Opinion
No. 63402
05-13-2014
ROSS ERIC BARTON, 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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 a post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Elissa F. Cadish, Judge.
Appellant filed his petition on June 28, 2012, more than 15 years after issuance of the remittitur on direct appeal on January 8, 1997. Barton u. State, Docket No. 27076 (Order Dismissing Appeal, December 20, 1996). Thus, appellant's petition was untimely filed. See NRS 34.726(1). Moreover, appellant's petition was successive because he had previously filed four post-conviction petitions 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 petitions. See NRS 34.810(l)(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(l)(b); NRS 34.810(3). Moreover, because the State specifically pleaded laches, appellant was required to overcome the rebuttable presumption of prejudice. NRS 34.800(2).
Barton v. State, 117 Nev. 686, 30 P.3d 1103 (2001); Barton v. State, Docket No. 53122 (Order of Affirmance, February 4, 2010); Barton v. State, Docket No. 57967 (Order of Affirmance, July 15, 2011); Barton v. State, Docket No. 59805 (Order of Affirmance, September 12, 2012).
Appellant first argues that Rose v. State, 127 Nev. ___, 255 P.3d 291 (2011), which discussed the second-degree-felony-murder doctrine, provides good cause for his claim that the trial court improperly instructed the jury regarding second-degree felony murder. Appellant also argues that Rose has retroactive effect and that the district court erred by failing to conclude that appellant should receive a new trial based upon retroactive application of Rose. Appellant's claim is without merit. Appellant's reliance upon Rose is misplaced as the State did not rely upon the second-degree-felony-murder rule. Rather, the State presented evidence of appellant's mental state, arguing that he acted with the intent to kill. This court determined on appellant's direct appeal that there was substantial evidence that appellant intended to kill the victim. Barton v. State, Docket No. 27076 (Order Dismissing Appeal, December 20, 1996). As there was substantial evidence that appellant intended to kill the victim, a later case discussing the second-degree-felony-murder rule, such as Rose, has no bearing upon appellant's case. Accordingly, appellant fails to demonstrate that Rose provides good cause and actual prejudice to overcome the procedural bars.
Appellant also argues that error regarding the second-degree-felony-murder instruction is structural error and therefore, he is entitled to a new trial without a consideration of prejudice related to this claim. Appellant's claim is without merit. As discussed in Rose, this court reviews claims regarding erroneous instructions for second-degree felony murder under a harmless error standard. 127 Nev. at ___, 255 P.3d at 295, 298.
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Second, appellant argues that Martinez v. Ryan, 566 U.S. ___, ___, 132 S. Ct. 1309, 1315, 1319-20 (2012), provides good cause to overcome the procedural bars. However, appellant merely cites to Martinez and does not discuss how that case would provide good cause or how his case was affected by the holding of Martinez. Accordingly, appellant fails to provide any cogent argument as to how Martinez applies to his case. "It is appellant's responsibility to present relevant authority and cogent argument; issues not so presented need not be addressed by this court." Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987). Thus, we need not address this claim.
In addition, appellant fails to overcome the presumption of prejudice to the State. Therefore, the district court did not err in denying the petition as procedurally barred and barred by laches. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
__________, J.
Hardesty
__________, J.
Douglas
__________, J.
Cherry
cc: Hon. Elissa F. Cadish, District Judge
Nguyen & Lay
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk