MILTON DAVID PLUMMER v. TIM GARRETT WARDEN (2024)

ORDER OF AFFIRMANCE

Milton David Plummer appeals from a district court order denying a May 5, 2023, postconviction petition for a writ of habeas corpus challenging the computation of time served. Eleventh Judicial District Court, Pershing County; Jim C. Shirley, Judge.

Plummer argues the district court erred in concluding that his petition was procedurally barred pursuant to NRS 34.810. In support, he relies on Phelps v. Dir., Nev. Dep't of Prisons, which states that the respondent must affirmatively raise such procedural bars before a district court can dismiss on those grounds. 104 Nev. 656, 659, 764 P.2d 1303, 1305-06 (1988). However, the Nevada Supreme Court recognized that the following year, the Legislature abrogated this portion of Phelps and now “expressly provides that the petitioner has the burden of pleading and proving specific facts that demonstrate both good cause for failing to present a claim or for presenting a claim again and actual prejudice.” State v. Haberstroh, 119 Nev. 173, 181, 69 P.3d 676, 681 (2003) (internal quotation marks omitted); see NRS 34.810(3).¹ Accordingly, we conclude Plummer is not entitled to relief on this argument, and we

ORDER the judgment of the district court AFFIRMED.²

Gibbons, C.J.

Bulla, J.

Westbrook, J.

FOOTNOTES

1.   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).

2.   To the extent Plummer seeks to overturn the Nevada Supreme Court's holding that application of the procedural bars is mandatory, see State v. Eighth Jud. Dist. Ct. (Riker), 121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005), “this court cannot overrule Nevada Supreme Court precedent,” Eivazi v. Eivazi, 139 Nev., Adv. Op. 44, 537 P.3d 476, 487 n.7 (Ct. App. 2023).