LEWIS v. GITTERE (2022)

ORDER OF AFFIRMANCE

Lewis's petition was filed more than one year after issuance of the remittitur on direct appeal on October 8, 2019. See Lewis u. State, No. 75136, 2019 WL 4391201 (Nev. Sept. 12, 2019) (Order of Affirmance). Thus, Lewis's petition was untimely filed. See NRS 34.726(1). Moreover, Lewis's petition was successive as he had previously filed a postconviction petition for a writ of habeas corpus, 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(1)(b)(2); NRS 34.810(2). Lewis'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).

Lewis appeared to argue that new evidence and the lack of an evidentiary hearing on his previous petition excused the procedural bars. Lewis failed to describe the new evidence in his petition below, and the decision by the district court to not conduct an evidentiary hearing on his previous petition is not an impediment that prevented Lewis from timely filing his petition. See Hathaway v. State, 119 Nev. 248, 253, 71 P.3d 503, 506 (2003). Therefore, we conclude Lewis has failed to demonstrate the district court erred by denying his petition as procedurally barred.

On appeal, Lewis claims a delay in getting his case file and tolling of the filing period constitute good cause. Because these good-cause claims were not raised in his petition below, we decline to consider them for the first time on appeal. See McNelton v. State, 115 Nev. 396, 416, 990 P.2d 1263, 1276 (1.999); see also NRS 34.735 (requiring a petitioner to plead good cause on the face of the petition).

For the foregoing reasons, we

ORDER the judgment of the district court AFFIRMED.

FOOTNOTES

1.   See Lewis v. State, No. 80560-COA, 2021 WL 237205 (Nev. Ct. App. Jan. 22, 2021) (Order of Affirmance).