Opinion
No. 69054
04-20-2016
ROBERT ANTHONY SMITH, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
This is an appeal from an order of the district court denying a postconviction motion to withdraw his guilty plea. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.
This appeal has been submitted for decision without oral argument. NRAP 34(f)(3).
We conclude the district court properly construed appellant Robert Smith's July 1, 2015, motion to withdraw his guilty plea as a postconviction petition for a writ of habeas corpus. See Harris v. State, 130 Nev. ___, ___, 329 P.3d 619, 628 (2014) (holding postconviction motions to withdraw a guilty plea should be construed as postconviction petitions for writs of habeas corpus because a postconviction petition for a writ of habeas corpus is the exclusive remedy to challenge the validity of a guilty plea after sentencing). Smith filed his motion more than 2 years after entry of the judgment of conviction on June 2, 2013. Thus, Smith's motion was untimely filed. See NRS 34.726(1). Moreover, Smith's motion was successive because he had previously filed a postconviction petition 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 petition. See NRS 34.810(1)(b)(2); NRS 34.810(2). Smith's petition was 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).
No direct appeal was taken.
Smith v. State, Docket No. 66812 (Order of Affirmance, March 17, 2015).
On appeal, Smith fails to argue the district court erred by determining his motion was procedurally barred. Instead, he argues the district court erred by failing to hold an evidentiary hearing on his claims regarding his plea and ineffective assistance of counsel. Because Smith fails to demonstrate the district court erred by denying the motion based on the procedural bars, we
We note Smith did not allege good cause and prejudice below to overcome the procedural bars. Instead he erroneously claimed the procedural bars did not apply to a postconviction motion to withdraw a guilty plea. See Harris, 130 Nev. at ___, 329 P.3d at 628. --------
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver cc: Hon. Valerie Adair, District Judge
Robert Anthony Smith
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk