HARSH v. STATE (2021)

ORDER OF AFFIRMANCE

Harsh filed his August 2020 petition more than seven years after issuance of the remittitur on direct appeal on April 10, 2013. See Harsh v. State, Docket No. 59417 (Order of Affirmance, March 14, 2013). Thus, Harsh's petition was untimely filed. See NRS 34.726(1). Moreover, Harsh'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.² See NRS 34.810(1)(b)(2); NRS 34.810(2). Harsh'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(3).

Harsh claimed he had good cause because a change in the law, which passed in 2020 and applies retroactively to Harsh, meant he no longer qualified for large habitual criminal treatment. Harsh filed his petition within a reasonable time of a change in the law. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003) (holding that a change in the law may constitute good cause). However, he failed to demonstrate the Legislature intended the law to apply retroactively. See State v. Second Judicial Dist. Court (Pullin), 124 Nev. 564, 567, 188 P.3d 1079, 1081 (2008) (holding that courts must apply the law in effect at the time a defendant commits a crime “unless the Legislature clearly expresses its intent to apply a law retroactively”). Therefore, we conclude the district court did not err by denying the petition as procedurally barred, and we

ORDER the judgment of the district court AFFIRMED.

FOOTNOTES

2.   Harsh v. State, Docket No. 71043-COA (Order of Affirmance, June 14, 2017).