Opinion
No. 73309-COA
03-20-2019
JONATHAN EDWARD WATKINS, Appellant, v. ISIDRO BACA, WARDEN, NEVADA STATE PRISON, Respondent.
ORDER OF AFFIRMANCE
Jonathan Edward Watkins appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on April 14, 2017. Second Judicial District Court, Washoe County; Patrick Flanagan, Judge.
This appeal has been submitted for decision without oral argument. NRAP 34(f)(3).
Watkins filed his petition more than 17 years after issuance of the remittitur on direct appeal on September 28, 1999. See Watkins v. State, Docket No. 30958 (Order Dismissing Appeal, September 1, 1999). Watkins' petition was therefore untimely filed. See NRS 34.726(1). Watkins' petition was also successive and an abuse of the writ. NRS 34.810(1)(b)(2); NRS 34.810(2). Watkins' petition was therefore 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).
See Watkins v. State, Docket No. 68243 (Order of Reversal and Remand, March 17, 2016); Watkins v. Skolnik, Docket No. 56979 (Order of Affirmance, November 18, 2011); Watkins v. State, Docket No. 40651 (Order of Affirmance, May 5, 2004).
Watkins claimed the decisions in Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257 (2016), and Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), provided good cause to excuse the procedural bars to his claim that he is entitled to the retroactive application of Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000). We conclude the district court did not err by concluding the cases did not provide good cause to overcome the procedural bars. See Branham v. Warden, 134 Nev. ___, ___, 434 P.3d 313, 316 (Ct. App. 2018).
Watkins also claimed he could demonstrate a fundamental miscarriage of justice to overcome the procedural bars. A petitioner may overcome procedural bars by demonstrating he is actually innocent such that the failure to consider his petition would result in a fundamental miscarriage of justice. Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001), abrogated on other grounds by Rippo v. State, 134 Nev. ___, ___ n.12, 423 P.3d 1084, 1097 n.12 (2018). Watkins claimed that "[t]he facts in this case established that [he] only committed a second-degree murder." This is not actual innocence, and Watkins thus failed to overcome the procedural bars. See Bousley v. United States, 523 U.S. 614, 623 (1998) ("'[A]ctual innocence' means factual innocence, not mere legal insufficiency."). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
We conclude the district court did not abuse its discretion by declining to appoint postconviction counsel. See NRS 34.750(1); Renteria-Novoa v. State, 133 Nev. 75, 76, 391 P.3d 760, 760-61 (2017). --------
/s/_________, J.
Tao
/s/_________, J.
Gibbons
/s/_________, J.
Bulla cc: Chief Judge, Second Judicial District
Jonathan Edward Watkins
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk