JAMES HOWARD HAYES v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

James Howard Hayes appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on November 15, 2022, and supplemental pleadings.¹ Eighth Judicial District Court, Clark County; Monica Trujillo, Judge.

Hayes filed his petition more than two years after issuance of the remittitur on direct appeal on February 10, 2020. See Hayes v. State, No. 78590-COA, 2020 WL 230182 (Nev. Ct. App. Jan. 14, 2020) (Order of Affirmance). Thus, Hayes’ petition was untimely filed. See NRS 34.726(1). Moreover, Hayes’ petition was successive because he previously filed a postconviction petition for a writ of habeas corpus that was decided on the merits, and it constituted an abuse of the writ as it raised a claim new and different from those raised in his previous petitions.² See NRS 34.810(1)(b)(2); NRS 34.810(3).³ Hayes’ 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(4), or a showing that “the failure to consider the petition on its merits would amount to a fundamental miscarriage of justice,” Berry v. State, 131 Nev. 957, 966, 363 P.3d 1148, 1154 (2015).

In his pleadings below, Hayes claimed he was entitled to additional presentence credit. On appeal, Hayes argues the district court erred by denying his petition as procedurally barred because a fundamental miscarriage would occur if his request for additional presentence credit was not granted. Hayes contends that the failure to consider his claim on the merits would result in a fundamental miscarriage of justice because he demonstrated “beyond any doubt” that he has not been credited with the proper amount of time served. He also asserts that he previously attempted to raise this claim in a motion to modify or correct an illegal sentence but that his motion was denied without the merits of his claim being addressed.

“Where a petitioner cannot demonstrate cause and prejudice, we have recognized an exception to these bars against untimely and successive petitions: the petitioner must show that the failure to consider the petition on its merits would result in a fundamental miscarriage of justice, meaning the imprisonment of a person who is actually innocent of the offense for which he was convicted or the execution of a person who is actually innocent of the death penalty.” Lisle v. State, 131 Nev. 356, 358, 351 P.3d 725, 727 (2015); see also Schlup v. Delo, 513 U.S. 298, 316 (1995) (“Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.”). Because Hayes’ claim regarding a fundamental miscarriage of justice does not implicate his actual innocence, we conclude the district court did not err by denying Hayes’ petition as procedurally barred.⁴ Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   Hayes’ pleading was titled “Rule 59(e) ‘Motion to Alter or Amend Judgment.’ ” The district court properly construed the pleading as a postconviction petition for a writ of habeas corpus. See Griffin v. State, 122 Nev. 737, 739, 137 P.3d 1165, 1166 (2006) (providing that a claim for presentence credit is a challenge to the validity of a judgment of conviction and sentence); see also NRS 34.724(2)(b) (stating that a postconviction petition for a writ of habeas corpus is the exclusive remedy with which to challenge the validity of a judgment of conviction or sentence).

2.   See Hayes v. State, No. 84169-COA, 2022 WL 1714528 (Nev. Ct. App. May 26, 2022) (Order of Affirmance); Hayes v. State, No. 82734-COA, 2021 WL 4261335 (Nev. Ct. App. Sept. 17, 2021) (Order of Affirmance).

3.   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).

4.   To the extent Hayes argues that application of the law of the case doctrine to his claim for presentence credit would result in manifest injustice, we need not address this claim because Hayes failed to overcome the procedural bars for the reasons discussed above.