Jones (Leroy) v. State

• Court: Nevada Supreme Court
• Decided: November 13, 2014
• Docket: 65966
• Status: Unpublished

Opinion

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). First, relying in part on Martinez v. Ryan, 566 U.S. 132 S. Ct. 1309 (2012), appellant argued that ineffective assistance of post- conviction counsel excused his procedural defects. Ineffective assistance of post-conviction counsel would not be good cause in the instant case because the appointment of counsel in the prior post-conviction proceedings was not statutorily or constitutionally required. Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997); McKague v. Warden, 112 Nev. 159, 164, 912 P.2d 255, 258 (1996). Further, this court has recently held that Martinez does not apply to Nevada's statutory post- conviction procedures, see Brown v. McDaniel, 130 Nev. „ 331 P.3d 867, 872-73 (2014), and thus, Martinez does not provide good cause for this late and successive petition. Second, appellant claimed that the procedural bars did not apply because he is actually innocent. Appellant claimed that he informed his trial counsel prior to trial of witnesses that would support his actual- innocence claims. Appellant's claim was without merit. Former coworkers identified appellant as the perpetrator of a burglary and robbery and surveillance video recorded him committing the additional crimes. Thus, appellant 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. v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001); Mazzan v. Warden, 112 Nev.

SUPREME COURT OF NEVADA 2 (0) 1947A e 838, 842, 921 P.2d 920, 922 (1996). Therefore, the district court did not err in denying the petition as procedurally barred. Accordingly, we ORDER the judgment of the district court AFFIRMED. 3

Hardesty

, J. Cherry

cc: Hon. Carolyn Ellsworth, District Judge Leroy Lee Jones Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

3 We 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 e