Opinion
No. 61480
04-23-2013
BERNABI ISIORDIA BERMUDEZ, 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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 a proper person appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus. Second Judicial District Court, Washoe County; Jerome Polaha, Judge.
This appeal has been submitted for decision without oral argument, NRAP 34(f)(3), and we conclude that the record is sufficient for our review and briefing is unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975).
Appellant filed his petition on June 12, 2012, more than one year after entry of the judgment of conviction on June 7, 2011. Thus, appellant's petition was untimely filed. See NRS 34.726(1). Appellant's petition was procedurally barred absent a demonstration of cause for the delay and undue prejudice. See id. Appellant did not attempt to demonstrate cause for the delay in filing his petition. Thus, we conclude that the district court did not err in denying the petition as procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
We have reviewed all documents that appellant has submitted in proper person to the clerk of this court in this matter, and we conclude that no relief based upon those submissions is warranted. To the extent that appellant has attempted to present claims or facts in those submissions which were not previously presented in the proceedings below, we have declined to consider them in the first instance.
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_________________, J.
Hardesty
_________________, J.
Parraguirre
CHERRY, J., dissenting:
The district court denied the petition without having the State respond to the petition and without providing appellant an opportunity to provide cause for the delay. While the district court may summarily deny a petition for being successive, see NRS 34.745(4), nothing in NRS chapter 34 expressly permits the district court to summarily deny an untimely petition. Rather, NRS 34.745(1) requires the district court judge to order the State to file a response or answer to the petition. I would reverse the denial of the petition and remand to provide appellant an opportunity to demonstrate cause for the delay, particularly in light of the very minimal delay in filing—six days.
_________________, J.
Cherry
cc: Hon. Jerome Polaha, District Judge
Bernabi Isiordia Bermudez
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk