Opinion
No. 65426
01-21-2015
EDWARD EUGENE GARNER, 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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 of the district court denying a post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Stefany Miley, Judge.
On appeal from the denial of his July 9, 2012, petition, appellant first argues that the trial court abused its discretion by failing to grant appellant's request for substitute counsel made prior to trial. This claim could have been raised on direct appeal and appellant did not demonstrate cause for the failure to do so and actual prejudice. See NRS 34.810(1)(b). To the extent appellant asserts that he had good cause to overcome the procedural bar because his appellate counsel acted under a conflict of interest, and because the district court should have appointed post-conviction counsel to help him raise claims in the initial post-conviction proceedings, he did not allege these issues as good cause below, and these assertions are not properly raised for the first time on appeal. See Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 (1991), overruled on other grounds by Means v. State, 120 Nev. 1001, 1012-13, 103 P.2d 25, 33 (2004). We conclude that the district court did not err in denying the petition, and we
Appellant argues in his reply brief that the State did not sufficiently respond to this claim and therefore confessed error. However, we conclude that this assertion lacks merit as the State sufficiently responded to this claim.
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver
cc: Hon. Stefany Miley, District Judge
Karen A. Connolly, Ltd.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk