Opinion
No. 63352
12-12-2013
JEFFREY LYNN FRANKLIN, 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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 a proper person appeal from an order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.
This appeal has been submitted for decision without oral argument, NRAP 34(f)(3), and we conclude that 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 filed his petition on February 21, 2013, more than five years after issuance of the remittitur on direct appeal on January 22, 2008. Franklin v. State, Docket No. 48848 (Order of Affirmance, December 27, 2007). Thus, appellant's petition was untimely filed. See NRS 34.726(1). Moreover, appellant's petition was successive because he had previously litigated a post-conviction petition for a writ of habeas corpus on the merits, 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(1)(b)(2); NRS 34.810(2). Appellant's petition was 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). Moreover, because the State specifically pleaded laches, appellant was required to overcome the rebuttable presumption of prejudice. NRS 34.800(2).
Wranklin v. State, Docket No. 52422 (Order of Affirmance, December 11, 2009).
Relying upon Edwards v. State, 112 Nev. 704, 918 P.2d 321 (1996), appellant claimed that the procedural bars did not apply to him because he raised claims concerning the validity of his sentence. Appellant was in error. Procedural bars are mandatory in habeas corpus, and there is no exception based on a claim of sentencing error. See State v. Eighth Judicial Dist. Ct. (Riker), 121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005); see also NRS 34.726. Appellant did not attempt to provide any good cause argument to excuse his procedural defects. Even assuming that appellant's petition could be construed as a motion to correct an illegal sentence, appellant's claims fell outside the scope of claims permitted in a motion to correct an illegal sentence. See Edwards, 112 Nev. at 707, 918 P.2d at 324. Appellant also failed to overcome the presumption of prejudice to the State. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
We have reviewed all documents that appellant has submitted in proper person to the clerk of this court in this matter, and we conclude that no relief based upon those submissions is warranted. To the extent that appellant has attempted to present claims or facts in those submissions which were not previously presented in the proceedings below, we have declined to consider them in the first instance.
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___________________, C.J.
Pickering
___________________, J.
Hardesty
___________________, J.
Cherry
cc: Hon. Jessie Elizabeth Walsh, District Judge
Jeffrey Lynn Franklin
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk