Opinion
No. 71195
09-13-2017
LEONARD DANIEL VIGNOLO, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; William D. Kephart, Judge. We conclude that the district court did not err by denying the petition and therefore affirm.
This appeal has been submitted for decision on the record without briefing or oral argument. NRAP 34(f)(3), (g); see also NRAP 31(d)(1); Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975).
Appellant filed his petition on May 4, 2016, more than 23 years after remittitur issued from his direct appeal in 1992. Vignolo v. State, Docket No. 22223 (Order Dismissing Appeal, March 5, 1992). Thus, the petition was untimely filed. See NRS 34.726(1). The petition was also successive pursuant to NRS 34.810(1)(b)(2) because appellant had previously sought postconviction relief. Vignolo v. State, Docket No. 26580 (Order Dismissing Appeal, June 27, 1995); Vignolo v. State, Docket No. 31856 (Order Dismissing Appeal, July 13, 2000). Accordingly, the petition was procedurally barred absent a demonstration of good cause and prejudice. See NRS 34.726(1); NRS 34.810(1)(b), (3). And because the State specifically pleaded laches, appellant was required to overcome the presumption of prejudice to the State. See NRS 34.800(2).
We conclude that the district court did not err by denying appellant's postconviction petition. Appellant's reliance on Martinez v. Ryan, 566 U.S. 1 (2012), and Riley v. McDaniel, 786 F.3d 719, 721 (9th Cir. 2015), as good cause to excuse the procedural bars was misplaced. See Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 871 (2014) (holding that Martinez does not apply to Nevada postconviction procedures); Leavitt v. State, 132 Nev., Adv. Op. 03, 386 P.3d 620 (2016) (holding that Riley does not establish good cause). Appellant also failed to demonstrate that failure to consider his claims would result in a fundamental miscarriage of justice, see Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001), and to overcome the presumption of prejudice to the State, see NRS 34.800(2). Finally, although appellant purported to challenge the jurisdiction of the district court, his claim did not implicate the district court's jurisdiction. Nev. Const. Art. 6 § 6. Accordingly, we
Although the district court erroneously focused on whether appellant's claims were frivolous when denying his motion for the appointment of counsel, see Renteria-Novoa v. State, 133 Nev., Adv. Op. 11, 391 P.3d 760, 762 (2017), we nevertheless conclude that it correctly denied the motion, see NRS 34.750(1). --------
ORDER the judgment of the district court AFFIRMED.
/s/_________, J.
Douglas
/s/_________, J.
Gibbons
/s/_________, J.
Pickering cc: Hon. William D. Kephart, District Judge
Leonard Daniel Vignolo, Jr.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk