Opinion
No. 62896
12-17-2013
DONALD LEE COLEMAN, Appellant, v. THE STATE OF NEVADA, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
This is an appeal from a district court order dismissing appellant Donald Lee Coleman's post-conviction petition for a writ of habeas corpus. Second Judicial District Court, Washoe County; Patrick Flanagan, Judge.
Coleman contends that the district court erred by dismissing his habeas petition because the State's use of the Kazalyn instruction at his trial violated his right to due process. Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992), receded from by Byford v. State, 116 Nev. 215, 233-37, 994 P.2d 700, 712-15 (2000) (disapproving of the Kazalyn instruction and providing district courts with new instructions to use in the future); see Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007) (concluding that Kazalyn instruction was unconstitutional because it diminished the State's burden to prove all of the elements of first-degree murder beyond a reasonable doubt). But see Babb v. Lozowsky, 719 F.3d 1019, 1029-30 (9th Cir. 2013) (disapproving of holding in Polk and noting its effective overruling by Nika v. State, 124 Nev. 1272, 198 P.3d 839 (2008)), cert. denied, 571 U.S. _, 82 U.S.L.W. 3257 (Nov. 4, 2013). Without expressly making the argument on appeal, Coleman claims that the Ninth Circuit's holding in Polk provides the good cause necessary to excuse the procedural bars to a consideration of his petition on the merits. We disagree.
Coleman's petition was untimely because it was filed more than 15 years after we resolved his direct appeal. See NRS 34.726(1); Coleman v. State, Docket No. 25815 (Order Dismissing Appeal, December 19, 1995). Coleman's petition was also successive. See NRS 34.810(1)(b)(2); see generally Coleman v. State, Docket No. 31410 (Order of Affirmance, June 18, 2001). The district court initially granted Coleman's "Motion to File Successive Writ of Habeas Corpus," finding that he "has shown good cause that his request to file a successive Writ is timely made and is not an abuse of the writ." Subsequently, however, in granting the State's motion to dismiss Coleman's petition, the district court relied upon this court's holding in Nika, where, among other things, we stated that Byford does not apply to cases that were final when it was decided, 124 Nev. at 1276, 198 P.3d at 842. Coleman's conviction was final more than four years before Byford was decided. Therefore, we conclude that Coleman cannot demonstrate good cause and prejudice sufficient to excuse the procedural bars to his petition, and the district court did not err by rejecting his claim. See State v. Huebler, 128 Nev. _, _, 275 P.3d 91, 95 (2012) ("We give deference to the district court's factual findings regarding good cause, but we will review the court's application of the law to those facts de novo."), cert. denied, _ U.S. _, 133 S. Ct. 988 (2013). Accordingly, we
We also deny Coleman's request to reconsider our holding in Nika.
ORDER the judgment of the district court AFFIRMED.
_______________, C.J.
Pickering
_______________, J.
Hardesty
_______________, J.
Cherry
cc: Hon. Patrick Flanagan, District Judge
Story Law Group
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk