Opinion
No. 71922
10-12-2017
DARRIS TREMEL TAILOR, A/K/A DARRIS TREMEL TAYLOR, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Darris Tremel Tailor appeals from an order of the district court denying the postconviction petition for a writ of habeas corpus he filed on August 4, 2016. Eighth Judicial District Court, Clark County; William D. Kephart, Judge.
This appeal has been submitted for decision without oral argument. NEAP 34(f)(3).
Tailor filed his petition nearly 14 years after issuance of the remittitur on direct appeal on November 8, 2002. Taylor v. State, Docket No. 36653 (Order of Affirmance, August 21, 2002). Thus, Tailor's petition was untimely filed. See NRS 34.726(1). Moreover, Tailor'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(1)(b)(2); NRS 34.810(2). Tailor's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.8l0(1)(b); NRS 34.810(3). Moreover, because the State specifically pleaded laches, Tailor was required to overcome the rebuttable presumption of prejudice. NRS 34.800(2).
Taylor v. State, Docket Nos. 45911, 46190 (Order of Affirmance, November 22, 2006).
In his petition below, Tailor claimed he had good cause to raise his claim regarding the premeditation instruction given at his trial because of the decisions in Riley v. State, 786 F.3d 719 (9th Cir. 2015) and Cardoza v. State, Docket No. 66463 (Order Affirming in Part, Reversing in Part, and Remanding, April 14, 2016). The district court found Tailor failed to demonstrate good cause to overcome the procedural bars and failed to overcome the rebuttable presumption of prejudice to the State. The district court then denied the petition.
On appeal, Tailor does not challenge the district court's reasons for denying his petition. Instead, Tailor raises a new good cause claim arguing the United States Supreme Court has altered the retroactivity rules and this new caselaw provides him good cause. We decline to consider Tailor's new good cause claim on appeal because he did not raise it in his petition filed below. See McNelton v. State, 115 Nev. 396, 416, 990 P.2d 1263, 1276 (1999). Further, we conclude the district court did not err by denying the petition as procedurally barred. Accordingly, we
We also conclude the district court did not abuse its discretion by denying Tailor's motion for the appointment of counsel. See NRS 34.750(1); Renteria-Novoa v. State, 133 Nev. ___, ___, 391 P.3d 760, 760-61 (2017).
ORDER the judgment of the district court AFFIRMED.
The Honorable Abbi Silver did not participate in the decision in this matter. --------
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. William D. Kephart, District Judge
Darris Tremel Tailor
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk