Petty (Anthony) v. State

petition was procedurally barred absent a demonstration of good cause and prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3). Petty argued that the holdings in Martinez v. Ryan, 566 U.S. 132 S. Ct. 1309 (2012), and Ha Van Nguyen v. Curry, 736 F.3d 1287, 1289 (9th Cir. 2013), constitute good cause to excuse the procedural bars. Petty's reliance on these cases is misplaced because the appointment of counsel in his prior post-conviction proceedings was not statutorily or constitutionally required. See Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997); MeKague v. Warden, 112 Nev. 159, 164, 912 P.2d 255, 258 (1996). Further, Martinez does not apply to Nevada's post- conviction procedures. Brown v. McDaniel, 130 Nev. Adv. Op. 60, 331 P.3d 867, 870 (2014). Finally, Petty failed to demonstrate that the failure to consider his claims amounts to a fundamental miscarriage of justice. See Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). Accordingly, we conclude that the district court did not err in denying the petition as procedurally barred, and we

ORDER the judgment of the district court AFFIRMED.

71 --/CLA- t-P-4-4 1Z1 , C.J. Hardesty

Paii-aguirre

CHERRY, J., dissenting:

I would extend the equitable rule recognized in Martinez to this case because appellant was convicted of murder and is facing a severe sentence. See Brown v. McDaniel, 130 Nev. Adv. Op. 60, 331 P.3d 867, SUPREME COURT

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NEVADA (0) 1947A 97t40/4 875 (2014) (Cherry, J., dissenting). Accordingly, I would reverse and remand for the district court to determine whether appellant can demonstrate a substantial underlying ineffective-assistance-of-trial- counsel claim that was omitted due to the ineffective assistance of post- conviction counsel. I therefore dissent.

cc: Hon. Michelle Leavitt, District Judge

Anthony Edward Petty

Attorney General/Carson City

Clark County District Attorney

Eighth District Court Clerk

SUPREME COURT

OF

NEVADA (0) 1947A )4S4.)