Opinion
No. 65334
07-22-2014
ZEL NORMAN, 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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 of the district court denying a post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Michael Villani, 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 January 16, 2014, nearly seven years after issuance of the remittitur on direct appeal on March 20, 2007. See Norman v. State, Docket No. 47548 (Order of Affirmance, February 20, 2007). Thus, appellant's petition was untimely filed. See NRS 34.726(1). Moreover, appellant's petition was successive because he had previously filed post-conviction petitions 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 petitions. 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).
Norman v. State, Docket No. 52297 (Order of Affirmance, April 23, 2009). Appellant's first, timely post-conviction petition for a writ of habeas corpus was filed on March 5, 2008, but no appeal was taken from the denial of that petition.
Appellant argued that Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), provided good cause to overcome his procedural bars. Even assuming without deciding that Martinez applies to state habeas corpus proceedings, appellant was still untimely because his petition was not filed within a reasonable time of the publishing of that decision. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). Moreover, appellant failed to overcome the presumption of prejudice to the State pursuant to NRS 34.800(2). We therefore conclude that the district court did not err in denying the petition as procedurally barred. 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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______________________, J.
Pickering
______________________, J.
Parraguirre
______________________, J.
Saitta
cc: Hon. Michael Villani, District Judge
Zel Norman
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk