JEREMY DALE MCCASKILL v. THE STATE OF NEVADA (2026)

ORDER OF AFFIRMANCE

Jeremy Dale McCaskill appeals from a district court order dismissing a postconviction petition for a writ of habeas corpus filed on August 24, 2021, and a supplement thereto. Second Judicial District Court, Washoe County; Hon. Connie J. Steinheimer, Judge.

McCaskill filed his petition more than 16 years after the issuance of remittitur on direct appeal on August 25, 2004. See McCaskill v. State, Docket No. 41407 (Order Affirming and Remanding for Correction of Judgment of Conviction, Aug. 25, 2004). Thus, McCaskill's petition was untimely filed. See NRS 34.726(1). Further, McCaskill's petition was successive because he 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 prior petitions.  ¹ See NRS 34.810(1)(b)(2); NRS 34.810(3).² McCaskill's petition was therefore procedurally barred absent a demonstration of good cause and actual prejudice, see NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(4), or a showing that he is actually innocent such that “the failure to consider the petition on its merits would amount to a fundamental miscarriage of justice,” Berry v. State, 131 Nev. 957, 966, 363 P.3d 1148, 1154 (2015). “In order to demonstrate good cause, a petitioner must show that an impediment external to the defense prevented him or her from complying with the state procedural default rules.” Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). “An impediment external to the defense may be demonstrated by a showing that the factual or legal basis for a claim was not reasonably available” to be raised in a timely petition. Id. (internal quotation marks omitted). To establish actual innocence, a petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Berry, 131 Nev. at 966, 363 P.3d at 1154 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

Additionally, the State specifically pleaded laches in its motion to dismiss McCaskill's petition. Where, as here, more than five years have lapsed since the decision on direct appeal, a petitioner must overcome the rebuttable presumption of prejudice to the State. See NRS 34.800(2). To overcome that presumption, McCaskill was required to demonstrate both that his “petition is based upon grounds of which [he] could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the State occurred,” NRS 34.800(1)(a), and that “a fundamental miscarriage of justice has occurred in the proceedings resulting in the judgment of conviction,” NRS 34.800(1)(b); see also Mitchell v. State, 122 Nev. 1269, 1273-74, 149 P.3d 33, 36 (2006) (indicating that a fundamental miscarriage of justice to overcome the procedural bars to an untimely or successive petition and to satisfy NRS 34.800(1)(b) can both be satisfied with a showing of actual innocence). Demonstrating a fundamental miscarriage of justice requires a petitioner to make a colorable showing of actual innocence—factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998); Brown v. McDaniel, 130 Nev. 565, 576, 331 P.3d 867, 875 (2014); see also House v. Bell, 547 U.S. 518, 537 (2006) (“[A] gateway claim [of actual innocence] requires new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” (internal quotation marks omitted)).

McCaskill first asserted he had good cause to overcome the procedural bars because the factual or legal basis for his claim was not reasonably available until 2019. Specifically, McCaskill alleged that in or around January 2019, he learned about a civil suit filed in the United States District Court for the District of Nevada in 2004 challenging Washoe County's prior practice of contracting with a private law firm to represent criminal defendants in cases where the Washoe County Public Defender's Office had a conflict. McCaskill alleged that he submitted public records requests to Washoe County after learning about the 2004 civil suit and, upon reviewing the records he received in response, discovered the basis for the claims in his petition.

McCaskill's petition included multiple public records dating from 1993 through 2007 pertaining to Washoe County's contracts with private law firms. All these records were created years before McCaskill filed the instant petition in 2021, and years before he allegedly discovered them in 2019. Given that the records McCaskill included with his petition were created long before the statutory deadline for timely filing a postconviction habeas petition and open to inspection by any member of the public, see NRS 239.010(1),³ these records were “reasonably available” to McCaskill to provide a factual and legal basis for the sole claim in his petition. Hathaway, 119 Nev. at 252, 71 P.3d at 506. Therefore, we conclude the district court did not err by denying this good-cause claim.

Second, McCaskill asserted he had good cause to overcome the procedural bars because of official interference. McCaskill alleged that he attempted to file his petition in or around December 2019 but was unable to do so because the prison blocked his access to the court. Even assuming McCaskill's access to the court was stymied in or around December 2019, McCaskill provided no explanation for the delay between December 2019 and the date on which he filed the instant petition, more than eighteen months after the alleged interference occurred. Cf. Rippo v. State, 134 Nev. 411, 420, 423 P.3d 1084, 1096 (2018) (“[W]hen a petition raises a claim that was not available at the time of a procedural default under NRS 34.726(1), it must be filed within a reasonable time after the basis for the claim becomes available” (internal quotation marks omitted)). Therefore, we conclude the district court did not err by denying this good-cause claim.

Third, McCaskill claimed he had good cause to overcome the procedural bars because he received ineffective assistance from his postconviction counsel. McCaskill has not shown good cause to excuse the procedural bars because he was not entitled to the appointment of counsel in the prior postconviction proceedings. See Brown, 130 Nev. at 569, 331 P.3d at 870 (“We have consistently held that the ineffective assistance of postconviction counsel in a noncapital case may not constitute ‘good cause’ to excuse procedural defaults.”); see also McKague v. Warden, 112 Nev. 159, 164-65, 912 P.2d 255, 258 (1996). Therefore, we conclude the district court did not err by denying this good-cause claim.

Fourth, McCaskill asserted he had good cause to overcome the procedural bars because he lacks legal training and is incarcerated. However, neither McCaskill's lack of legal training nor his custodial status provide good cause to overcome the procedural bars. See Phelps v. Dir., Nev. Dep't of Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988) (holding that a lack of trained legal assistance does not constitute sufficient cause to overcome the procedural bars), superseded by statute on other grounds as stated in State v. Haberstroh, 119 Nev. 173, 180-81, 69 P.3d 676, 681 (2003). Therefore, we conclude the district court did not err by denying this good-cause claim.

McCaskill further asserted that the failure to consider his petition would result in a miscarriage of justice because he is actually innocent. McCaskill did not provide or identify any new evidence supporting his claim of actual innocence. Thus, we conclude the district court did not err by denying McCaskill's actual innocence claim.

Finally, we conclude McCaskill did not overcome the presumption of prejudice to the State pursuant to NRS 34.800. As outlined above, McCaskill failed to demonstrate his petition was based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the State occurred and failed to demonstrate a fundamental miscarriage of justice. See NRS 34.800(1). Accordingly, we conclude the district court did not err by dismissing McCaskill's petition as procedurally barred, and we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   See McCaskill v. State, No. 67224, 2015 WL 3500552 (Nev. Ct. App. May 20, 2015) (Order of Affirmance); McCaskill v. State, No. 49824, 2008 WL 6101995 (Nev. Nov. 14, 2008) (Order of Affirmance).

2.   The subsections within NRS 34.810 were renumbered after McCaskill filed the instant petition. We note the substance of the sections cited herein was not altered. See A.B. 49, 82d Leg. (Nev. 2023).

3.   Providing that, unless statutorily exempted from disclosure or declared by law to be confidential, “all public books and public records of a governmental entity must be open at all times” to inspection and copying by any person.