IN THE SUPREME COURT OF THE STATE OF NEVADA
ARTHUR BELARMINO LOPEZ, No. 80570
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
JUL 0 9 2021
EUZABETH A. BROWN
CLERK - B PREME COURT
BY
DEPUTY CLERK
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; Douglas W. Herndon, Judge.
Appellant's petition was untimely as he filed it two years after
entry of the judgment of conviction. See NRS 34.726(1) (requiring a petition
to be filed "within 1 year after entry of the judgment of convictioe or an
appellate court's remittitur if the defendant appeals from the judgment of
conviction). Appellant's petition was procedurally barred absent a
demonstration of cause for the delay and prejudice, see id., or a showing that
the procedural bars should be excused to prevent a fundamental
"Having considered appellant's pro se brief, 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).
miscarriage of justice, 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 1094, 1097 n.12 (2018).
In an attempt to demonstrate good cause for the delay,
appellant asserted that he could not file a timely petition because he did not
have postconviction counsel, did not understand the legal system, and did
not have adequate access to a law library. He asserts as cause and prejudice
that his counsel was ineffective during the proceedings resulting in his
guilty plea and at sentencing. Based upon our review of the record on
appeal, we conclude appellant's allegations of good cause lack merit. As
appellant was not entitled to appointed postconviction counsel, the lack of
such counsel was not good cause. Brown v. McDaniel, 130 Nev. 565, 569,
331 P.3d 867, 870 (2014).2 His assertions that he only had limited
assistance from inmate law clerks and access to the prison law library do
not provide good cause. See Phelps v. Dir., Nev. Dep't. of Prisons,
104 Nev.
656, 660,
764 P.2d 1303, 1306 (1988) (holding that petitioner's reliance on
assistance of inmate law clerk unschooled in the law did not constitute good
cause for filing a successive postconviction petition), superceded by statute
on other grounds as stated in State v. Haberstroh,
119 Nev. 173, 180-81,
69
P.3d 676, 681 (2008); see also Lewis v. Casey,
518 U.S. 343, 355-56 (1996)
2To the extent that appellant argues that his time for filing should be
equitably tolled because he did not have postconviction counsel, the
procedural bars are mandatory, State v. Eighth Judicial Dist. Court (Riker),
121 Nev. 225, 231,
112 P.3d 1070, 1074 (2005), and we have rejected
equitable tolling, Brown, 130 Nev. at 576, 331 P.3d at 874.
2
([A]n inmate cannot establish relevant actual injury simply by establishing
that his prison's law library or legal assistance program is subpar in some
theoretical sense."). And finally, the alleged ineffective assistance of trial
counsel is not good cause because that claim is itself procedurally barred.
See Hathaway v. State, 119 Nev. 248, 252,
71 P.3d 503, 506 (2003) (stating
that an ineffective-assistance claim inay excuse a procedural default only if
that claim is not itself procedurally defaulted).
Appellant also asserted that, as his claims of trial error and
ineffective assistance of counsel were substantial, the failure to consider his
petition would result in a fundamental miscarriage of justice. Appellant
failed to demonstrate any fundamental miscarriage of justice to overcome
these procedural bars. See Mazzan v. Warden, 112 Nev. 838, 842,
921 P.2d
920, 922 (1996) (stating that review of procedurally barred claims for relief
would be required if the petitioner showed "that failure to consider them
would result in a fundamental miscarriage of justice"). Beyond this
assertion, appellant made no further argument below, nor did he point to
any newly discovered evidence to support his claim. See Schlup v. Delo,
513
U.S. 298, 324 (1995) (requiring petition to allege "new reliable
evidence . . . that was not presented at triar to support allegation of
fundamental miscarriage of justice); Hargrove v. State,
100 Nev. 498, 502-
03,
686 P.2d 222, 225 (1984) (requiring petitioner to support claims with
specific facts that are not belied by the record). To the extent appellant
makes new allegations in his appellate brief related to his claim of actual
innocence, we decline to consider them. See McNelton v. State,
115 Nev.
396, 416,
990 P.2d 1263, 1276 (1999) (declining to consider on appeal claims
and arguments not raised in the district court).
3
For the reasons stated above, we conclude that the district court
did not err in denying appellant's petition. Accordingly, we
ORDER the judgment of the district court AFFIRMED.3
, C.J.
Hardesty
J.
Parraguirre
Sr.J.
Gibbons
cc: Chief Judge, Eighth Judicial District Court
Department 3, Eighth Judicial District Court
Arthur Belarmino Lopez
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
SUPREME COURT
OF
NEVADA
4
(0) I947A algE*.
