Wheeler (Michael) v. Warden
Wheeler (Michael) v. Warden
Opinion
34.810(2). Appellant'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).
First, appellant claimed that he had good cause to overcome the procedural bars because his appellate counsel was ineffective.
Appellant's claim lacked merit because a procedurally barred claim of ineffective assistance of counsel cannot constitute cause for additional claims of ineffective assistance of counsel. See Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003). Moreover, appellant did not explain why he could not have raised claims of ineffective assistance of appellate counsel in a timely petition. See id. Second, appellant claimed that he had good cause due to ineffective assistance of post-conviction counsel during the litigation of his first petition. Appellant's claim lacked merit as appellant had no statutory right to post-conviction counsel, and thus the ineffective assistance of post-conviction counsel did not provide good cause for a successive and untimely petition. See McKague v. Warden, 112 Nev. 159, 164-65 & n.5, 912 P.2d 255, 258 & n.5 (1996); Crump v. Warden, 113 Nev. 293, 303 & n.5, 934 P.2d 247, 253 & n.5 (1997); see also Brown v. McDaniel, 130 Nev. „ P.3d . (Adv. Op. No. 60, August 7, 2014) (explaining that post-conviction counsel's performance does not constitute good cause to excuse the procedural bars unless the appointment of post-conviction counsel was mandated by statute).
Therefore, the district court did not err in dismissing the petition as procedurally barred.
Finally, appellant claimed it would be a fundamental miscarriage of justice if his petition was procedurally barred. In order to demonstrate a fundamental miscarriage of justice, a petitioner must make SUPREME COURT a colorable showing of actual innocence—factual innocence, not legal OF NEVADA (0) I947A innocence. Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001); Calderon v. Thompson, 523 U.S. 538, 559 (1998). Appellant did not demonstrate actual innocence as he failed to show that "it is more likely than not that no reasonable juror would have convicted him in light of . . . new evidence."' Calderon, 523 U.S. at 559 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini, 117 Nev. at 887, 34 P.3d at 537; Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996).
Therefore, the district court did not err in dismissing the petition as procedurally barred. Accordingly, we ORDER the judgment of the district court AFFIRMED. 3
Hardesty dza J. la7 oug as
cc: Hon. Scott N. Freeman, District Judge Michael Ray Wheeler Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk
3We 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.
SUPREME COURT OF NEVADA (0) 1947A er,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.