ANDERSON v. STATE (2022)

ORDER OF AFFIRMANCE

Anderson argues the district court erred by denying his July 9, 2020, petition. Anderson filed his petition more than four years after issuance of the remittitur on direct appeal on December 16, 2015. See Anderson v. State, No. 65290-COA, 2015 WL 7431568 (Nev. Ct. App. Nov. 19, 2015) (Order of Affirmance). Thus, Anderson's petition was untimely filed. See NRS 34.726(1). Moreover, Anderson'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 a claim new and different from those raised in his previous petition.¹ See NRS 34.810(2). Anderson's petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3).

Anderson claimed the COVID-19 pandemic constituted good cause to challenge his confinement. The district court concluded Anderson demonstrated good cause to raise his claims, and the State does not challenge this conclusion on appeal. The district court nevertheless denied Anderson's petition because he could not demonstrate actual prejudice.

Anderson claimed that he suffered actual prejudice because his continued prison confinement constitutes cruel and unusual punishment in light of the increased risk he faces from contracting COVID-19 while in prison. Anderson contended that the risk constitutes a part of his sentence or punishment and is, thus, an impermissible additional punishment.² As Anderson acknowledged in his petition below, it is “[t]he prison environment, on its own,” that gave rise to his claim. Anderson's claim inherently challenged his conditions of confinement. And a postconviction petition for a writ of habeas corpus is not the proper vehicle to raise a challenge to the conditions of confinement. See Bowen v. Warden, 100 Nev. 489, 490, 686 P.2d 250, 250 (1984). Accordingly, Anderson failed to demonstrate actual prejudice to overcome the procedural bars to his petition. We therefore conclude the district court did not err by denying Anderson's petition, and we

ORDER the judgment of the district court AFFIRMED.

FOOTNOTES

1.   Anderson v. State, No. 69858-COA, 2016 WL 4422185 (Nev. Ct. App. Aug. 16, 2016) (Order of Affirmance).

2.   Anderson's actual-prejudice argument mirrored his underlying substantive claim.