas -

cc: Hon. Kathleen E. Delaney, District Judge Horace Calvin Houston Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

3 The district court did not abuse its discretion in denying appellant's request for the appointment of post-conviction counsel. See NRS 34.750.

SUPREME COURT OF NEVADA 3 (0) 1947A 409P (9

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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). Based upon our review of the record on appeal, we conclude that the district court did not err in denying the petition as procedurally barred for the reasons discussed below. To the extent that appellant claimed that the ineffective assistance of trial and/or appellate counsel provided good cause to excuse his procedural defects, appellant's claim lacked merit. A claim of ineffective assistance that is itself procedurally barred cannot constitute good cause to excuse a procedural defect. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). To the extent that appellant claimed that this court's holding in Bolden v. State, 121 Nev. 908, 124 P.3d 191 (2005), overruled by Cortinas v. State, 124 Nev. 1013, 1016, 195 P.3d 315, 317 (2008), provided good cause to excuse his procedural defects, appellant's claim lacked merit. This court has previously held that Bolden will not excuse appellant's procedurally barred petition, Houston v. State, Docket No. 55607 (Order of Affirmance, November 8, 2010), and that holding is the law of the case. Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). Finally, appellant claimed that he was actually innocent such that the failure to consider his underlying claims on the merits would result in a fundamental miscarriage of justice. 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

SUPREME COURT OF NEVADA 2 (0) 1947A 44044 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, and we ORDER the judgment of the district court AFFIRMED. 3