Zacarias-Lopez (Elder) v. State

• Court: Nevada Supreme Court
• Decided: October 13, 2017
• Docket: 71985
• Status: Unpublished

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

ELDER ZACARIAS-LOPEZ, No. 71985 Appellant, VS.

THE STATE OF NEVADA, Respondent. FILED OCT 1 3 2017 1. OWN

ORDER OF AFFIRMANCE (5 DEPUTY CLERK

This is a pro se appeal from a district court order denying a postconviction petition for a writ of habeas corpus.' Eighth Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge. Appellant filed his petition on September 12, 2016, more than 12 years after remittitur issued from his direct appeal on June 8, 2004. See NRS 34.726(1). Zacarias-Lopez v. State, Docket No. 40116 (Order of Affirmance, May 11, 2004). Thus, his petition was untimely filed. Moreover, the petition was successive because appellant had previously filed a postconviction petition. 2 See NRS 34.810(1)(b)(2); NRS 34.810(2). Appellant's petition was procedurally barred absent a demonstration of

'Having considered the pro se brief filed by appellant, we conclude that a response is not necessary. NRAP 46A(c). Th is appeal therefore has been submitted for decision based on the pro se brief and the record. See NRAP 34(0(3).

2 Zacarias-Lopez v. State,Docket No. 44802 (Order of Affirmance, June 14, 2005); Zacarias-Lopez v. State, Docket No. 54427 (Order of Affirmance, September 10, 2010); Zacarias-Lopez v. State, Docket No. 66088 (Order of Affirmance, December 11, 2014).

SUPREME COURT OF NEVADA

(0) 1947A 17-S5L-35 good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3). Appellant argues that he demonstrated good cause and prejudice to raise a challenge to the Kazalyn 3 instruction because the claim was not previously available. We conclude that appellant failed to demonstrate good cause and prejudice. See Leavitt v. State, 132 Nev., Adv. Op. 03, 386 P.3d 620 (2016) (concluding that a claim based on Riley v. McDaniel, 786 F.3d 719, 721 (9th Cir. 2015), does not establish good cause). Notably, the Kazalyn instruction was not given at appellant's trial and the jury was appropriately instructed pursuant to Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000). Accordingly, we ORDER the judgment of the district court AFFIRMED.

Hardesty

9 Parraguirre

_A-t4t:LC Stiglich

cc: Hon. Jessie Elizabeth Walsh, District Judge Elder Zacarias-Lopez Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

3 Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992). SUPREME COURT OF NEVADA 2 (0) 1947A e