JUSTIN JAMES EDMISTEN v. WILLIAM GITTERE WARDEN AND THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Justin James Edmisten appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on December 18, 2024, and a supplement. Eighth Judicial District Court, Clark County; Kathleen E. Delaney, Judge.

Edmisten filed his petition more than four years after issuance of the remittitur on direct appeal on October 13, 2020. Edmiston v. State, No. 76814, 2020 WL 5633674 (Nev. Sep. 18, 2020) (Order of Affirmance). Thus, Edmisten's petition was untimely filed. See NRS 34.726(1). Moreover, Edmisten's petition was successive because he had 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 he raised claims new and different from those raised in his previous petition.¹ See NRS 34.810(1)(b)(2); NRS 34.810(3). Edmisten'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(4), or a showing he is actually innocent such 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). Good cause “may be demonstrated by a showing that the factual or legal basis for a claim was not reasonably available” to be raised in a timely petition. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003) (internal quotation marks omitted). A petitioner must allege specific facts that, if true and not belied by the record, would entitle him to relief. Berry, 131 Nev. at 967, 363 P.3d at 1154-55.

In his pleadings below, Edmisten claimed the State withheld exculpatory evidence in violation or Brady v. Maryland, 373 U.S. 83 (1963). Edmisten claimed he was at a casino at the time of the crimes and the State withheld surveillance video footage from the casino. Even assuming Edmisten intended this substantive Brady claim to serve as good cause to overcome the procedural bars, see State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003), Edmisten failed to demonstrate he raised his Brady claim within a reasonable time of its discovery. Edmisten did not allege when he had obtained the surveillance footage to demonstrate it was within the State's possession and was withheld from him; other parts of his pleadings below appear to show that Edmisten attempted to use his pleadings as a means of obtaining this evidence to the extent it existed. Further, Edmisten is presumed to know where he was at the time of the crimes, and he failed to allege specific facts demonstrating that any impediment external to the defense prevented him from raising this claim in his first petition. See Lisle v. State, 131 Nev. 356, 360, 351 P.3d 725, 729 (2015) (requiring petitioner's allegations of good cause to contain specific facts regarding the timing of the discovery of new evidence relative to filing the procedurally barred claim); see also Hathaway, 119 Nev. at 252-53, 71 P.3d at 506 (holding that procedurally barred claims cannot constitute good cause).

Finally, this court has previously concluded that “strong evidence” of Edmisten's guilt was presented at trial “as three victims identified him as the perpetrator of the offenses and surveillance recordings depicted him committing the crimes.” Edmisten, No. 83145-COA, 2021 WL 5861515, at *1. Thus, Edmisten failed to demonstrate the purportedly withheld evidence was material. See Bennett, 119 Nev. at 599-600, 81 P.3d at 8 (discussing the components of a Brady violation and how the materiality component requires a showing that a reasonable probability/possibility exists of a different outcome had there been disclosure). Therefore, we conclude Edmisten is not entitled to relief based on this claim.

Edmisten also argued he could overcome the procedural bars because of newly discovered evidence of his actual innocence. Besides his allegation regarding the surveillance video evidence discussed above, Edmisten did not identify any new evidence. Instead, he alleged he could demonstrate his innocence because: he was misidentified; trial counsel failed to investigate his alibi; he was innocent of the Circle-K robbery because no money was taken; he was innocent of the attempted robbery with the use of a deadly weapon count because the State failed to prove he “actively employed” the firearm; there was insufficient evidence of his “taking by force” to support a robbery conviction; and there existed “no DNA evidence” and latent print experts provided inaccurate fingerprint analysis “on the jacket.” Edmisten's claims were bare and largely disputed the sufficiency of the evidence presented at trial. Thus, Edmisten did not demonstrate actual innocence because he failed to show that “it is more likely than not that no reasonable juror would have convicted him in light of․ new evidence.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001), abrogated on other grounds by Rippo v. State, 134 Nev. 411, 423 n.12, 423 P.3d 1084, 1097 n.12 (2018). We therefore conclude the district court did not err by denying Edmisten's petition. Accordingly, we

ORDER the judgment of the district court AFFIRMED.²

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   See Edmisten v. State, No. 83145-COA, 2021 WL 5861515 (Nev. Ct. App. Dec. 9, 2021) (Order of Affirmance).

2.   To the extent Edmisten raised other arguments not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.