ROBLEDO NORIEGA v. STATE (2021)

ORDER OF AFFIRMANCE

Robledo-Noriega filed his petition on July 24, 2020, more than ten years after entry of the judgment of conviction on September 22, 2009.² Thus, Robledo-Noriega's petition was untimely filed. See NRS 34.726(1). Moreover, Robledo-Noriega's petition constituted an abuse of the writ as he raised claims new and different from those raised in his previous petition.³ See NRS 34.810(2). Robledo-Noriega's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3).

First, Robledo-Noriega appeared to argue that the procedural bars did not apply to his petition because he is permitted to request additional presentence credits at any time. However, Robledo-Noriega's request for additional presentence credits was reasonably available to be raised in a timely-filed petition, and he did not attempt to explain his delay in raising such a claim. See Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003). Therefore, Robledo-Noriega was not entitled to relief based on this claim.

Second, Robledo-Noriega appeared to argue he had good cause because the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Robledo-Noriega contended the victim may have contracted a sexually transmitted disease from her mother during birth and the State should have conducted an investigation into that issue. Robledo-Noriega also appeared to assert the State withheld an interview conducted with the victim where she stated that he did not improperly touch her. A valid Brady claim can constitute good cause and prejudice sufficient to excuse the procedural bars. State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003) (“[P]roving that the State withheld the evidence generally establishes cause, and proving that the withheld evidence was material establishes prejudice.”).

In his petition, Robledo-Noriega did not allege that the State withheld exculpatory evidence regarding a sexually transmitted disease but rather alleged the State improperly failed to conduct a thorough investigation concerning that issue. In addition, the record demonstrated that the State did not withhold information from an interview with the victim. Robledo-Noriega's counsel stated during the preliminary hearing that he had a 30-page transcript of that interview, and counsel presented information concerning the interview to the justice court during that hearing. Robledo-Noriega thus did not meet his burden to plead and prove specific facts to establish good cause. See id. Accordingly, we conclude the district court did not err by dismissing the petition as procedurally barred, and we

ORDER the judgment of the district court AFFIRMED.

FOOTNOTES

2.   Robledo-Noriega did not pursue a direct appeal.

3.   Robledo-Noriega v. State, Docket No. 76661-COA (Order of Affirmance, May 21, 2019).