Villaverde v. Williams, 103019 NVCA, 77563-COA

Docket Nº:77563-COA
Opinion Judge:Gibbons C.J.
Party Name:SALLY DORIAN VILLAVERDE, Appellant, v. BRIAN WILLIAMS, WARDEN, Respondent.
Attorney:Sally Dorian Villaverde Attorney General/Carson City
Judge Panel:Tao, Bulla J. Hon. Douglas W- Herndon, District Judge
Case Date:October 30, 2019
Court:Court of Appeals of Nevada
 
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SALLY DORIAN VILLAVERDE, Appellant,

v.

BRIAN WILLIAMS, WARDEN, Respondent.

No. 77563-COA

Court of Appeals of Nevada

October 30, 2019

UNPUBLISHED OPINION

Sally Dorian Villaverde Attorney General/Carson City

ORDER OF AFFIRMANCE

Gibbons C.J.

Sally Dorian Villaverde appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on August 26, 2018. Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge.

Villaverde filed his petition more than 12 years after issuance of the remittitur on direct appeal on March 14, 2006. See Villaverde v. State, Docket No. 43443 (Order of Affirmance, February 15, 2006). Thus, Villaverde's petition was untimely filed. See NRS 34.726(1). Moreover, Villaverde's petition was successive because he had previously filed a postconviction petition 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 previous petition.1 See NRS 34.810(1)(b)(2); NRS 34.810(2). Villaverde'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).

Villaverde claims the district court erred by denying his claim that he demonstrated good cause to overcome the procedural bars based on actual innocence. Specifically, Villaverde claimed he was actually innocent because his codefendant, who actually committed the physical act of killing the victim, pleaded guilty to voluntary manslaughter and the other charges against him were dropped. He claimed his codefendant's guilty plea was new evidence, not presented at trial, that showed that he could not have committed first-degree murder with the use of a deadly weapon, robbery with the use of a deadly weapon, and burglary.

"A habeas petitioner may overcome these [procedural] bars and secure review of the merits of defaulted claims by showing that the failure to consider the petition on its merits would amount to a fundamental miscarriage of justice." Berry v. State, 131 Nev. 957, 967, 363 P.3d 1148, 1154 (2015). A colorable showing of actual innocence may...

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