Opinion
No. 73097
12-14-2017
ALEXANDER BERNARD BAYOT, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Alexander Bernard Bayot appeals from a district court order denying the postconviction petition for a writ of habeas corpus he filed on December 29, 2016. Eighth Judicial District Court, Clark County; Eric Johnson, Judge.
This appeal has been submitted for decision without oral argument. NRAP 34(f)(3).
Bayot's petition was untimely because it was filed more than four years after the remittitur on direct appeal was issued on December 13, 2012, and it was successive because he had previously filed a postconviction petition for a writ of habeas corpus. See NRS 34.726(1); NRS 34.810(2). Therefore, his petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3).
See Bayot v. State, Docket No. 59410 (Order of Affirmance, November 15, 2012).
See Bayot v. State, Docket No. 64070 (Order of Affirmance, March 12, 2014).
Bayot claimed he had good cause to excuse the procedural bars because the State withheld a second letter from the Las Vegas Metropolitan Citizen Review Board, in violation of Brady v. Maryland, 373 U.S. 83 (1963). "[However,] a Brady claim still must be raised within a reasonable time after the withheld evidence was disclosed or discovered by the defense." State v. Huebler, 128 Nev. 192, 198 n.3, 275 P.3d 91, 95 n.3 (2012). Bayot raised his Brady claim more than three years after he discovered the second letter.
Bayot claims on appeal there is good cause to excuse the procedural bars because the second letter is newly discovered evidence that entitles him to a new trial or relief from his judgment of conviction. Bayot did not raise this good-cause claim in his petition, and we decline to consider it for the first time on appeal. See Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 (1991), overruled on other rounds by Means v. State, 120 Nev. 1001, 1012-13, 103 P.3d 25, 33 (2004).
We conclude the delay was unreasonable, the petition was procedurally barred, and the district court did not err in denying it as such. See State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005) (explaining the application of procedural bars is mandatory). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
We also 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. ___, ___, 391 P.3d 760, 760-61 (2017).
The Honorable Jerome Tao did not participate in this matter.
/s/_________, C.J.
Silver
/s/_________, J.
Gibbons cc: Hon. Eric Johnson, District Judge
Alexander Bernard Bayot
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk