Opinion
No. 66919
03-17-2016
KASARD OMAR BROWN, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying appellant Kasard Brown's postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Kenneth C. Cory, Judge.
Brown filed his petition on March 7, 2014, more than 8 years after remittitur issued from his direct appeal on December 8, 2005. Brown v. State, Docket No. 40718 (Order Vacating Prior Order and Affirming the Judgment of Conviction, October 25, 2005). Thus, his petition was untimely filed. NRS 34.726. The petition was also successive because Brown had previously sought postconviction relief. Brown v. State, Docket No. 52829 (Order of Affirmance, April 28, 2011). Accordingly, the petition was procedurally barred absent a demonstration of good cause and prejudice. See NRS 34.726; NRS 34.810(3). Further, because the State pleaded laches, Brown was required to overcome the presumption of prejudice to the State. See NRS 34.800.
Brown argues that he is not required to demonstrate good cause and prejudice because his claims are not new. Brown is mistaken. A petitioner who files a second petition must demonstrate good cause and prejudice for presenting a new claim "or for presenting [a] claim again." NRS 34.810(3)(a) (emphasis added). As an alternative argument, Brown contends that he demonstrated good cause because the factual basis of one of his underlying claims was not reasonably available when he litigated his first postconviction petition. This contention lacks merit; moreover, it was not raised within a reasonable time and would not provide cause to review the remainder of Brown's claims. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). Therefore, we
To the extent Brown argues that postconviction counsel's ineffectiveness and his pursuit of federal remedies constitute good cause, no relief is warranted. See
ORDER the judgment of the district court AFFIRMED.
/s/_________, J.
Hardesty /s/_________, J.
Saitta /s/_________, J.
Pickering
Hon. Kenneth C. Cory, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 870 (2014) (holding that Martinez v. Ryan, 566 U.S. ___, (2012) does not apply to Nevada postconviction procedures); see also Colley v. State, 105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989) (holding that the pursuit of federal remedies does not constitute good cause). We decline to consider Brown's argument regarding institutional interference because it was not fairly raised below.