Opinion
No. 84230-COA No. 84236-COA
01-31-2023
George W. LUSTER, Jr., Appellant, v. The STATE of Nevada, Respondent. George W. Luster, Jr., Appellant, v. The State of Nevada ; and Charles Daniels, Director, Nevada Department of Corrections, Respondents.
ORDER OF AFFIRMANCE
Motion to correct an illegal sentence
Luster seeks an order directing the district court to file a final, written order denying his motion to correct an illegal sentence. This court has already issued such an order, see Luster v. State, Docket Nos. 84230-COA, 84236-COA (Order Directing Entry and Transmission of Written Order, January 4, 2023), and the district court entered a written order denying Luster's motion on January 6, 2023. Therefore, we conclude this claim is moot and Luster is not entitled to additional relief.
To the extent Luster challenges the district court's denial of his motion to correct an illegal sentence, Luster failed to include a copy of the motion in his appendix on appeal. Accordingly, we cannot conclude the district court erred by denying his motion. See Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The burden to make a proper appellate record rests on appellant."); see also NRAP 30(b)(3).
Postconviction petition for a writ of habeas corpus
Luster filed his petition more than 21 years after issuance of the remittitur on direct appeal on January 25, 2000. See Luster v. State, 115 Nev. 431, 991 P.2d 466 (1999). Thus, Luster's petition was untimely filed. See NRS 34.726(1). Moreover, Luster's petition was successive because he had previously filed a postconviction petition for a writ of habeas corpus that was decided on the merits, and it constituted an abuse of the writ as he raised claims new and different from those raised in his previous petitions. See NRS 34.810(1)(b)(2) ; NRS 34.810(2). Luster's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1) ; NRS 34.810(1)(b), (3).
Luster v. Daniels, No. 81539-COA, 2021 WL 2025038 (Nev. Ct. App. May 20, 2021) (Order of Affirmance); Luster v. State, No. 70978-COA, 2017 WL 882074 (Nev. Ct. App. Feb. 23, 2017) (Order of Affirmance); Luster v. State, No. 56231, 2011 WL 1044680 (Nev. Mar. 18, 2011) (Order of Affirmance); Luster v. State, Docket No. 46872 (Order of Affirmance, July 5, 2006).
Luster did not allege good cause to overcome the procedural bars in his petition. While Luster alleged good cause below in his reply to the State's response to his postconviction petition, these good cause claims were not properly raised in a reply, and the district court did not err by failing to address them. See NRS 34.750(5) ; Barnhart v. State , 122 Nev. 301, 303, 130 P.3d 650, 651 (2006) (providing that the district court should only consider issues pleaded in the petition or supplemental petition to which the State has had an opportunity to respond).
Luster argues on appeal that his claims should be considered on the merits because the district court found the claims potentially had merit and appointed counsel to investigate them. He argues that good cause thus exists. Application of the procedural bars is mandatory, State v. Eighth Judicial Dist. Court (Riker ), 121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005), and the district court expressly concluded that Luster failed to demonstrate good cause. Therefore, we conclude Luster is not entitled to relief based on this claim.
For the foregoing reasons, we conclude the district court did not err by denying the petition as procedurally barred, and we
ORDER the judgments of the district court AFFIRMED.