Opinion
No. 70604
02-23-2017
JUAN GARCIA, A/K/A JACOBO J. GARCIA, Appellant, v. BRIAN E. WILLIAMS, WARDEN, Respondent.
ORDER OF AFFIRMANCE
Appellant Juan Garcia appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Michelle Leavitt, 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).
Garcia filed his petition on November 4, 2015, more than eight years after issuance of the remittitur from Garcia's direct appeal filed pursuant to Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994) on June 27, 2007. Thus, Garcia's petition was untimely filed. See NRS 34.726(1). Moreover, Garcia's petition was successive because he had previously filed several postconviction petitions for a writ of habeas corpus, and it constituted an abuse of the writ as he raised claims new and different from those raised in his previous petitions. See NRS 34.810(1)(b)(2); NRS 34.810(2). Garcia's petition was 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).
Garcia v. State, Docket No. 47059 (Order Affirming in Part and Reversing in Part and Remanding, May 31, 2007). Following that decision the district court entered an amended judgment of conviction on December 3, 2007. Garcia did not file a direct appeal challenging the amended judgment of conviction.
Garcia v. State, Docket No. 65158 (Order of Affirmance, July 23, 2014); Garcia v. State, Docket No. 62119 (Order of Affirmance, July 23, 2013); Garcia v. State, Docket No. 56137 (Order of Affirmance, March 29, 2011).
First, Garcia claimed the decisions in Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), Trevino v. Thaler, 566 U.S. ___, 133 S. Ct. 1911 (2013), and Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013), provided good cause because he did not have counsel appointed to assist him with the litigation of his prior postconviction petitions. The Nevada Supreme Court has held Martinez does not apply to Nevada's statutory postconviction procedures. See Brown v. McDaniel, 130 Nev. ___, ___, 331 P.3d 867, 871-72 (2014). Thus, the decision in Martinez did not provide good cause for filing a late and successive petition. And because Trevino and Nguyen merely discussed and applied the decision in Martinez, those decisions also did not provide good cause to overcome the procedural bars.
Next, Garcia claimed the procedural bars should not apply because failure to consider his claims on the merits would result in a fundamental miscarriage of justice. Garcia asserts he suffers from a fundamental miscarriage of justice because the kidnapping was incidental to the robbery and he did not receive a proper direct appeal.
In order to demonstrate a fundamental miscarriage of justice, a petitioner must make a colorable showing of actual innocence—factual innocence, not legal innocence. Calderon v. Thompson, 523 U.S. 538, 559 (1998); Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). To prove actual innocence as a gateway to reach procedurally-barred constitutional claims of error, a petitioner must show "'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)). Garcia's claims failed to meet that narrow standard. Therefore, the district court did not err in denying Garcia's petition as procedurally barred. Accordingly, we
Garcia also appears to assert the Nevada Revised Statutes are void due to the failure to contain enacting clauses. However, Garcia did not raise this issue in the instant petition before the district court and we decline to consider this issue in the first instance on appeal. See McNelton v. State, 115 Nev. 396, 416, 990 P.2d 1263, 1276 (1999).
ORDER the judgment of the district court AFFIRMED.
The Honorable Jerome T. Tao, Judge, did not participate in the decision in this matter. --------
/s/_________, C.J.
Silver
/s/_________, J.
Gibbons cc: Hon. Michelle Leavitt, District Judge
Juan Jacobo Garcia
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk