Opinion
No. 62746
12-17-2013
STEVEN FLOYD VOSS, 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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 a proper person appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus. Second Judicial District Court, Washoe County; Jerome Polaha, 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).
Because appellant filed his petition more than ten years after this court issued its remittitur on direct appeal from the judgment of conviction and he has previously filed post-conviction petitions for writs of habeas corpus, the petition was untimely under NRS 34.726(1) and successive under NRS 34.810(2). Therefore, the petition was procedurally barred absent a demonstration of good cause and prejudice. NRS 34.726(1); NRS 34.810(3).
In an attempt to overcome the procedural bars, appellant argued that the Ninth Circuit decisions in Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), and Chambers v. McDaniel, 549 F.3d 1191 (9th Cir. 2008), provide good cause to excuse the delay in his challenge to the Kazalyn instruction used during his trial. Appellant asserted that the legal basis for his challenge did not reasonably exist before Polk and Chambers were decided. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003) ("An impediment external to the defense may be demonstrated by showing 'that the factual or legal basis for a claim was not reasonably available to counsel.'" (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986))).
Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992).
Chambers did not announce a new legal basis; it merely discussed and applied the legal basis announced in Polk. Therefore, Chambers does not provide good cause to excuse the procedural bars to appellant's petition.
On February 28, 2000, this court rejected the Kazalyn instruction in a published opinion. Byford v. State, 116 Nev. 215, 235, 994 P.2d 700, 714 (2000). On September 11, 2007, the Ninth Circuit concluded that the Kazalyn instruction violated the federal constitution by allowing a jury to find a person guilty of first-degree murder without finding all of the elements of the crime beyond a reasonable doubt. Polk, 503 F.3d at 913. And on December 31, 2008, this court rejected the rationale underlying Polk but concluded that Byford applied to all cases that were not final when it was decided. Nika v. State, 124 Nev. 1272, 1287, 198 P.3d 839, 850 (2008).
Appellant filed the instant petition on January 5, 2011, more than two years after Nika was decided, more than three years after Polk was decided, and more than ten years after Byford was decided. We conclude that appellant failed to file his petition within a reasonable time after the legal basis for his challenge became available. See Hathaway, 119 Nev. at 252-53, 71 P.3d at 506 (petitioner must raise a new claim within a reasonable time period after it becomes available). Moreover, we have held that "proper respect for the finality of convictions demands that this ground for good cause be limited to previously unavailable constitutional claims," Clem v. State, 119 Nev. 615, 621, 81 P.3d 521, 525-26 (2003), and Nika makes it clear that Byford did not announce a new constitutional rule, Nika, 124 Nev. at 1288, 198 P.3d at 850.
Even if Voss's claim had been timely raised, he would not be entitled to relief. Voss was convicted of first-degree murder after the jury found that he had carried the victim away with the specific intent of killing her. The jury's finding necessarily means that Voss acted with willfulness, deliberation, and premeditation even as Byford defines these terms. See Byford, 116 Nev. at 236-37, 994 P.3d at 714-15. Furthermore, we concluded on direct appeal that sufficient evidence supported Voss's murder and kidnapping convictions. Voss v. State, Docket No. 32830 (Order Vacating in Part and Remanding in Part, May 24, 2000).
To the extent that appellant also claims that he is actually innocent, we conclude that he has failed to make a colorable showing of actual innocence and that the district court did not err by rejecting his claim. See generally Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
We conclude that the district court did not err in finding that appellant's petition and supplement were untimely, successive, and procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
We have reviewed all documents that appellant has submitted in proper person to the clerk of this court in this matter, and we conclude that no relief based upon those submissions is warranted. To the extent that appellant has attempted to present claims or facts in those submissions which were not previously presented in the proceedings below, we have declined to consider them in the first instance.
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________________, C.J.
Pickering
________________, J.
Hardesty
________________, J.
Cherry
cc: Hon. Jerome Polaha, District Judge
Steven Floyd Voss
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk