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