IN THE SUPREME COURT OF THE STATE OF NEVADA
JOSE A. GALLIMORT, No. 80191
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
NOV 1 3 2020
ELIZAB BROWN
CLERK REME coURT
BY
lIEF DEPUIY CLERK
ORDER OF AFFIRMANCE
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; Eric Johnson, Judge. Appellant Jose A. Gallimort
argues that the district court erred in denying his petition as procedurally
barred. We affirm.
Gallimort's postconviction habeas petition was untimely
because it was filed 18 years after remittitur issued on direct appeal. See
NRS 34.726(1); Gallirnort v. State, 116 Nev. 315,
997 P.2d 796 (2000).
Gallimort's petition was also successive because he had previously filed
several postconviction habeas petitions. See NRS 34.810(2); Gallimort v.
State, Docket No. 72826-COA (Order of Affirmance, October 12, 2017);
Gallimort v. State, Docket No. 61815 (Order of Affirmance, June 12, 2013);
Gallitriort v. State, Docket No. 49438 (Order of Affirmance, October 11,
2007); Gallimort v. State, Docket Nos. 33289, 36826 (Order of Affirmance,
August 7, 2001). Thus, Gallimort's petition was procedurally barred absent
a demonstration of good cause and actual prejudice. See NRS 34.726(1);
NRS 34.810(3). Good cause requires Gallimort show that the basis for a
claim was not reasonably available when he filed his first, timely petition
and that he filed the instant petition within a reasonable time of discovering
the factual or legal basis for the claim. See Hathaway v. State,
119 Nev.
248, 252-53,
71 P.3d 503, 506 (2003). Further, as the State specifically
ZQ 611.51r7
pleaded laches, Gallimort had to overcome the presumption of prejudice to
the State. See NRS 34.800(2).
Gallimort argues that he has good cause to excuse the
procedural bars because the district court failed to appoint counsel to assist
with his first postconviction petition. The appointment of counsel in
postconviction proceedings is discretionary in a noncapital case, see NRS
34.750(1), and the failure to appoint postconviction counsel in the first
postconviction proceeding does not provide good cause. See Brown v.
McDaniel, 130 Nev. 565, 571,
331 P.3d 867, 871-72 (2014). Further,
Gallimort's lack of legal knowledge and education do not provide good cause
to excuse the procedural bars. See Phelps v. Dir., Nev. Dep't. of Prisons,
104
Nev. 656, 660,
764 P.2d 1303, 1306 (1988) (holding that a petitioner's
mental handicap and poor legal assistance from inmate law clerks did not
establish good cause), superseded by statute on other grounds as stated in
State v. Haberstroh,
119 Nev. 173, 180-81,
69 P.3d 676, 681 (2003).
Therefore, we conclude that Gallimort has not shown good cause to excuse
the procedural bars.
Gallimort next argues that he is actually innocent. Actual
innocence requires Gallimort show that "it is more likely than not that no
reasonable juror would have convicted him in the light of . . . the 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), abrogated on other
grounds by Rippo v. State,
134 Nev. 411, 423 n.12,
423 P.3d 1084, 1097-98
n.12 (2018), and that he is factually innocent, see Bousley v. United States,
523 U.S. 614, 623 (1998). To the extent that Gallimort disputes the
sufficiency of the evidence presented at trial, he does not show actual
innocence. Cf.
id. ("[A]ctual innocence means factual innocence, not mere
legal insufficiency." (internal quotation marks omitted)); Brown, 130 Nev.
2
at 576, 331 P.3d at 875 (distinguishing actual innocence and insufficient
evidence claims). Moreover, because Gallimort previously raised the same
alibi claim that the Almeida affidavit purportedly supports in the context of
ineffective-assistance-of-counsel claims that this court has rejected, the
doctrine of the law of the case prevents further litigation of this claim, and
Gallimort has not demonstrated that the doctrine should not apply. See
Hsu v. Cty. of Clark,
123 Nev. 625, 630-31,
173 P.3d 724, 729 (2007)
(recognizing circumstances where the doctrine of the law of the case may
not apply); Hall v. State,
91 Nev. 314,
535 P.2d 797 (1975) (setting forth the
doctrine of the law of the case). Finally, Gallimort has failed to demonstrate
a fundamental miscarriage of justice to overcome the presumption of
prejudice to the State based on laches. See Little v. Warden,
117 Nev. 845,
853,
34 P.3d 540, 545 (2001). The district court therefore did not err in
denying Gallimort's actual innocence claim, and 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).
Having considered Gallimort's contentions and concluded that
they do not warrant relief, we
ORDER the judgment of the district court AFFIRMED.
p.......9..,,...„..,,
Parraguirre
.-\
fre2,4-1 , J. J.
Hardesty Cadish
3
cc: Hon. Eric Johnson, District Judge
Gregory & Waldo, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
4
