Opinion
No. 67796
08-04-2015
JUSTIN EDMISTON, A/K/A JUSTIN JAMES EDMINSTON, Appellant, v. THE STATE OF NEVADA, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
This is an appeal from an order denying a motion to correct an illegal sentence. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.
This appeal has been submitted for decision without oral argument, NRAP 34(f)(3), and we conclude the record is sufficient for our review and briefing is unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975).
Appellant Justin Edmiston filed his motion on February 9, 2015. The district court elected to construe the motion as a post-conviction petition for a writ of habeas corpus because the claims raised in the motion were more appropriate for a post-conviction petition. Therefore, to the extent that Edmiston's motion could be construed as a post-conviction petition, his petition was successive because he had previously filed a post-conviction petition for a writ of habeas corpus, and it constituted an abuse of the writ as he raised claims new and different from those raised in his previous petition. See NRS 34.810(2). Edmiston's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.810(3).
Edmisten v. State, Docket No. 66757 (Order of Affirmance, March 17, 2015). --------
Edmiston failed to demonstrate any good cause to overcome the procedural bars. Therefore, the district court did not err in concluding the motion would be procedurally barred if construed as a post-conviction petition.
In addition, Edmiston failed to demonstrate his sentence should be modified or that his sentence was illegal. In his motion, Edmiston claimed counsel was ineffective, and that had counsel informed him regarding the grand jury process Edmiston would have requested an appeal and his conviction would have been reversed. Edmiston failed to demonstrate the district court relied on mistaken assumptions regarding his criminal record that worked to his extreme detriment. See Edwards v. State, 112 Nev. 704, 708, 918 P.2d 321, 324 (1996). He also failed to demonstrate his sentence was facially illegal or the district court lacked jurisdiction. See id. Therefore, we conclude the district court did not err in denying Edmiston's motion, and we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver
cc: Hon. Michelle Leavitt, District Judge
Justin Edmiston
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk