Opinion
No. 66878
06-16-2015
TARRELL M. SMITH, 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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 an untimely post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.
Appellant Tarrell Smith filed his petition on June 22, 2012, 4 years after entry of the judgment of conviction on April 29, 2008. Thus, Smith's petition was untimely filed. See NRS 34.726(1). Moreover, Smith's 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(1)(b)(2); NRS 34.810(2). Smith'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).
Relying in part on Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), Smith argued ineffective assistance of post-conviction counsel excused his procedural defects. Ineffective assistance of post-conviction counsel would not be good cause in the instant case because the appointment of counsel in the prior post-conviction proceedings was not statutorily or constitutionally required. Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997); McKague v. Warden, 112 Nev. 159, 164, 912 P.2d 255, 258 (1996). Further, the Nevada Supreme Court has held Martinez does not apply to Nevada's statutory post-conviction procedures, see Brown v. McDaniel, 130 Nev. ___, ___, 331 P.3d 867, 871-72 (2014), and thus, Martinez does not provide good cause for this late and successive petition. Therefore, 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. Jessie Elizabeth Walsh, District Judge
Nobles & Yanez, PLLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk