HAYES v. STATE (2023)

ORDER OF AFFIRMANCE

Hayes’ petition was filed more than two years after issuance of the remittitur on direct appeal on August 13, 2019. See Hayes v. State, No. 75405-COA, 2019 WL 3231008 (Nev. Ct. App. July 17, 2019) (Order of Affirmance). Thus, Hayes’ petition was untimely filed. See NRS 34.726(1). Moreover, Hayes’ 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.¹ See NRS 34.810(1)(b)(2); NRS 34.810(2). Hayes’ petition was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b), (3).

Hayes claimed the procedural bars should not apply because his counsel failed to provide him with records related to his case. However, counsel's alleged failure to provide records does not constitute cause for the delay because it did not prevent Hayes from filing a timely petition. See Hood v. State, 111 Nev. 335, 338, 890 P.2d 797, 798 (1995). Therefore, we conclude the district court did not err by rejecting his good-cause claim. Accordingly, we

ORDER the judgment of the district court AFFIRMED.²

FOOTNOTES

1.   See Hayes v. Gittere, No. 83421, 2021 WL 4238029 (Nev. Sept. 16, 2021) (Order Dismissing Appeal).

2.   On appeal, Hayes contends the district court did not rule on his motion for leave to proceed in forma pauperis. However, the record indicates that the district court granted his motion on March 21, 2022. Therefore, Hayes is not entitled to relief on this claim.