Opinion
No. 73709
06-29-2018
ROBERT CHARLES BARROWS, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Robert Charles Barrows, Jr., appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; William D. Kephart, Judge.
This appeal has been submitted for decision without oral argument and we conclude the record is sufficient for our review and briefing is unwarranted. NRAP 34(f)(3), (g).
Barrows filed his petition on April 4, 2017, more than two years after entry of the judgment of conviction on October 8, 2014. Thus, Barrows' petition was untimely filed. See NRS 34.726(1). Barrows' petition was procedurally barred absent a demonstration of good cause—cause for the delay and undue prejudice. See id.
Barrows did not pursue a direct appeal. --------
First, Barrows claimed he had good cause because his counsel failed to file a notice of appeal. Barrows did not demonstrate good cause. Barrows failed to demonstrate that he reasonably believed an appeal was pending during the timely-filing period, particularly in light of Barrows' specific waiver of his right to appeal the judgment of conviction in his written plea agreement. In addition, Barrows did not demonstrate that he filed his petition within a reasonable time of learning no appeal had been taken. Therefore, we conclude the district court did not err by denying the petition as procedurally barred. See Hathaway v. State, 119 Nev. 248, 255, 71 P.3d 503, 508 (2003).
Second, Barrows appeared to claim the procedural bar did not apply because he was actually innocent. Barrows asserted he did not realize his codefendant had taken items from the store and he only threatened the store employee with a screwdriver because he believed his codefendant was being attacked by the store employee. A petitioner may overcome the procedural bars and "secure review of the merits of defaulted claims by showing that the failure to consider the petition on its merits would amount to a fundamental miscarriage of justice." Berry v. State, 131 Nev. ___, ___, 363 P.3d 1148, 1154 (2015). A petitioner can demonstrate a fundamental miscarriage of justice occurred because he is actually innocent by demonstrating "it is more likely than not that no reasonable juror would have convicted him in the light of . . . new evidence." Id. Our review of the record reveals Barrows was not entitled to relief because his actual-innocence claim was not based upon new evidence. See Schlup v. Delo, 513 U.S. 298, 324 (1995) ("To be credible, [an actual-innocence claim] requires petitioner to support his allegations of constitutional error with new reliable evidence."). Therefore, we conclude the district court did not err by denying the petition as procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Silver /s/_________, J.
Tao /s/_________, J.
Gibbons cc: Hon. William D. Kephart, District Judge
Robert Charles Barrows, Jr.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk