Vontobel (Gerald) v. State

• Court: Nevada Supreme Court
• Decided: September 17, 2014
• Docket: 62227
• Status: Unpublished

Opinion

the procedural defects because he was not appointed counsel in the first post-conviction proceedings. We conclude that this argument lacks merit. The appointment of counsel was discretionary in the first post-conviction proceedings, see NRS 34.750(1), and appellant has failed to demonstrate an abuse of discretion. Further, this court has recently held that Martinez does not apply to Nevada's statutory post-conviction procedures. See Brown v. McDaniel, Nev. , P.3d (Adv. Op. No. 60, August 7, 2014). Thus, the failure to appoint post-conviction counsel and the decision in Martinez would not provide good cause for this late and successive petition. Next, appellant argues that his appellate counsel's failure to raise certain claims on direct appeal constitutes good cause to excuse the procedural defects. This argument lacks merit, as 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). Finally, appellant argues that he was actually innocent and the failure to consider his underlying claims on the merits would result in a fundamental miscarriage of justice. A petitioner may be entitled to review of defaulted claims if failure to review the claims would result in a fundamental miscarriage of justice. Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). In order to demonstrate a fundamental miscarriage of justice, a petitioner must make a colorable showing of actual innocence of the crime. Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). The district court held an evidentiary hearing on appellant's claim of actual innocence and six witnesses testified that they never saw any signs of abuse, the victims did not appear to be scared of

SUPREME COURT OF NEVADA 2 (0) 1947A appellant, and the victims never told them about any abuse. The district court found that this evidence was essentially presented to the jury through other witnesses and did not demonstrate actual innocence. We conclude that the district court did not err in denying this claim because 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, 117 Nev. at 887, 34 P.3d at 537; Mazzan, 112 Nev. at 842, 921 P.2d at 922. We therefore conclude that the district court did not err in denying appellant's petition. Accordingly, we ORDER the judgment of the district court AFFIRMED.

Aou., n gEgAi J. Hardesty

?gstrA) J. Douglas

J. Cherry

cc: Hon. David B. Barker, District Judge Federal Public Defender/Las Vegas Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 (0) I Y47A.