Opinion
No. 68559
11-19-2015
MARK ROBERT COLLINS, A/K/A MARTIN ROBERT COLLINS, Appellant, v. THE STATE OF NEVADA, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
This is an appeal from an order of the district court denying a postconviction petition for a writ of habeas corpus and an order denying a postconviction motion to withdraw the guilty plea. Eighth Judicial District Court, Clark County; Susan Johnson, Judge.
This appeal has been submitted for decision without oral argument and we conclude the record is sufficient for our review and briefing is unwarranted. NRAP 34(f)(3), (g).
Appellant Mark Collins filed his postconviction petition for a writ of habeas corpus on January 6, 2015, more than four years after entry of the judgment of conviction on September 2, 2010. Thus, Collins' petition was untimely filed. See NRS 34.726(1). Collins' petition was procedurally barred absent a demonstration of good cause. See NRS 34.726(1).
No direct appeal was taken.
Collins claimed he had good cause to excuse the procedural bar because he was represented by counsel at all times and counsel did not inform him that his convictions violate the Double Jeopardy Clause or that he could have raised this claim at other stages. This claim of ineffective assistance of counsel was reasonably available to be raised in a timely-petition; therefore, he failed to demonstrate an impediment external to the defense prevented him from complying with the procedural bar. See Hathaway v. State, 119 Nev. 248, 253, 71 P.3d 503, 506 (2003) (a claim that is "reasonably available to the petitioner during the statutory time period would not constitute good cause to excuse the delay").
To the extent Collins asserts he had good cause because his counsel did not file a direct appeal, this claim has already been rejected by the Nevada Supreme Court and is therefore barred by the law of the case. See Collins v State, Docket No. 64433 (Order of Affirmance, April 10, 2014); Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975).
Collins also claimed that he was actually innocent because his counsel failed to argue that the indictment and amended indictment were facially invalid because they violate the Double Jeopardy Clause. To prove actual innocence as a gateway to reach procedurally-barred constitutional claims of error, a petitioner must 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)) (emphasis added). Because Collins did not identify any new evidence to support his claim of actual innocence he failed to demonstrate good cause to overcome the procedural bar.
Because Collins failed to demonstrate good cause to overcome the procedural bar, we conclude the district court did not err by denying the petition as procedurally barred.
On June 23, 2015, Collins filed a postconviction motion to withdraw his guilty plea. The district court determined that Collins did not follow the proper procedure for attempting to withdraw his guilty plea and denied the motion. See Harris v. State, 130 Nev. ___, ___, 329 P. 3d 619, 628 (2014) (holding that "a postconviction petition for a writ of habeas corpus provides the exclusive remedy for a challenge to the validity of the guilty plea made after sentencing for persons in custody on the conviction being challenged"). We conclude the district court did not err by denying the motion. Therefore, we
ORDER the judgments of the district court AFFIRMED.
In light of this order, no action will be taken on Collins' motion to withdraw his appeal from the order denying his motion to withdraw the guilty plea. --------
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver
cc: Hon. Susan Johnson, District Judge
Mark Robert Collins
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk