KEITH MANNING SHORT v. THE STATE OF NEVADA (2023)

ORDER OF AFFIRMANCE

Keith Manning Short appeals from an order of the district court denying a “petition for writ of habeas corpus ad subjiciendum.” Second Judicial District Court, Washoe County; Egan K. Walker, Judge.

Short filed his petition on July 21, 2022, more than one year after issuance of the remittitur on direct appeal on December 8, 2020. See Short v. State, No. 80471, 2020 WL 6743131 (Nev. Nov. 13, 2020) (Order of Affirmance). Thus, Short's petition was untimely filed. See NRS 34.726(1). Short's petition was procedurally barred absent a demonstration of good cause—cause for the delay and undue prejudice. See id. Short failed to allege good cause to overcome the procedural bar. Therefore, we conclude the district court did not err by denying his petition as procedurally barred.¹

Short argues the district court should have allowed him to cure his petition to allege good cause. However, “a petitioner's explanation of good cause and prejudice for each procedurally barred claim must be made on the face of the petition.” Chappell v. State, 137 Nev. 780, 787, 501 P.3d 935, 949 (2021); see NRS 34.735. Accordingly, the district court did not err by failing to allow Short any additional opportunity to plead good cause. See NRS 34.750(5) (providing the district court with discretion to order supplemental pleadings). Therefore, we conclude Short is not entitled to relief based on this claim.

Short also argues that changes in his correctional status deprived him of the “30 uninterrupted days” necessary to respond to the State's motion to dismiss his petition. A petitioner has 18 days after service to respond to a motion to dismiss his petition. See NRS 37.750(4) (“The petitioner shall respond within 15 days after service to a motion by the State to dismiss the action.”); NRCP 6(d) (providing that a party has an additional 3 days to respond to a motion served via mail). The State served Short via mail on September 30, 2022, and Short claimed he was not transferred to another correctional institution until approximately October 26, 2022, more than a week after the response was due. Therefore, we conclude Short is not entitled to relief based on this claim.

Finally, Short appears to argue that the district court should have discharged him from custody pursuant to NRS 34.500. This claim was not raised below, and we decline to consider it for the first time on appeal. See McNelton v. State, 115 Nev. 396, 415-16, 990 P.2d 1263, 1275-76 (1999). Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Gibbons, C.J.

Bulla, J.

Westbrook, J.

FOOTNOTES

1.   Because Short's petition challenged the validity of his judgment of conviction, the district court properly treated it as a postconviction petition for a writ of habeas corpus and applied the mandatory procedural bars. See NRS 34.724(2)(b); State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005).