Opinion
No. 68742
12-29-2015
HENRY MIRANDA-FUENTES, 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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 an appeal from an order of the district court denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Stefany Miley, 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).
Appellant Henry Miranda-Fuentes filed his petition on May 8, 2015, more than one year after entry of the judgment of conviction on December 23, 2013. Thus, Miranda-Fuentes's petition was untimely filed. See NRS 34.726(1). Miranda-Fuentes's petition was procedurally barred absent a demonstration of good cause—cause for the delay and undue prejudice. See id.
No direct appeal was taken.
Miranda-Fuentes claimed he had good cause because he had asked his attorney to file a direct appeal and he thought his attorney had done so. The Nevada Supreme Court has held an appeal-deprivation claim may in certain circumstances provide good cause to excuse the filing of an untimely petition. See Hathaway v. State, 119 Nev. 248, 254-55. 71 P.3d 503, 507-08 (2003). In order to demonstrate cause for the delay, a petitioner must demonstrate he actually believed trial counsel had filed an appeal, the belief was objectively reasonable, and he had filed a postconviction petition within a reasonable time after learning that no direct appeal had been filed. Id.
Miranda-Fuentes made no attempt to demonstrate his belief that counsel filed an appeal was objectively reasonable or that he filed this petition within a reasonable time after learning that no direct appeal had been filed. Accordingly, Miranda-Fuentes failed to demonstrate cause for the delay. Therefore, the district court did not err in denying the petition as procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
We have reviewed all documents Miranda-Fuentes has submitted in this matter, and we conclude no relief based upon those submissions is warranted. To the extent Miranda-Fuentes has attempted to present claims or facts in those submissions which were not previously presented in the proceedings below, we decline to consider them in the first instance. --------
/s/_________, C.J.
Gibbons /s/_________, J.
Tao /s/_________, J.
Silver cc: Hon. Stefany Miley, District Judge
Henry Miranda-Fuentes
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk