Opinion
No. 74159-COA
03-20-2019
RICKEY DENNIS COOPER, Appellant, v. JO GENTRY, WARDEN, Respondent.
ORDER OF AFFIRMANCE
Rickey Dennis Cooper appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on April 17, 2017. Eighth Judicial District Court, Clark County; Susan Johnson, Judge.
Cooper filed his petition more than 30 years after issuance of the remittitur on direct appeal on June 3, 1986, see Cooper v. State, Docket No. 15653 (Order Dismissing Appeal, May 15, 1986), and 24 years after the effective date of NRS 34.726, see 1991 Nev. Stat., ch. 44, § 5, at 75-76, § 33, at 92; Pellegrini v. State, 117 Nev. 860, 874-75, 34 P.3d 519, 529 (2001), abrogated on other grounds by Rippo v. State, 134 Nev. ___, ___ n.12, 423 P.3d 1084, 1097 n.12 (2018). Cooper's petition was therefore untimely filed. See NRS 34.726(1). Cooper's petition was also successive. See NRS 34.810(1)(b)(2); NRS 34.810(2). Cooper'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, Cooper was required to overcome the presumption of prejudice to the State. See NRS 34.800(2).
Cooper 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, 9.94 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).
Cooper 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, 117 Nev. at 887, 34 P.3d at 537. Cooper claimed that "[t]he facts in this case established that [he] only committed a second-degree murder." This is not actual innocence, and Cooper 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, Cooper failed to overcome the presumption of prejudice to the State. See NRS 34.800. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/s/_________, J.
Tao
/s/_________, J.
Gibbons
/s/_________, J.
Bulla cc: Hon. Susan Johnson, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
See Cooper v. State, Docket No. 44764 (Order of Affirmance, March 2, 2006); Cooper v. State, Docket No. 31667 (Order of Remand, July 24, 2000); Cooper v. Warden, Docket No. 22086 (Order Dismissing Appeal, June 27, 1991); Cooper v. State, Docket No. 18679 (Order Dismissing Appeal, September 21, 1988).