IN THE SUPREME COURT OF THE STATE OF NEVADA
MARCO ANTONIO GUZMAN, No. 79519
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. NOV 0 3 2020
ELIZABE11-1 A. BROWN
CL ERK OF SUPREME COURT
ORDER OF AFFIRMANCE BY:_st.
DEPUTY CLE
This is an appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; William D. Kephart, Judge.
Appellant Marco Guzman contends that McCoy v. Louisiana,
138 S. Ct. 1500 (2018), provides the good cause and prejudice necessary to
overcome the procedural bars to his current habeas petition. See NRS
34.810 (prohibiting the filing of more than one petition absent a showing of
"cause and "actual prejudice). But when addressing on appeal his first
habeas petition, we concluded that his counsel did not concede that Guzman
was guilty of second-degree murder. Thus, the law-of-the-case doctrine bars
Guzman's arguments about McCoy's legal effect, and we need not consider
them here. See McNelton v. State, 115 Nev. 396, 415,
990 P.2d 1263, 1275
(1999) (recognizing that the law-of-the-case doctrine applies in the context
of a habeas petition); Hall v. State, 91 Nev. 314, 315,
535 P.2d 797, 798
(1975) CThe law of a first appeal is the law of the case on all subsequent
appeals in which the facts are substantially the same." (quoting Walker v.
State, 85 Nev. 337, 343,
455 P.2d 34, 38 (1969))); see also NRS 34.810(2)
(requiring dismissal of second or successive petition if it "fails to allege new
or different grounds for relief and that the prior determination was on the
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merite). Accordingly, the district court correctly determined that Grounds
1 and 5 in Guzman's second petition were procedurally barred.
The law-of-the-case doctrine likewise bars Ground 6 in
Guzman's petition. Although Guzman contends that good cause exists for
producing his doctor's opinion letter in conjunction with his second petition,
that contention is irrelevant in light of our conclusion in the appeal
involving his first petition that introducing additional evidence of his hand
injury was unnecessary. Moreover, even if Guzman's inability to pay for the
letter at the time of his first petition constituted good cause, he has not
demonstrated prejudice because the possibility that calling his treating
physician as a witness might have persuaded the jury that Guzman could
not have aimed the gun with his left hand does not meet the necessary
prejudice standard. Hogan v. Warden, 109 Nev. 952, 960,
860 P.2d 710, 716
(1993) (holding that actual prejudice requires "not merely that the errors of
trial created a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, in affecting the state proceeding with error of
constitutional dimen.sione (emphasis added) (internal quotation marks
omitted)). Accordingly, the district court correctly determined that Ground
6 in Guzman's petition was procedurally barred.
Guzman also contends that he established prejudice with
respect to his claims that his trial counsel failed to communicate a plea offer
to him (Ground 9), that the State committed a Brady violation by failing to
turn over evidence that it gave favorable treatment to a witness (Ground
10), and that Guzman's trial counsel was ineffective for failing to investigate
whether favorable treatment was given. We review these issues de novo.
State v. Huebler, 128 Nev. 192, 197-98,
275 P.3d 91, 95-96 (2012).
2
Irrespective of whether Guzman established prejudice, we
agree with the district court that Guzman failed to establish good cause to
bring those claims in the underlying petition. See Hathaway v. State, 119
Nev. 248, 253,
71 P.3d 503, 506 (2003) ([A] claim or allegation that was
reasonably available to the petitioner during the statutory time period
would not constitute good cause to excuse the delay."). Accordingly, the
district court correctly determined that Grounds 9, 10 and 11 in Guzman's
second petition were procedurally barred and that an evidentiary hearing
was unwarranted.
Finally, we are not persuaded that our opinion in Brown v.
McDaniel, 130 Nev. 565, 569-70,
331 P.3d 867, 870 (2014), should be
overturned. Consequently, the district court correctly determined that
Grounds 2, 3, 4, 7, 8, 9, 10 and 11 failed. The district court therefore did not
err in denying Guzman's petition, and we
ORDER the judgment of the district court AFFIRMED.
J.
-294)tel12-12/6"bral."rw7a.
Parraguirre
J.
Hardesty
40,4
Cadish
J.
cc: Hon. William D. Kephart, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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