Opinion
No. 77256-COA
07-09-2019
HERIBERTO TORIBIO-RUIZ, Appellant, v. ISIDRO BACA, WARDEN, Respondent.
ORDER OF AFFIRMANCE
Heriberto Toribio-Ruiz appeals from an order of the district court dismissing a postconviction petition for a writ of habeas corpus. Second Judicial District Court, Washoe County; Connie J. Steinheimer, 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).
Toribio-Ruiz filed his petition on June 21, 2018, almost 11 years after issuance of the remittitur on direct appeal on July 3, 2007. Toribio-Ruiz v. State, Docket No. 45823 (Order of Affirmance, June 7, 2007). Thus, Toribio-Ruiz' petition was untimely filed. See NRS 34.726(1). Moreover, Toribio-Ruiz' 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). Toribio- Ruiz' 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).
Toribio-Ruiz v. State, Docket No. 63567 (Order of Affirmance, July 23, 2014). --------
Toribio-Ruiz claimed he had good cause due to the ineffective assistance of his postconviction counsel during the proceedings for his prior petition. Toribio-Ruiz' claim did not demonstrate good cause because the appointment of postconviction counsel was not statutorily or constitutionally required in this case and "the ineffectiveness of counsel representing a noncapital petitioner does not constitute good cause to excuse a state procedural bar." Brown v. McDaniel, 130 Nev. 565, 571, 331 P.3d 867, 871-72 (2014). Therefore, we conclude the district court did not err by denying Toribio-Ruiz' petition as procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Bulla cc: Hon. Connie J. Steinheimer, District Judge
Heriberto Toribio-Ruiz
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk