Opinion
No. 72238
10-12-2017
HUBERT WILBER DRAW, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Hubert Wilber Draw, Jr, appeals from an order of the district court denying his July 1, 2016, postconviction petition for a writ of habeas corpus. 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). --------
Draw filed his petition nearly six years after issuance of the remittitur on direct appeal on August 16, 2010. See Draw v. State, Docket No. 50560 (Order of Affirmance, July 22, 2010). Draw's petition was therefore untimely filed. See NRS 34.726(1). His petition was also successive and an abuse of the writ. See NRS 34.810(1)(b)(2); NRS 34.810(2); Draw, Jr. v. State, Docket No. 64390 (Order of Affirmance, February 12, 2015). Draw'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, Draw was required to overcome the presumption of prejudice to the State. See NRS 34.800(2).
Draw claimed he had good cause to excuse the procedural bars because he needed to exhaust his claims in state court. Filing a procedurally barred petition for exhaustion purposes is not good cause because Draw's claims were reasonably available to be raised in a timely petition. See Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003); see also Colley v. State, 105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989), abrogated by statute on other grounds as recognized by State v. Huebler, 128 Nev. 192, 197-98 n.2, 275 P.3d 91, 95 n.2 (2012). Further, Draw failed to overcome the presumption of prejudice to the State. Accordingly, we conclude the district court did not err in denying Draw's petition as procedurally barred, and we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. Elissa F. Cadish, District Judge
Hubert Wilber Draw, Jr.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk