Opinion
No. 73741
08-14-2018
KEVIN ANTOINE BANKS, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Kevin Antoine Banks appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on March 7, 2017. Eighth Judicial District Court, Clark County; Douglas Smith, Judge.
This appeal has been submitted for decision without oral argument. NRAP 34(f)(3).
Banks filed his petition nearly three years after issuance of the remittitur on direct appeal on March 11, 2014. See Banks v. State, Docket No. 62533 (Order of Affirmance, February 13, 2014). Banks' petition was therefore untimely filed. See NRS 34.726(1). Banks' petition was also successive insofar as his challenge to the voir dire procedure could have been raised in his direct appeal, see NRS 34.810(1)(b)(2), and it was abusive insofar as he raised a new claim not raised in his previous petition, see NRS 34.810(2). Banks' petition was therefore 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).
See Banks v. State, Docket No. 68237 (Order of Affirmance, November 13, 2015).
Banks' underlying substantive claim challenged the district court's failure to swear in prospective jurors prior to voir dire. Banks claimed the Nevada Supreme Court opinion in Barral v. State provided good cause to reach the merits of this claim because the court held, as a matter of first impression, that such a failure is structural error. 131 Nev. 520, 524, 525, 353 P.3d 1197, 1199, 1200 (2015). Banks failed to demonstrate good cause because he raised his claim nearly two years after the decision in Barral, which was an unreasonable delay. See Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003) (holding good-cause claims cannot themselves be procedurally defaulted). Further, Banks did not attempt to demonstrate prejudice to overcome the procedural bar. See Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1910 (2017) (indicating structural errors warrant automatic reversal only when the issue was preserved at trial and raised on direct appeal).
Banks also claimed he was actually innocent. Banks' bare claim failed to show "it is more likely than not that no reasonable juror would have convicted him in light of . . . new evidence." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). We therefore conclude the district court did not err by denying Banks' petition as procedurally barred, and we
ORDER the judgment of the district court AFFIRMED.
We conclude the district court did not abuse its discretion by declining to appoint postconviction counsel. See NRS 34.750(1); Renteria-Novoa v. State, 133 Nev. ___, ___, 391 P.3d 760, 760-61 (2017). --------
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. Douglas Smith, District Judge
Kevin Antoine Banks
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk