Lewis (Gary) v. State

Nevada Supreme Court

Lewis (Gary) v. State

DecidedSeptember 16, 2014

Docket65531

StatusUnpublished

This text of Lewis (Gary) v. State (Lewis (Gary) 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

Lewis (Gary) v. State, (Neb. 2014).

Pincite

Opinion

conviction procedures. See Brown v. McDaniel, Nev. , P.3d (Adv. Op. No. 60, August 7, 2014). Thus, the decision in Martinez would not provide good cause for this late petition. Next, appellant claimed that the decision in Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013) provided good cause because it allows him to amend the petition and have the claim relate back to the first petition. Appellant misstated the holding in Ha Van Nguyen and its effect on his case. Appellant's first petition was resolved in 2009. See Lewis v. State, Docket No. 53779 (Order of Affirmance, October 28, 2009). Thus, no amendment was possible in 2014. Further, the 2009 petition itself was procedurally barred and any attempt to relate back to that petition would cause the amendment to suffer the same defect. Finally, appellant claimed that he was actually innocent and he would be able to prove his actual innocence with genetic marker testing. 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 has previously unsuccessfully litigated a petition for genetic marker testing and has provided no evidence supporting his claim of

SUPREME COURT OF NEVADA 2 (0) 1947A actual innocence. We therefore conclude that the district court did not err in denying appellant's petition as procedurally barred. 2 Accordingly, we ORDER the judgment of the district court AFFIRMED.

Hardesty

J.

cc: Hon. Michelle Leavitt, District Judge Gary Lynn Lewis Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

2To the extent that appellant challenged the Department of Corrections' calculation of his parole eligibility date, that challenge must be raised in a post-conviction petition for a writ of habeas corpus filed in the district court for the county in which he is incarcerated. See NRS 34.738(1).

SUPREME COURT OF NEVADA 3 (0) I947A

Free access — add to your briefcase to read the full text and ask questions with AI

conviction procedures. See Brown v. McDaniel, Nev. , P.3d (Adv. Op. No. 60, August 7, 2014). Thus, the decision in Martinez would not provide good cause for this late petition. Next, appellant claimed that the decision in Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013) provided good cause because it allows him to amend the petition and have the claim relate back to the first petition. Appellant misstated the holding in Ha Van Nguyen and its effect on his case. Appellant's first petition was resolved in 2009. See Lewis v. State, Docket No. 53779 (Order of Affirmance, October 28, 2009). Thus, no amendment was possible in 2014. Further, the 2009 petition itself was procedurally barred and any attempt to relate back to that petition would cause the amendment to suffer the same defect. Finally, appellant claimed that he was actually innocent and he would be able to prove his actual innocence with genetic marker testing. 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 has previously unsuccessfully litigated a petition for genetic marker testing and has provided no evidence supporting his claim of

SUPREME COURT OF NEVADA 2 (0) 1947A actual innocence. We therefore conclude that the district court did not err in denying appellant's petition as procedurally barred. 2 Accordingly, we ORDER the judgment of the district court AFFIRMED.

Hardesty

J.

cc: Hon. Michelle Leavitt, District Judge Gary Lynn Lewis Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

2To the extent that appellant challenged the Department of Corrections' calculation of his parole eligibility date, that challenge must be raised in a post-conviction petition for a writ of habeas corpus filed in the district court for the county in which he is incarcerated. See NRS 34.738(1).

SUPREME COURT OF NEVADA 3 (0) I947A

Cite This Page — Counsel Stack

Bluebook (online)

Lewis (Gary) v. State, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-gary-v-state-nev-2014.

Opinion

Related

Cite This Page — Counsel Stack