Opinion
No. 69329
04-14-2017
ARTIS LONDELL MOORE, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying appellant's postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge. We conclude that the district court did not err by denying appellant's petition as procedurally barred, and we therefore affirm.
Appellant filed his postconviction petition on October 6, 2015, more than 15 years after remittitur issued from his direct appeal on August 7, 2000. Moore v. State, Docket No. 34052 (Order Dismissing Appeal, July 10, 2000). Thus, the petition was untimely filed. See NRS 34.726(1). The petition also constituted an abuse of the writ because appellant had previously sought postconviction relief and it raised a claim that was new and different from those previously raised. NRS 34.810(1)(b)(2); NRS 34.810(2). Accordingly, the petition was procedurally barred absent a demonstration of good cause and prejudice. See NRS 34.726(1); NRS 34.810(1)(b), (3).
Moore v. State, Docket No. 37941 (Order of Affirmance, December 1, 2006); Moore v. State, Docket No. 54521 (Order of Affirmance, May 7, 2010); Moore v. State, Docket No. 67296 (Order of Affirmance, May 20, 2015).
Appellant contends that the district court erred by denying his petition without considering his good cause argument regarding Riley v. McDaniel, 786 F.3d 719, 721 (9th Cir. 2015). We disagree. Although appellant cited Riley in his petition, he did not discuss Riley's holding or apply it to his case and therefore the district court did not err by failing to mention it. As a separate and independent ground for denying relief, we also conclude that the district court did not err by denying appellant's petition because the challenge to the Kazalyn instruction could have been raised sooner based on our decision in Nika v. State, 124 Nev. 1272, 198 P.2d 839 (2008), and Riley does not provide good cause, see Leavitt v. State, 132 Nev., Adv. Op. 83, 386 P.3d 620 (2016). Even assuming that appellant could demonstrate good cause, he failed to establish prejudice because he did not demonstrate that the result of trial would have been different considering that the evidence clearly establishing first-degree murder based on felony murder. See Hogan v. Warden, 109 Nev. 952, 960, 860 P.2d 710, 716 (1993) (explaining that the petitioner in a postconviction proceeding bears the "burden of demonstrating not merely that the errors of trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, in affecting the state proceeding with error of constitutional dimensions" (internal quotation marks omitted)). Accordingly, we
108 Nev. 67, 825 P.2d 578 (1992).
ORDER the judgment of the district court AFFIRMED.
/s/_________, J.
Hardesty
/s/_________, J.
Parraguirre
/s/_________, J.
Stiglich cc: Hon. Michelle Leavitt, District Judge
Artis Londell Moore
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk