Opinion
82000-COA
08-12-2021
MANUEL MELENDEZ, Appellant, v. THE STATE OF NEVADA, Respondent.
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
Manuel Melendez appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on May 27, 2020. Eighth Judicial District Court, Clark County; Tierra Danielle Jones, Judge.
Melendez's petition was untimely because it was filed more than eight years after the remittitur on direct appeal was issued on February 7, 2012, and more than eight years after the amended judgment of conviction was entered on April 25, 2012. See NRS 34, 726(1). Moreover, Melendez's petition was successive because he had previously filed several postconviction petitions for a writ of habeas corpus, and it constituted an abuse of the writ as he raised claims new and different from those raised in his previous petitions. See NRS 34.810(1)(b)(2); NRS 34.810(2). Consequently, Melendez's petition was procedurally barred absent a demonstration of good cause and prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3).
See Melendez v. State, Docket No. 57594 (Order Affirming in Part, Reversing in Part and Remanding, January 12, 2012).
Melendez did not pursue a direct appeal from his amended judgment of conviction.
See Melendez v. State, Docket No. 80472-COA (Order of Affirmance, September 23, 2020); Melendez v. State, Docket No. 65526-COA (Order of Affirmance, July 14, 2015). Melendez also filed a postconviction petition for a writ of habeas corpus in the district court on January 27, 2020, but he did not appeal from the district court order denying that petition,
Melendez appeared to allege he had good cause because his claims regarding double jeopardy and presentence credit cannot be procedurally barred. These underlying claims were always available to be raised. Because Melendez failed to state why he was unable to raise these claims in a timely filed postconviction petition, they did not constitute good cause to excuse the procedural bars. 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.")- Therefore, we conclude the district court did not err by denying Melendez's petition as procedurally barred, and we
ORDER the judgment of the district court AFFIRMED.
Gibbons, Tao, Bull, J.
Hon. Tierra Danielle Jones, District Judge