Miranda-Rivasv.Wickman

COURT OF APPEALS OF THE STATE OF NEVADAJul 9, 2019
No. 76456-COA (Nev. App. Jul. 9, 2019)

No. 76456-COA

07-09-2019

JORGE MIRANDA-RIVAS, Appellant, v. HAROLD WICKMAN, WARDEN, Respondent.


ORDER OF AFFIRMANCE

Jorge Miranda-Rivas appeals from a district court order dismissing a postconviction petition for a writ of habeas corpus filed on November 27, 2017. Second Judicial District Court, Washoe County; David A. Hardy, Judge.

Miranda-Rivas' petition was untimely because it was filed more than three years after the remittitur on direct appeal was issued on November 12, 2014, see NRS 34.726(1), and it was successive because he had previously filed a postconviction petition for a writ of habeas corpus that was decided on the merits, see NRS 34.810(2). Consequently, his petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3).

See Miranda-Rivas v. State, Docket No. 64687 (Order of Affirmance, October 15, 2014).

See Miranda-Rivas v. Warden, Docket No. 69855-COA (Order of Affirmance, July 26, 2016). --------

Miranda-Rivas claims he established good cause and prejudice by showing the State withheld impeachment evidence regarding witnesses Jorge Torres, Kevin Anguiano, and Escar Gonzalez in violation of Brady v. Maryland, 373 U.S. 83 (1963). "Good cause and prejudice [to excuse a procedural bar] parallel the second and third Brady components; in other words, proving that the State withheld the evidence generally establishes cause, and proving that the withheld evidence was material establishes prejudice." State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003). However, Miranda-Rivas failed to demonstrate there was a reasonable probability that the trial result would have been different if this evidence had been disclosed to the jury. See id. at 600, 81 P.3d at 8 (defining material evidence). Consequently, he failed to demonstrate the prejudice necessary to overcome the procedural bars. See id. at 599, 81 P.3d at 8 ("To raise a [Brady] claim in an untimely and/or successive post-conviction habeas petition, the petitioner has the burden of pleading and proving specific facts that demonstrate good cause and prejudice to overcome the procedural bars.").

Miranda-Rivas also claims he established good cause and prejudice by showing the district court erred by denying his request for postconviction counsel during his first postconviction habeas proceeding. However, Miranda-Rivas was not entitled to postconviction counsel and we have previously determined the district court did not err by denying his request for postconviction counsel. See NRS 34.750(1); Brown v. McDaniel, 130 Nev. 565, 569, 331 P.3d 867, 870 (2014); Miranda-Rivas v. Warden Docket No. 69855-COA (Order of Affirmance, July 26, 2016), at 7. Moreover, Miranda-Rivas did not explain how the denial of his previous request for postconviction counsel prevented him from filing the instant petition for more than two years. See Hathaway v. State, 119 Nev. 252-53, 71 P.3d 503, 506 (2003) ("[A]n adequate allegation of good cause would sufficiently explain why a petition was filed beyond the statutory time period."). Consequently, Miranda-Rivas failed to demonstrate good cause to overcome the procedural bars to his petition. See Bennett, 119 Nev. at 599, 81 P.3d at 8.

We conclude the district court did not err by dismissing Miranda-Rivas' petition as procedurally barred, and we

ORDER the judgment of the district court AFFIRMED.

/s/_________, C.J.


Gibbons

/s/_________, J.


Tao

/s/_________, J.


Bulla cc: Hon. David A. Hardy, District Judge


Federal Public Defender/Las Vegas


Attorney General/Carson City


Washoe County District Attorney


Washoe District Court Clerk