Opinion
No. 72001-COA
01-17-2019
RACHEL PASHMAN, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Rachel Pashman appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.
Pashman filed her petition on May 15, 2016, more than two years after entry of the judgment of conviction on August 30, 2013. Thus, Pashman's petition was untimely filed. See NRS 34.726(1). Moreover, Pashman's petition was successive because she had previously filed a postconviction petition for a writ of habeas corpus, and it constituted an abuse of the writ as she raised claims new and different from those raised in her previous petition. See NRS 34.810(2). Pashman's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.72.6(1); NRS 34.810(3).
Pashman did not pursue a direct appeal.
Pashman filed her first postconviction petition for a writ of habeas corpus on July 9, 2014. On October 23, 2014, the district court entered an order denying the petition, and Pashman did not appeal from the denial of her petition.
Pashman appeared to assert her May 15, 2016, petition should be construed to be a supplement to her previous petition. However, Pashman's first petition had already been denied by the district court before Pashman filed the instant petition. Accordingly, the May 15, 2016, petition was not merely a supplement to the previous petition; rather, it initiated an entirely new postconviction proceeding. Pashman therefore had the burden to demonstrate good cause to overcome the procedural bars, see State v. Haberstroh, 119 Nev. 173, 181, 69 P.3d 676, 681 (2003), but she did not attempt to do so. As Pashman did not overcome the procedural bars, we conclude the district court properly denied the petition.
Next, Pashman argues the district court erred by denying the petition without conducting an evidentiary hearing. To warrant an evidentiary hearing, a petitioner must raise claims that are supported by specific allegations not belied by the record, and if true, would entitle her to relief. Rubio v. State, 124 Nev. 1032, 1046 & n.53, 194 P.3d 1224, 1233-34 & n.53 (2008) (noting a district court need not conduct an evidentiary hearing concerning claims that are procedurally barred when the petitioner cannot overcome the procedural bars). The district court concluded Pashman's claims did not meet that standard and the record before this court reveals the district court's conclusions in this regard were proper. Therefore, the district court properly denied the petition without conducting an evidentiary hearing. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Pashman also argues the district court's order denying the petition failed to address all of her claims and, for that reason, this court lacks jurisdiction to consider this appeal. However, this claim lacks merit as the district court's order denied Pashman's petition in its entirety. See Sandstrom v. Second Judicial Dist. Court, 121 Nev. 657, 659, 119 P.3d 1250, 1252 (2005) (explaining a final order disposes of all issues and leaves nothing for future consideration). To the extent Pashman asserts the district court's order denying the petition fails to contain specific findings as required by NRS 34.830(1), we conclude the district court's order contains findings with sufficient specificity to permit this court to appropriately review its decision on appeal. --------
/s/_________, A.C.J.
Douglas
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon, Valerie Adair, District Judge
Matthew D. Carling
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk