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Fergusen v. State

COURT OF APPEALS OF THE STATE OF NEVADA
Mar 14, 2018
No. 73172 (Nev. App. Mar. 14, 2018)

Opinion

No. 73172

03-14-2018

ANGELO FERGUSEN A/K/A ANGELO FERGUSON, Appellant, v. THE STATE OF NEVADA, Respondent.


ORDER OF AFFIRMANCE

Angelo Fergusen appeals from an order of the district court dismissing the postconviction petition for a writ of habeas corpus he filed on April 4, 2017. Eighth Judicial District Court, Clark County; Jennifer P. Togliatti, Judge.

This appeal has been submitted for decision without oral argument. NRAP 34(f)(3).

Fergusen filed his petition nearly two years after issuance of the remittitur on direct appeal on May 13, 2015. See Fergusen v. State, Docket No. 64665 (Order of Affirmance, April 15, 2015). Thus, Fergusen's petition was untimely filed. See NRS 34.726(1). Fergusen's petition was procedurally barred absent a demonstration of good cause—cause for the delay and undue prejudice. See id.

In his petition, it appears Fergusen claimed he could overcome the procedural bar because he was actually innocent. Fergusen did not demonstrate actual innocence because he failed to show that "it is more likely than not that no reasonable juror would have convicted him in light of . . . new evidence." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). We therefore conclude the district court did not err by dismissing Fergusen's petition as procedurally barred, and we

ORDER the judgment of the district court AFFIRMED.

We note it appears Fergusen filed a timely postconviction petition for a writ of habeas corpus on April 14, 2016. Based on the record before this court, it does not appear the district court has resolved this petition. --------

/s/_________, C.J.

Silver

/s/_________, J.

Tao

/s/_________, J.

Gibbons cc: Hon. Jennifer P. Togliatti, District Judge

Angelo Fergusen

Attorney General/Carson City

Clark County District Attorney

Eighth District Court Clerk


Summaries of

Fergusen v. State

COURT OF APPEALS OF THE STATE OF NEVADA
Mar 14, 2018
No. 73172 (Nev. App. Mar. 14, 2018)
Case details for

Fergusen v. State

Case Details

Full title:ANGELO FERGUSEN A/K/A ANGELO FERGUSON, Appellant, v. THE STATE OF NEVADA…

Court:COURT OF APPEALS OF THE STATE OF NEVADA

Date published: Mar 14, 2018

Citations

No. 73172 (Nev. App. Mar. 14, 2018)