JOHN ELVIN TURNER v. BRIAN WILLIAMS WARDEN HDSP (2024)

ORDER OF AFFIRMANCE

John Elvin Turner appeals from an order of the district court dismissing a postconviction petition for a writ of habeas corpus filed on October 12, 2022. Eighth Judicial District Court, Clark County; Adriana Escobar, Judge.

Turner argues the district court erred by denying his postconviction petition where he challenged a prison disciplinary hearing. In his petition, Turner claimed his due process rights were violated at a prison disciplinary hearing that resulted in loss of privileges and a postdisciplinary reclassification. Turners claims challenging the prison disciplinary proceedings were not cognizable in a petition for a writ of habeas corpus filed in state court because Turner did not lose any credits and the claims challenged the conditions of confinement. See Bowen v. Warden, 100 Nev. 489, 490, 686 P.2d 250, 250 (1984). Therefore, we conclude the district court did not err by dismissing Turner's postconviction petition.

Turner also argues the district court erred by denying his “motion for order clerk to correct clerical error.” The district court did not deny this motion before denying Turner's postconviction petition. Therefore, the denial of this motion is not part of the record on appeal, and we decline to consider it. See NRS 177.015(3) (“The defendant may only appeal from a final judgment or verdict in a criminal case.”); NRS 177.045 (“Upon the appeal, any decision of the court in an intermediate order or proceeding, forming a part of the record, may be reviewed.”). Accordingly, we

ORDER the judgment of the district court AFFIRMED.¹

Gibbons, C.J.

Bulla, J.

Westbrook, J.

IN THE COURT OF APPEALS OF THE STATE OF NEVADA

MARVIN MORAN, Appellant,

vs.

THE STATE OF NEVADA, Respondent.

No. 86087-COA

ORDER OF AFFIRMANCE

Marvin Moran appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on October 6, 2021. Eighth Judicial District Court, Clark County; Carli Lynn Kierny, Judge.

Moran filed his petition more than three years after entry of the remittitur on direct appeal on July 23, 2018. See Moran v. State, No. 67881, 2018 WL 3216887 (Nev. June 25, 2018) (Order Affirming in Part, Reversing in Part, and Remanding). Thus, Moran's petition was untimely filed. See NRS 34.726(1). Moreover, Moran's petition constituted an abuse of the writ to the extent he raised claims new and different from those raised in his previous petition.¹ See NRS 34.810(l)(b)(2); NRS 34.810(3).² Moran's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(l)(b); NRS 34.810(4).

Moran suggested that he had good cause to overcome the procedural bars because he needed to exhaust his claims in state court before a federal court would consider them. Filing a procedurally barred petition for exhaustion purposes does not constitute good cause because Moran's claims were reasonably available to be raised in a timely petition. See Colley v. State, 105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989), abrogated by statute on other grounds as recognized, by State v. Huebler, 128 Nev. 192, 197 n.2, 275 P.3d 91, 95 n.2 (2012). Therefore, Moran failed to demonstrate that exhaustion constituted good cause, and we conclude the district court did not err by denying the petition as procedurally barred. Accordingly, we ORDER the judgment of the district court AFFIRMED.

Gibbons, C.J.

Bulla, J.

Westbrook, J.

cc: Hon. Carli Lynn Kierny, District Judge

Marvin Moran

Attorney General/Carson City

Clark County District Attorney

Eighth District Court Clerk

FOOTNOTES

1.   We have reviewed all documents Turner has filed in this matter, and we conclude no relief based upon those submissions is warranted. To the extent Turner attempts to present claims or facts in those submissions which were not previously presented in the proceedings below, we decline to consider them in the first instance. See McNelton v. State, 115 Nev. 396, 415-16, 990 P.2d 1263, 1275-76 (1999).

1.   See Moran v. State, No. 80328-COA, 2020 WL 6336062 (Nev. Ct. App. Oct. 28, 2020) (Order of Affirmance).

2.   The subsections within NRS 34.810 were recently renumbered. We note the substance of the subsections cited herein was not altered. See A.B. 49, 82d Leg. (Nev. 2023).