Opinion
No. 74393
06-13-2018
TOLLIVER G. ARMSTRONG, Appellant, v. ISIDRO BACA, Respondent.
ORDER OF AFFIRMANCE
Tolliver G. Armstrong appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus challenging the computation of time served, filed on October 2, 2017. First Judicial District Court, Carson City; James Todd Russell, Judge.
This appeal has been submitted for decision without oral argument. NRAP 34(f)(3). --------
The district court concluded Armstrong's petition was an abuse of the writ because it raised claims identical to those raised in his May 16, 2017, postconviction petition for a writ of habeas corpus. Armstrong's petition was therefore procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.810(2), (3). Armstrong can demonstrate neither.
Armstrong contends he has good cause to reraise the issue because it was not clear that his prior petition was raising the issue in the first place. We disagree. In finding that Armstrong's earlier petition raised the same claim as the instant petition, the district court acknowledged that the issue was clearly raised in the prior petition. And the record on appeal substantially supports the district court's finding. Further, Armstrong cannot demonstrate actual prejudice because this court vacated the district court's denial of Armstrong's May petition and ordered it to reconsider the claim in light of a recent, dispositive Nevada Supreme Court decision. See Armstrong v. Warden, Docket No. 73401 (Order Vacating Judgment and Remanding, April 25, 2018). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. James Todd Russell, District Judge
Tolliver G. Armstrong
Attorney General/Carson City
Carson City District Attorney
Carson City Clerk