Zacarias-Lopez v. State, 110519 NVCA, 78107-COA

Docket Nº:78107-COA
Party Name:ELDER ZACARIAS-LOPEZ, Appellant, v. THE STATE OF NEVADA, Respondent.
Judge Panel:Gibbons, C.J. Tao, J., Bulla, J. Hon. Tierra Danielle Jones, District Judge.
Case Date:November 05, 2019
Court:Court of Appeals of Nevada
 
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ELDER ZACARIAS-LOPEZ, Appellant,

v.

THE STATE OF NEVADA, Respondent.

No. 78107-COA

Court of Appeals of Nevada

November 5, 2019

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

Gibbons, C.J.

Elder Zacarias-Lopez appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on August 24, 2018. Eighth Judicial District Court, Clark County; Tierra Danielle Jones, Judge.

Zacarias-Lopez filed his petition more than 14 years after issuance of the remittitur on direct appeal on June 8, 2004, see Zacarias-Lopez v. State, Docket No. 40116 (May 11, 2004), and more than five years after issuance of the remittitur on direct appeal from his amended judgment of conviction on June 7, 2013, see Zacarias-Lopez v. State, Docket No. 60725 (Order of Affirmance, May 13, 2013). Thus, Zacarias-Lopez' petition was untimely filed. See NRS 34.726(1). Moreover, Zacarias-Lopez' petition was successive because he had previously filed four 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 previous petitions.1 See NRS 34.810(1)(b)(2); NRS 34.810(2). Zacarias-Lopez' 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).

In his petition, Zacarias-Lopez claimed he could overcome the procedural bars because he was actually innocent. He claimed he was actually innocent because he was high and drunk at the time of the murder and he had an IQ of 59. He claimed that had the jury been provided this information, they would have concluded he could not have formed the intent to commit the murder.2 Further, he claimed he was actually innocent because the State used an analogy when discussing what constitutes first-degree murder.

"A habeas petitioner may overcome [the 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, 966, 363 P.3d 1148, 1154 (2015). A colorable showing...

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