Opinion
No. 62070
03-27-2014
ALBERT N. LEE, Appellant, v. THE STATE OF NEVADA, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
This is a proper person appeal from an order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Michael Villani, Judge.
This appeal has been submitted for decision without oral argument, NRAP 34(f)(3), and we conclude that the record is sufficient for our review and briefing is unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d910, 911(1975).
Appellant filed his petition on July 25, 2012, twenty-one years after issuance of the remittitur on direct appeal on August 6, 1991. Lee v. State, 107 Nev. 507, 813 P.2d 2010 (1991). Thus, appellant's petition was untimely filed. See NRS 34.726(1). Moreover, appellant's petition was successive because he had previously filed five post-conviction petitions for a writ of habeas corpus. See NRS 34.810(1)(b)(2); NRS 34.810(2). Appellant'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). Moreover, because the State specifically pleaded laches, appellant was required to overcome the rebuttable presumption of prejudice. NRS 34.800(2). Based upon our review of the record on appeal, we conclude that the district court did not err in denying the petition as procedurally barred for the reasons discussed below.
Even assuming that the deadline for filing a habeas corpus petition commenced on January 1, 1993, the date of the amendments to NRS chapter 34, appellant's petition was filed more than 19 years after the effective date of NRS 34.726. See 1991 Nev. Stat., ch. 44, §§ 5, 33, at 75-76, 92.
Lee v. State, Docket No. 24230 (Order Dismissing Appeal, August 26, 1993); Lee v. State, Docket No. 46164 (Order of Affirmance, February 24, 2006); Lee v. State, Docket No. 49208 (Order of Affirmance, September 25, 2007); Lee v. State, Docket No. 58865 (Order of Affirmance, February 8, 2012) (affirmed the denial of two petitions).
In an attempt to demonstrate good cause to overcome the procedural bars appellant stated that the claims he was raising in his petition were "clear violations of his constitutional rights." Appellant failed to demonstrate good cause because he failed to demonstrate that these claims were not or could not have been raised in a timely petition.
To the extent that appellant claimed that he was actually innocent, appellant raised these claims of actual innocence in his prior petitions, and this court considered and rejected those arguments. The doctrine of law of the case prevents further litigation of these arguments and cannot be avoided by a more detailed and precisely focused argument. See Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). Further, even assuming that appellant raised relevant new facts of actual innocence not previously considered, appellant 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); Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). Thus, appellant failed to overcome the presumption of prejudice to the State. We therefore conclude that the district court did not err in denying appellant's petition as procedurally barred, and we
ORDER the judgment of the district court AFFIRMED.
We decline to consider the district court's decision to designate appellant a vexatious litigant and to enter a restrictive order. This decision should be challenged in an original petition for a writ of mandamus filed in this court. See Peck v. Crouser, 129 Nev. ___, ___, 295 P.3d 586, 588 (2013).
We have reviewed all documents that appellant has submitted in proper person to the clerk of this court in this matter, and we conclude that no relief based upon those submissions is warranted. To the extent that appellant has attempted to present claims or facts in those submissions which were not previously presented in the proceedings below, we have declined to consider them in the first instance.
_________________, J.
Hardesty
_________________, J.
Douglas
_________________, J.
Cherry
cc: Hon. Michael Villani, District Judge
Albert N. Lee
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk