Opinion
No. 78893-COA
01-14-2020
JAMES EUGENE HERMANSON, Appellant, v. THE STATE OF NEVADA Respondent.
ORDER OF AFFIRMANCE
James Eugene Hermanson appeals from an order of the district court dismissing a postconviction petition for a writ of habeas corpus. Third Judicial District Court, Lyon County; Leon Aberasturi, Judge.
Hermanson filed his petition on January 9, 2019, more than five years after entry of the judgment of conviction on July 3, 2013. Thus, Hermanson's petition was untimely filed. See NRS 34.726(1). Moreover, Hermanson's petition was successive because he had previously filed a postconviction petition 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 petition. See NRS 34.810(2). Hermanson's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3).
Hermanson did not pursue a direct appeal.
Hermanson v. State, Docket No. 68832-COA (Order of Affirmance, January 19, 2017). --------
In his petition, Hermanson contended it was improper for him to be sentenced prior to the completion of a presentence investigation report (PSI). Hermanson also claimed his trial-level counsel had a conflict of interest. Both of these issues were reasonably available to be raised in a timely-filed petition. Moreover, Hermanson acknowledged the district court had previously addressed his claim concerning the lack of a PSI. Hermanson did not demonstrate an impediment external to the defense prevented him from raising these claims in a timely manner and, therefore, he failed to demonstrate good cause to overcome the procedural bars. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). Accordingly, the district court did not err by dismissing the petition, and we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Bulla cc: Hon. Leon Aberasturi, District Judge
James Eugene Hermanson
Attorney General/Carson City
Lyon County District Attorney
Third District Court Clerk