Opinion
No. 73459-COA
03-20-2019
HECTOR CASTELLON, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Hector Castellon appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on May 1, 2017. Eighth Judicial District Court, Clark County; William D. Kephart, Judge.
This appeal has been submitted for decision without oral argument. NRAP 34(f)(3).
Castellon filed his petition more than 30 years after issuance of the remittitur on direct appeal on January 13, 1987, see Castellon v. State, Docket No. 16103 (Order Dismissing Appeal, December 23, 1986), and 24 years after the effective date of NRS 34.726, see 1991 Nev. Stat., ch. 44, § 5, at 75-76, § 33, at 92; Pellegrini v. State, 117 Nev. 860, 874-75, 34 P.3d 519, 529 (2001), abrogated on other grounds by Rippo v. State, 134 Nev. ___, ___ n.12, 423 P.3d 1084, 1097 n.12 (2018). Castellon's petition was therefore untimely filed. See NRS 34.726(1). Castellon's petition was also successive and an abuse of the writ. See NRS 34.810(1)(b)(2); NRS 34.810(2). Castellon's petition was therefore procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3). Further, because the State specifically pleaded laches, Castellon was required to overcome the presumption of prejudice to the State. See NRS 34.800(2),
See Castellon v. State, Docket No. 24933 (Order Dismissing Appeal, February 4, 1994).
Castellon claimed the decisions in Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257 (2016), and Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), provided good cause to excuse the procedural bars to his claim that he is entitled to the retroactive application of Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000). We conclude the district court did not err by concluding the cases did not provide good cause to overcome the procedural bars. See Branham v. Warden, 134 Nev. ___, ___, 434 P.3d 313, 316 (Ct. App. 2018).
Castellon also claimed he could demonstrate a fundamental miscarriage of justice to overcome the procedural bars. A petitioner may overcome procedural bars by demonstrating he is actually innocent such that the failure to consider his petition would result in a fundamental miscarriage of justice. Pellegrini, 117 Nev. at 887, 34 P.3d at 537. Castellon claimed that "[t]he facts in this case established that [he] only committed a second-degree murder." This is not actual innocence, and Castellon thus failed to overcome the procedural bars. See Bousley v. United States, 523 U.S. 614, 623 (1998) ("'[A]ctual innocence' means factual innocence, not mere legal insufficiency."). And because he failed to demonstrate a fundamental miscarriage of justice, Castellon failed to overcome the presumption of prejudice to the State. See NRS 34.800.
Castellon's claim on appeal that the district court did not give him sufficient time to respond to the State's request to dismiss is belied by the record. The State pleaded laches in a document filed and served on May 23, 2017. Castellon had 15 days to file a response, see NRS 34.750(4), but he did not. The district court did not rule on Castellon's petition until June 26, 2017.
Finally, we conclude the district court did not abuse its discretion by declining to appoint postconviction counsel. See NRS 34.750(1); Renteria-Novoa v. State, 133 Nev. 75, 76, 391 P.3d 760, 760-61 (2017). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
We have reviewed all documents Castellon has filed in this matter, and we conclude no relief based upon those submissions is warranted. To the extent Castellon has attempted to present claims or facts in those submissions which were not previously presented in the proceedings below, we decline to consider them in the first instance. --------
/s/_________, J.
Tao
/s/_________, J.
Gibbons
/s/_________, J.
Bulla cc: Hon. William D. Kephart, District Judge
Hector Castellon
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk