Opinion
No. 64096
02-13-2014
MARCEL D. THOMPSON, 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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. Second Judicial District Court, Washoe County; Jerome Polaha, 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 July 11, 2013, more than seventeen years after issuance of the remittitur on direct appeal on January 9, 1996. Thompson v. State, Docket No. 26129 (Order Dismissing Appeal, December 19, 1995). 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. 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). A petitioner may be entitled to review of defaulted claims if failure to review the claims would result in a fundamental miscarriage of justice. Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). In order to demonstrate a fundamental miscarriage of justice, a petitioner must make a colorable showing of actual innocence of the crime. Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
Thompson v. State, Docket No. 32894 (Order Dismissing Appeal, July 7, 2000). Appellant also filed a petition in 1999, which he voluntarily dismissed, and appellant litigated a procedurally barred petition in 2004. Thompson v. State, Docket No. 44707 (Order of Affirmance, April 21, 2005).
Appellant did not attempt to demonstrate good cause to excuse the procedural defects. Rather, appellant argued that he was actually innocent because the court did not conduct an out-of-court hearing regarding the victim's hearsay testimony as required by NRS 51.385. Appellant did not demonstrate actual innocence because his claim involved legal error and he failed to show that "it is more likely than not that no reasonable juror would have convicted him in light of . . . new evidence." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001); Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). We therefore conclude that the district court did not err in denying appellant's petition as procedurally barred. Accordingly, we
The district court incorrectly applied NRS 34.800(2) as the State is required to plead statutory laches pursuant to this provision. Nevertheless, the district court reached the correct result in denying the petition for the reasons discussed above.
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ORDER the judgment of the district court AFFIRMED.
__________, J.
Pickering
__________, J.
Parraguirre
__________, J.
Saitta
cc: Hon. Jerome Polaha, District Judge
Marcel D. Thompson
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk