Opinion
No. 73718-COA
03-20-2019
DAMON J. ARMSTRONG, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Damon J. Armstrong appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on April 29, 2017. Eighth Judicial District Court, Clark County; Elissa F. Cadish, Judge.
This appeal has been submitted for decision without oral argument and we conclude the record is sufficient for our review and briefing is unwarranted. NRAP 34(f)(3), (g).
Armstrong filed, his petition 19 years after issuance of the remittitur on direct appeal on March 18, 1998. See Armstrong v. State, Docket No. 28547 (Order Dismissing Appeal, February 27, 1998). Armstrong's petition was therefore untimely filed. See NRS 34.726(1). Armstrong's petition was also successive. See NRS 34.810(1)(b)(2); NRS 34.810(2). Armstrong's petition was therefore 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). Further, because the State specifically pleaded laches, Armstrong was required to overcome the presumption of prejudice to the State. See NRS 34.800(2).
See Armstrong v. State, Docket No. 56483 (Order of Affirmance, September 15, 2011); Armstrong v. State, Docket No. 34317 (Order of Affirmance, June 11, 2001).
Armstrong claimed the decisions in Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257 (2016), and Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), provided good cause to excuse the procedural bars to his claim that he is entitled to the retroactive application of Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000). We conclude the district court did not err by concluding the cases did not provide good cause to overcome the procedural bars. See Branham v. Warden, 134 Nev. ___, ___, 434 P.3d 313, 316 (Ct. App. 2018).
Armstrong also claimed he could demonstrate a fundamental miscarriage of justice to overcome the procedural bars. A petitioner may overcome procedural bars by demonstrating he is actually innocent such that the failure to consider his petition would result in a fundamental miscarriage of justice. Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001), abrogated on other grounds by Rippo v. State, 134 Nev. ___, ___ n.12, 423 P.3d 1084, 1097 n.12 (2018). Armstrong claimed that "[t]he facts in this case established that [he] only committed a second-degree murder." This is not actual innocence, and Armstrong thus failed to overcome the procedural bars. See Bousley v. United States, 523 U.S. 614, 623 (1998) ("'[A]ctual innocence' means factual innocence, not mere legal insufficiency."). And because he failed to demonstrate a fundamental miscarriage of justice, Armstrong failed to overcome the presumption of prejudice to the State. See NRS 34.800. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
We conclude the district court did not abuse its discretion by declining to appoint postconviction counsel. See NRS 34.750(1); Renteria-Novoa v. State, 133 Nev. 75, 76, 391 P.3d 760, 760-61 (2017). --------
/s/_________, J.
Tao
/s/_________, J.
Gibbons
/s/_________, J.
Bulla cc: Chief Judge, Eighth Judicial District
Damon J. Armstrong
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk