Opinion
No. 69907
07-27-2016
ALLEN KOERSCHNER, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
This is an appeal from an order of the district court denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Elissa F. Cadish, Judge.
This appeal has been submitted for decision without oral argument. NRAP 34(f)(3).
Allen Koerschner filed his petition on October 8, 2015, more than 14 years after issuance of the remittitur on direct appeal on May 23, 2001. Koerschner v. State, 116 Nev. 1111, 13 P.3d 451 (2000). Thus, Koerschner's petition was untimely filed. See NRS 34.726(1). Moreover, Koerschner's petition was successive because he had previously filed two postconviction petitions for a writ of habeas corpus. See NRS 34.810(1)(b)(2); NRS 34.810(2). Koerschner'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, Koerschner was required to overcome the rebuttable presumption of prejudice. See NRS 34.800(2).
Koerschner v. State, Docket No. 54718 (Order of Affirmance, February 4, 2010); Koerschner v. State, Docket No. 43313 (Order of Affirmance, July 25, 2006). --------
Koerschner argues the procedural bars do not apply because the district court lacked jurisdiction over the trial and sentencing. Koerschner asserts the district court lacked jurisdiction because a criminal complaint was never filed in the justice court, which is demonstrated by the lack of a file-stamp bearing the date and time the document was filed. This court and the Nevada Supreme Court have already concluded that Koerschner's assertion the district court did not have jurisdiction over his case lacks merit. Koerschner v. State, Docket No. 67512 (Order of Affirmance, July 14, 2015); Koerschner v. State, Docket No. 54718 (Order of Affirmance, February 4, 2010). The doctrine of the law of the case prevents further litigation of this issue and "cannot be avoided by a more detailed and precisely focused argument." See Hall v. State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975).
In addition, Koerschner failed to overcome the presumption of prejudice to the State. Therefore, we conclude the district court did not err in denying the petition as procedurally barred and we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Gibbons /s/_________, J.
Tao /s/_________, J.
Silver cc: Hon. Elissa F. Cadish, District Judge
Allen Koerschner
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk