Opinion
No. 68299
12-18-2015
DARION NICHOLSON, 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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; 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).
Appellant Darion Nicholson filed his petition on May 22, 2015, more than ten years after issuance of the remittitur on direct appeal on May 6, 2005. Nicholson v. State, Docket No. 44461 (Order of Affirmance, April 11, 2005). Thus, Nicholson's petition was untimely filed. See NRS 34.726(1). Moreover, Nicholson's petition was successive because he had previously filed two 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(2). Nicholson's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3).
Nicholson v. State, Docket No. 56516 (January 13, 2011); Nicholson v. State, Docket No. 47182 (Order of Affirmance, July 28, 2006). --------
First, relying in part on Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), Nicholson claimed he had good cause because he was not appointed counsel in the first postconviction proceedings. We conclude this argument lacked merit. The appointment of counsel was discretionary in the first postconviction proceedings, see NRS 34.750(1), and Nicholson failed to demonstrate an abuse of discretion. Further, 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 failure to appoint postconviction counsel and the decision in Martinez did not provide good cause for this late and successive petition.
Second. Nicholson claimed failure to consider his claims of ineffective assistance of counsel on the merits would result in a fundamental miscarriage of justice. 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). Nicholson did not attempt to demonstrate his factual innocence. Therefore, Nicholson failed to show "it is more likely than not that no reasonable juror would have convicted him in light of . . . new evidence." Calderon, 523 U.S. at 559 (quoting Schlup v. Delo, 513 U.S. 298, 327, (1995)); see also Pellegrini, 117 Nev. at 887, 34 P.3d at 537; Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). We conclude the district court did not err in denying the petition as procedurally barred, and we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver cc: Hon. Michelle Leavitt, District Judge
Darion Nicholson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk