Opinion
No. 65288
04-14-2016
DONALD RAY LEE, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
This is a pro se appeal from an order of the district court denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Elissa F. Cadish, 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.2d 910, 911 (1975). We have received and considered the pro se memorandum to the court.
Appellant filed his petition on October 28, 2013, more than 22 years after issuance of the remittitur on direct appeal on April 11, 1991. Lee v. State, Docket No. 17214 (Order Dismissing Appeal, September 14, 1990). Thus, appellant's petition was untimely filed. See NRS 34.726(1). Moreover, appellant's petition was successive because he had previously litigated two postconviction petitions, 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(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).
Further, the 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; Pellegrini v. State, 117 Nev. 860, 874-75, 34 P.3d 519, 529 (2001).
Lee v. State, Docket No. 26920 (Order Dismissing Appeal, June 23, 1998); Lee v. Warden, Docket No. 43697 (Order of Affirmance, May 19, 2005).
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. Appellant's argument regarding new case law did not provide good cause for grounds 2 and 3, which were reasonably available to be raised in a timely petition. See Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003). The decision of the California Supreme Court in People v. Caballero, 282 P.3d 291 (Cal. 2012) did not provide good cause as it is not binding authority. Appellant's reliance upon Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), is misplaced as Nevada did not have a mandatory sentencing scheme at the time that appellant committed his crimes, and thus Miller would not provide good cause. Appellant's petition was filed three years after the decision in Graham v. Florida, 560 U.S. 48 (2010), and thus the Graham decision would not provide good cause in this case to litigate any claims relating to his parole eligibility on counts 1 through 4. Appellant further failed to overcome the presumption of prejudice to the State.
To the extent that appellant claimed that his sentence was illegal, appellant failed to demonstrate that his sentence exceeded the maximum allowed by statute at the time he committed his crime. See 1977 Nev. Stat, ch. 430, § 82, at 864-65 (NRS 200.030). NRS 176.025 at the time appellant was convicted did not preclude a sentence of life without the possibility of parole. See 1967 Nev. Stat., ch. 523, § 232, at 1432.
The decision in Graham would not provide good cause to litigate any claims relating to his murder conviction as the decision in Graham only applied to nonhomicide offenses. See 560 U.S. at 82. Further, the 2015 amendments to NRS 176.025 do not apply to convictions predating October 1, 2015. See 2015 Nev. Stat., ch. 152, §§ 2, 5, at 618-19. --------
Nevertheless, we note that appellant's concern regarding the availability of parole has been addressed by legislative action during the pendency of these proceedings. In 2015, the Legislature enacted Assembly Bill 267, which makes appellant eligible for parole after serving 20 calendar years. 2015 Nev. Stat., ch. 152, § 3, at 618 (providing that a prisoner who was sentenced as an adult for an offense or offenses that resulted in the death of only one victim that was committed when the prisoner was less than 18 years of age is eligible for parole when the prisoner has served 20 calendar years of incarceration); see also State v. Boston, 131 Nev., Adv. Op. 98, 363 P.3d 453 (2015) (concluding that A.B. 267 applies to aggregate sentences). No additional relief would be required under the cases referenced by appellant even had he overcome the procedural bars to his petition. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Parraguirre /s/_________, J.
Douglas /s/_________, J.
Gibbons cc: Hon. Elissa F. Cadish, District Judge
Donald Ray Lee
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk