MITCHELL v. STATE (2022)

ORDER OF AFFIRMANCE

Mitchell argues the district court erred by dismissing his February 24, 2021, petition as procedurally barred. Mitchell filed his petition more than two years after entry of the judgment of conviction on January 17, 2019.¹ Thus, Mitchell's petition was untimely filed. See NRS 34.726(1). Mitchell's petition was procedurally barred absent a demonstration of good cause—cause for the delay and undue prejudice. See id.

Mitchell claimed that the procedural time bar did not apply because the sentencing court did not impose a set amount of restitution, and therefore, his conviction was not final. The Nevada Supreme Court has held “that a judgment of conviction that imposes a restitution obligation but does not specify its terms is not a final judgment.” Whitehead v. State, 128 Nev. 259, 263, 285 P.3d 1053, 1055 (2012). Mitchell's claim was belied by the record as the judgment of conviction plainly imposed restitution in the amount of $108. Thus, the judgment of conviction specified the terms of Mitchell's restitution and was therefore a final judgment. Accordingly, Mitchell failed to demonstrate that the procedural time bar did not apply to his petition, and we conclude that the district court did not err by dismissing the petition as procedurally barred.

Next, Mitchell argues on appeal that the district court erred by denying his request to join this postconviction proceeding with one arising out of a separate criminal matter. Appellate courts review a district court's joinder decision for an abuse of discretion. Farmer v. State, 133 Nev. 693, 701, 405 P.3d 114, 122 (2017). The district court concluded that joinder of the different proceedings was not appropriate and denied Mitchell's request. Mitchell failed to demonstrate that the district court abused its discretion by denying joinder. Therefore, we conclude that Mitchell is not entitled to relief, and we

ORDER the judgment of the district court AFFIRMED.²

FOOTNOTES

1.   Mitchell did not pursue a direct appeal.

2.   Mitchell appears to argue on appeal that he is entitled to relief due to application of Martinez v. Ryan, 566 U.S. 1 (2012). However, Mitchell did not raise this claim in his petition, and we decline to consider it on appeal in the first instance. See McNelton v. State, 115 Nev. 396, 415-16, 990 P.2d 1263, 1275-76 (1999).