Leslie v. State, 051519 NVSC, 75770

Docket Nº:75770
Opinion Judge:Gibbons C.J.
Party Name:WILBERT EMORY LESLIE, III, Appellant, v. THE STATE OF NEVADA, Respondent.
Judge Panel:Stiglich J., Silver J. Hon. Stefany Miley, District Judge.
Case Date:May 15, 2019
Court:Supreme Court of Nevada
 
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WILBERT EMORY LESLIE, III, Appellant,

v.

THE STATE OF NEVADA, Respondent.

No. 75770

Supreme Court of Nevada

May 15, 2019

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

Gibbons C.J.

This is a pro se appeal from, a district court order denying a postconviction petition for a writ of habeas corpus.[1] Eighth Judicial District Court, Clark County; Stefany Miley, Judge.

Appellant filed the instant petition in 2017, more than 18 years after the remittitur issued on direct appeal. Leslie v. State, 114 Nev. 8, 952 P.2d 966 (1998). Thus, the petition was untimely filed.[2] See NRS 34.726(1). The petition was also successive because appellant had previously filed multiple postconviction petitions for a writ of habeas corpus and it constituted an abuse of the writ as he raised claims new and different from those raised in his prior petitions.[3] See NRS 34.810(1)(b)(2); NRS 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). To demonstrate good cause, appellant "must show that an impediment external to the defense prevented him . . . from complying with the state procedural default rules." Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). Appellant could meet this burden by showing that the "legal basis for a claim was not reasonably available" at the time of the first petition. Id. (internal quotation marks omitted). Further, because the State specifically pleaded laches, appellant was required to overcome the presumption of prejudice to the State. See NRS 34.800(2).

Appellant claims that the district court erred by denying his petition as procedurally barred. He argues that he was entitled to the retroactive application of Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), because recent decisions by the United States Supreme Court in Welch v. United States, 136 S.Ct. 1257 (2016), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), changed the framework under which retroactivity is analyzed and provide good cause to excuse the procedural bars. We disagree.

In both Welch and Montgomery, the Court...

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