                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                ORLANDO G. LAY,                                        No. 68100
                Appellant,
                vs.
                THE STATE OF NEVADA,
                                                                              FILED
                Respondent.                                                    APR 15 2016

                                        ORDER OF AFFIRMANCE

                            This is a pro se appeal from a district court order denying a
                postconviction petition for writ of habeas corpus. Eighth Judicial District
                Court, Clark County; Stefany Miley, Judge.
                            Appellant Orlando Lay pleaded guilty to sexually motivated
                coercion while represented by Jeffrey Maningo. Thereafter, Lay hired Ben
                Nadig to represent him in a post-sentencing motion to withdraw his guilty
                plea based on Maningo's purported ineffective assistance. Nearly two
                years after the district court entered Lay's judgment of conviction, he filed
                the present petition for a writ of habeas corpus.' The district court denied
                the petition as untimely under NRS 34.726(1), concluding Lay did not


                       "Lay filed a petition for a writ of coram nobis before filing the
                present petition for a writ of habeas corpus. The district court denied
                Lay's coram nobis petition, and Lay did not appeal that decision. To the
                extent that Lay's present habeas petition draws from his earlier petition
                for a writ of coram nobis, we note that the district court entered its order
                denying Lay's coram nobis petition more than six months before Lay filed
                this appeal. Therefore, we are unable to address any alleged error in the
                district court's coram nobis decision. See NRAP 3(a)(1); see also NRAP 4.



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                  demonstrate (1) good cause for his delay or (2) that denying the petition
                  would result in a fundamental miscarriage of justice.
                                Lay now appeals, arguing he is entitled to at least an
                  evidentiary hearing because (1) Nadig's alleged ineffective assistance
                  constitutes good cause for his failure to comply with NRS 34.726(1)'s one-
                  year time-bar, (2) Maningo's alleged ineffective assistance is also good
                  cause for failing to comply with NRS 34.726(1), and (3) failing to consider
                  the petition amounts to a fundamental miscarriage of justice because Lay
                  can adequately demonstrate his factual innocence. We reject these
                  arguments and conclude that Lay cannot overcome NRS 34.726(1)'s one-
                  year time-bar.
                                District courts must dismiss habeas petitions not filed within
                  one year after a judgment of conviction 2 unless (1) there is good cause for
                  the petitioner's delay, NRS 34.726(1); State v. Eighth Judicial Din. Court,
                  121 Nev. 225, 231-32, 112 P.3d 1070, 1074 (2005); or (2) the petitioner can
                  show that a fundamental miscarriage of justice would result if his petition
                  is barred, Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
                                First, Lay's ineffective assistance claims against Nadig—who
                  represented Lay in a post-sentencing motion to withdraw his guilty plea—
                  cannot constitute good cause to overcome NRS 34.726(1)'s one-year
                  procedural bar. Where there is no statutory or constitutional right to
                  counsel, ineffective assistance of counsel will not constitute good cause to


                        2 Laydoes not argue he filed his petition within the one-year time
                  frame provided under NRS 34.726(1); indeed, Lay's judgment of conviction
                  was entered November 19, 2012, and he filed the present petition
                  December 5, 2014.



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                  overcome procedural bars. Crump v. Warden, 113 Nev. 293, 303 n.5, 934
                  P.2d 247, 253 n.5 (1997). This court has never found a constitutional right
                  to counsel for a post-sentencing motion to withdraw a guilty plea, cf. Beak
                  v. State, 106 Nev. 729, 731, 802 P.2d 2, 4 (1990) (finding a constitutional
                  right to counsel during a pre-sentencing motion to withdraw guilty plea),
                  and neither the United States nor Nevada Constitutions recognize a right
                  to counsel during postconviction proceedings, McKague v. Whitley,        112
                  Nev. 159, 163, 912 P.2d 255, 257-58 (1996) (citing Coleman v. Thompson,
                  501 U.S. 722, 752 (1991)). Moreover, Lay has not discussed, and we have
                  not found, any Nevada statute giving him a right to counsel for his post-
                  sentencing motion to withdraw his guilty plea.
                              As such, the district court properly concluded that Lay did not
                  overcome NRS 34.726(1)'s one-year time-bar because he had no
                  constitutional or statutory right to counsel when Nadig represented him,
                  and therefore, Lay did not have a right to the effective assistance of
                  counsel. See Crump, 113 Nev. at 302-03 n.5, 934 P.2d at 253 n.5 (1997).
                              Second, Lay's claim that Maningo provided ineffective
                  assistance is itself time-barred. Lay's claims against Maningo involve
                  conduct that, if true, would have been apparent well within a year of his
                  judgment of conviction, 3 and "an adequate allegation of good cause would
                  sufficiently explain why a petition was filed beyond the [one-year]


                        3 Reading  Lay's petition holistically, it appears he argues Maningo
                  provided ineffective assistance by (1) advising Lay a jury would convict
                  him, (2) not believing Lay's claim to innocence, (3) advising Lay not to ruin
                  a good plea offer by claiming innocence during the plea canvas, (4) not
                  advising Lay of the immigration consequences of his plea, and (5) not
                  seriously investigating Lay's innocence.



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                   statutory time period. Thus, a claim or allegation that was reasonably
                   available to the petitioner during the statutory time period would not
                   constitute good cause to excuse the delay."   Hathaway v. State, 119 Nev.
                   248, 252-53, 71 P.3d 503, 506 (2003). Thus, the district court properly
                   determined Maningo's alleged ineffective assistance is not good cause for
                   delay under NRS 34.726(1) because the claims against Mailing° are
                   themselves time-barred.
                                 Finally, Lay argues the evidence shows that he is factually
                   innocent, and therefore, applying NRS 34.726(1)'s time-bar constitutes a
                   fundamental miscarriage of justice. The district court rejected this
                   argument, concluding that Lay did not produce any new evidence and
                   merely argued the evidence against him was insufficient to support a
                   conviction.
                                 "This court may excuse the failure to show cause [for delay]
                   where the prejudice from a failure to consider the claim amounts to a
                   fundamental miscarriage of justice." Pellegrini, 117 Nev. at 887, 34 P.3d
                   at 537 (internal quotation marks omitted). "In order to demonstrate a
                   fundamental miscarriage of justice, a petitioner must make a colorable
                   showing of actual innocence—factual innocence, not legal innocence."
                   Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 875 (2014).
                   "Actual innocence means that 'it is more likely than not that no reasonable
                   juror would have convicted him in light of. . . new evidence." Id. (quoting
                   Calderon u. Thompson, 523 U.S. 538, 559 (1998)). Therefore, to avoid NRS
                   34.726(1)'s time-bar based on a "fundamental miscarriage of justice," the
                   petitioner must present (1) new evidence, (2) showing he is factually
                   innocent, (3) such that no reasonable juror would convict him. Id.



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                                We agree with the district court's determination that Lay has
                  failed to produce new evidence, 4 and his arguments merely challenge the
                  legal sufficiency of the case against him, as opposed to demonstrating
                  actual innocence. Therefore, the district court properly concluded that
                  applying NRS 34.726(1)'s time-bar would not result in a fundamental
                  miscarriage of justice.
                                Accordingly, we
                                ORDER the judgment of the district court AFFIRMED.




                                                      Saitta


                                                                                    ,   J.
                                                      Pickering




                        4 Lay filed a second habeas petition after the district court denied the
                  present petition. The second petition purports to amend the present
                  habeas petition by providing new evidence of Lay's innocence. First, Lay
                  cannot amend a petition that the district court has already denied.
                  Second, the "new evidence" tends to inculpate Lay. In a letter to an
                  immigration judge, Lay's victim requests clemency for Lay's "mistakes"
                  which were the result of a "weak moment." At best, the letter says that
                  some unspecified details that were reported about the incident were
                  incorrect, but "something did happen that night and it was not right."



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                       cc: Hon. Stefany Miley, District Judge
                            Orlando G. Lay
                            Attorney General/Carson City
                            Clark County District Attorney
                            Eighth District Court Clerk




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