SORTER v. STATE (2026)

ORDER OF AFFIRMANCE

Sorter filed his petition eight years after issuance of the remittitur on direct appeal on May 16, 2016. See Sorter v. State, No. 69022-COA, 2016 WL 1615679 (Nev. Ct. App. Apr. 20, 2016) (Order of Affirmance). Thus, Sorter's petition was untimely filed. See NRS 34.726(1). Moreover, Sorter'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(3). Sorter's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(4). “In order to demonstrate good cause, a petitioner must show that an impediment external to the defense prevented him or her from complying with the state procedural default rules.” Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). “An impediment external to the defense may be demonstrated by a showing that the factual or legal basis for a claim was not reasonably available ․” Id. (internal quotation marks omitted).

In his petition, Sorter challenged his sentencing hearing and the evidentiary hearing conducted on his previous postconviction habeas petition because he was unable to understand or he misunderstood what was said due to hearing loss. As good cause, Sorter alleged that he was first shown a copy of Assembly Bill (AB) 49 (2023) (making numerous changes to NRS Chapter 34) and “this Petition” in March of 2024 and that he “recalled having both my hearing aid batteries fail with no replacements available on my way to sentencing court in 2015.” The district court found Sorter did not establish good cause to overcome the procedural bars because he did not identify what amendments to AB 49 might excuse the procedural bars to the petition and failed to explain how the purported failure of his hearing aids at the sentencing hearing justified the delay in filing the petition. Because Sorter failed to allege or demonstrate the factual or legal basis for his petition was not reasonably available, he failed to demonstrate an impediment external to the defense prevented him from complying with the procedural default rules. Therefore, he failed to demonstrate good cause to overcome the procedural bar. Accordingly, we conclude the district court did not err by dismissing his petition,² and we

ORDER the judgment of the district court AFFIRMED.

FOOTNOTES

1.   Sorter v. State, No. 76559-COA, 2019 WL 3854804 (Nev. Ct. App. 2019) (Order Affirming in Part, Reversing in Part and Remanding). Sorter voluntarily withdrew his appeal of the district court's order after remand denying his petition. Sorter v. State, No. 82906, 2021 WL 5177470 (Nev. 2021) (Order Dismissing Appeal).

2.   We further conclude the district court did not abuse its discretion by denying Sorter's motion for the appointment of counsel as his petition was subject to summary dismissal. See NRS 34.745(3); NRS 34.750(1).