Opinion
No. 82130-COA
09-28-2021
Frank Milford PECK, Appellant, v. The STATE of Nevada, Respondent.
Frank Milford Peck Attorney General/Carson City Washoe County District Attorney
Frank Milford Peck
Attorney General/Carson City
Washoe County District Attorney
ORDER OF AFFIRMANCE
Peck filed his petition nearly 20 years after issuance of the remittitur on direct appeal on September 19, 2000. See Peck v. State , 116 Nev. 840, 7 P.3d 470 (2000). Thus, Peck's petition was untimely filed. See NRS 34.726(1). Moreover, Peck's petition was successive because he had previously filed postconviction petitions for a writ of habeas corpus that were 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). Peck's 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).
See Peck v. State , Docket No. 72849-COA (Order of Affirmance, December 14. 2017); Peck v. State , Docket No. 65521 (Order of Affirmance, November 13, 2014) : Peck v. State , Docket No. 60878 (Order of Affirmance, January 16, 2013) ; Peck v. State , Docket No. 60343 (Order of Affirmance. December 12, 2012) ; Peck v. State, Docket No. 57968 (Order of Affirmance. July 15, 2011) ; Peck v. State , Docket No. 42672 (Order of Affirmance, July 11, 2005).
First, Peck alleged he had good cause because the courts lacked subject matter jurisdiction and the Nevada Revised Statutes lacked an enacting clause. This court has already considered and rejected this good-cause claim. See Peck v. State, Docket No. 72849-COA (Order of Affirmance, December 14, 2017). Because this claim has already been considered and rejected, the doctrine of the law of the case prevents further consideration of this issue. See Hall v. State , 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975).
Second, Peck appeared to claim he had cause for his delay because the "information [was] not contained in prison law libraries." "[A]n inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense." See Lewis v. Casey , 518 U.S. 343, 351 (1996). Rather, a prisoner must "demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim." See id. Peck did not explain how a lack of information in the law library caused his entire delay in filing the instant petition. Moreover, Peck had previously made the same jurisdiction claim, which indicated he was able to access the information. Therefore, we conclude the district court did not err by denying Peck's petition as procedurally barred, see Hathaway v. State , 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003), and we
ORDER the judgment of the district court AFFIRMED.
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