474 P3D 332 - Beraldo (Frank) Vs. State

IN THE SUPREME COURT OF THE STATE OF NEVADA

FRANK J. BERALDO, No. 80722
Appellant,
vs. FILED
THE STATE OF NEVADA,
OCT 1 5 2020
Respondent.
ELIZABEMI A. BROWN
CLERK OF SUPREMECOURT
ORDER OF AFFIRMANCE BY S
DEPUWCat

This is a pro se appeal from a district court order denying a
postconviction petition for a writ of habeas corpus.1 Second Judicial District
Court, Washoe County; Elliott A. Sattler, Judge.
A jury convicted appellant Frank J. Beraldo of sexual assault,
battery with intent to commit sexual assault, and battery causing
substantial bodily harm. This court affirmed the judgment of conviction.
Beraldo v. State, Docket No. 29466 (Order Dismissing Appeal, May 28,
1999). Beraldo petitioned for postconviction habeas relief, and the district
court denied the petition after conducting an evidentiary hearing. This
court affirmed the district court's order. Beraldo v. State, Docket No. 38461
(Order of Affirmance, November 5, 2002).
Beraldo's instant postconviction habeas petition was untimely
because it was filed more than 19 years after remittitur issued on direct
appeal on September 8, 1999. See NRS 34.726(1). Beraldo's petition was
also successive because he had previously filed a postconviction habeas
petition and he asserted claims that had been raised in the previous

'Having considered the pro se brief filed by appellant, we conclude
that a response is not necessary. NRAP 46A(c). This appeal therefore has
been submitted for decision based on the pro se brief and the record. See
NRAP 34(f)(3).

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petition. See NRS 34.810(2). Thus, Beraldo's petition was procedurally
barred absent a demonstration of good cause and actual prejudice. See NRS
34.726(1); NRS 34.810(3).
Beraldo argues that the federal Antiterrorism and Effective
Death Penalty Act (AEDPA) provides good cause. We disagree. Good cause
requires showing "an impediment external to the defense prevented
{Beraldo] from complying with the state procedural default rules."
Hathaway v. State,

119 Nev. 248, 252

71 P.3d 503, 506

 (2003). Federal
habeas procedural rules do not excuse noncompliance with Nevada's habeas
statutes. See Brown v. McDaniel,

130 Nev. 565

, 575-76,

331 P.3d 867

, 874-
75 (2014) (observing that Nevada's habeas process is independent from its
federal counterpart and declining to apply a federal rule to an untimely and
successive state petition). Insofar as Beraldo argues that his other claims
provide good cause, he has raised those claims on direct appeal and in his
previous postconviction habeas petition, and thus those claims were
reasonably available to be raised in a timely petition. See Hathaway, 119
Nev at 252-53,

71 P.3d at 506

. As Beraldo did not show good cause, we
conclude that the district court correctly applied the mandatory procedural
bars. See State v. Eighth Judicial Dist. Court (Riker),

121 Nev. 225, 231

112 P.3d 1070

, 1074 (2005).
            Insofar as Beraldo argued below that failing to consider his
claims on the merits would amount to a fundamental miscarriage of justice
because he was actually innocent, Beraldo had to show that "it is more likely
than not that no reasonable juror would have convicted him in the light
of . . . new evidence." Schlup v. Delo,

513 U.S. 298, 327

 (1995); see also
Pellegrini v. State,

117 Nev. 860, 887

34 P.3d 519, 537

 (2001). Beraldo did




                                     2
                   not identify any new evidence. The district court therefore did not err in
                   denying Beraldo's claim of a fundamental miscarriage of justice.
                               Having considered Beraldo's contentions and concluded that
                   they do not warrant relief, we
                               ORDER the judgment of the district court AFFIRMED.




                                                                        Aloilsat..0      , J.
                                                               Stiglich


                                                                   1/4.1,16,               J
                                                               Silver




                   cc:   Hon. Elliott A. Sattler, District Judge
                         Frank J. Beraldo
                         Attorney General/Carson City
                         Washoe County District Attorney
                         Washoe District Court Clerk




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