Opinion
No. 73468
01-09-2018
STEVEN FLOYD VOSS, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Steven Floyd Voss appeals from an order of the district court denying the postconviction petition for a writ of habeas corpus he filed on March 31, 2017. Second Judicial District Court, Washoe County; Jerome M. Polaha, Judge.
This appeal has been submitted for decision without oral argument. NRAP 34(f)(3).
Voss filed his petition nearly 17 years after issuance of the remittitur on direct appeal on June 20, 2000. See Voss v. State, Docket No. 32830 (Order Vacating in Part and Affirming in Part, May 24, 2000). Thus, Voss' petition was untimely filed. See NRS 34.726(1). Moreover, Voss' petition was successive because he had previously filed five postconviction petitions for a writ of habeas corpus. See NRS 34.810(1)(b)(2); NRS 34.810(2). Voss' 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).
Voss v. Warden, Docket No. 69900 (Order Denying Rehearing and Vacating Prior Order and Corrected Order of Affirmance, August 17, 2016); Voss v. Warden, Docket No. 66508 (Order of Affirmance, March 18, 2015); Voss v. State, Docket No. 62746 (Order of Affirmance, December 17, 2013); Voss v. State, Docket No. 54033 (Order of Affirmance, September 29, 2010) (affirming the denial of two separate postconviction petitions for a writ of habeas corpus).
In an attempt to overcome the procedural bars, Voss argues a recent United States Supreme Court case, Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257 (2016), provides good cause for again raising his claim regarding the Kazalyn jury instruction. Even assuming, without deciding, Welch provided good cause, Voss cannot demonstrate actual prejudice to overcome the procedural bar. The Nevada Supreme Court has previously concluded, even had the jury not been given the so-called Kazalyn instruction, Voss would have still been convicted of first-degree murder. See Voss v. State, Docket No. 62746 (Order of Affirmance, December 17, 2013). Therefore, Voss' claim regarding prejudice is barred by the doctrine of law of the case, which cannot be avoided by a more detailed and focused argument. See Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). Accordingly, we conclude the district court did not err by denying this claim.
Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992). --------
To the extent Voss argued he was actually innocent based on the Kazalyn jury instruction and the evidence provided at trial, Voss failed to demonstrate he was actually innocent. Voss failed to demonstrate "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) (emphasis added) (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). Further, Voss' claim regarding the jury instruction involved legal innocence and not factual innocence. See Mitchell v. State, 122 Nev. 1269, 1273-74, 149 P.3d 33, 36 (2006).
Having reviewed the record, we conclude the district court did not err by denying the petition as procedurally barred, and we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. Jerome M. Polaha, District Judge
Steven Floyd Voss
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk