                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                DONALD RAY LEE,                                       No. 65288
                Appellant,
                vs.
                THE STATE OF NEVADA,                                        FILED
                Respondent.
                                                                             APR 1 k 2016
                                                                                  K. LINUER/A\ N




                                        ORDER OF AFFIRMANCE
                            This is a pro se appeal from an order of the district court
                denying a postconviction petition for a writ of habeas corpus. 1 Eighth
                Judicial District Court, Clark County; Elissa F. Cadish, Judge.
                            Appellant filed his petition on October 28, 2013, more than 22
                years after issuance of the remittitur on direct appeal on April 11, 1991. 2
                Lee v. State, Docket No. 17214 (Order Dismissing Appeal, September 14,
                1990). Thus, appellant's petition was untimely filed. See NRS 34.726(1).
                Moreover, appellant's petition was successive because he had previously
                litigated two postconviction petitions, and it constituted an abuse of the
                writ as he raised claims new and different from those raised in his



                      'This appeal has been submitted for decision without oral argument,
                NRAP 34(0(3), and we conclude that the record is sufficient for our review
                and briefing is unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541
                P.2d 910, 911 (1975). We have received and considered the pro se
                memorandum to the court.

                      2 Further,  the petition was filed more than 19 years after the
                effective date of NRS 34.726. See 1991 Nev. Stat., ch. 44, §§ 5, 33, at 75-
                76, 92; Pellegrini v. State, 117 Nev. 860, 874-75, 34 P.3d 519, 529 (2001).

SUPREME COURT
     OF
     NEVADA


(0) 1947A
                 previous petition. 3 See NRS 34.810(1)(b)(2); NRS 34.810(2). Appellant's
                 petition was procedurally barred absent a demonstration of good cause
                 and actual prejudice.       See NRS 34.726(1); NRS 34.810(1)(b); NRS
                 34.810(3). Moreover, because the State specifically pleaded laches,
                 appellant was required to overcome the rebuttable presumption of
                 prejudice. NRS 34.800(2).
                               Based upon our review of the record on appeal, we conclude
                 that the district court did not err in denying the petition as procedurally
                 barred. Appellant's argument regarding new case law did not provide
                 good cause for grounds 2 and 3, which were reasonably available to be
                 raised in a timely petition. 4 See Hathaway v. State, 119 Nev. 248, 252-53,
                 71 P.3d 503, 506 (2003). The decision of the California Supreme Court in
                 People v. Caballero, 282 P.3d 291 (Cal. 2012) did not provide good cause as
                 it is not binding authority. Appellant's reliance upon Miller v. Alabama,
                 567 U.S. , 132 S. Ct. 2455 (2012), is misplaced as Nevada did not have
                 a mandatory sentencing scheme at the time that appellant committed his
                 crimes, and thus Miller would not provide good cause. Appellant's petition
                 was filed three years after the decision in Graham v. Florida, 560 U.S. 48
                 (2010), and thus the Graham decision would not provide good cause in this


                           v. State, Docket No. 26920 (Order Dismissing Appeal, June 23,
                       3 Lee
                 1998); Lee v. Warden, Docket No. 43697 (Order of Affirmance, May 19,
                 2005).

                       4To   the extent that appellant claimed that his sentence was illegal,
                 appellant failed to demonstrate that his sentence exceeded the maximum
                 allowed by statute at the time he committed his crime. See 1977 Nev.
                 Stat., ch. 430, § 82, at 864-65 (NRS 200.030). NRS 176.025 at the time
                 appellant was convicted did not preclude a sentence of life without the
                 possibility of parole. See 1967 Nev. Stat., ch. 523, § 232, at 1432.

SUPREME COURT
        OF
     NEVADA


(0) 1947A    a
                 case to litigate any claims relating to his parole eligibility on counts 1
                 through 4. 5 Appellant further failed to overcome the presumption of
                 prejudice to the State.
                               Nevertheless, we note that appellant's concern regarding the
                 availability of parole has been addressed by legislative action during the
                 pendency of these proceedings In 2015, the Legislature enacted Assembly
                 Bill 267, which makes appellant eligible for parole after serving 20
                 calendar years. 2015 Nev. Stat., ch. 152, § 3, at 618 (providing that a
                 prisoner who was sentenced as an adult for an offense or offenses that
                 resulted in the death of only one victim that was committed when the
                 prisoner was less than 18 years of age is eligible for parole when the
                 prisoner has served 20 calendar years of incarceration); see also State   V.


                 Boston, 131 Nev., Adv. Op. 98, 363 P.3d 453 (2015) (concluding that A.B.
                 267 applies to aggregate sentences). No additional relief would be
                 required under the cases referenced by appellant even had he overcome
                 the procedural bars to his petition. Accordingly, we
                               ORDER the judgment of the district court AFFIRMED.




                 DID WI Ae3                  J.
                 Douglas

                       5 Thedecision in Graham would not provide good cause to litigate
                 any claims relating to his murder conviction as the decision in Graham
                 only applied to nonhomicide offenses. See 560 U.S. at 82. Further, the
                 2015 amendments to NRS 176.025 do not apply to convictions predating
                 October 1, 2015. See 2015 Nev. Stat., ch. 152, §§ 2, 5, at 618-19.

SUPREME COURT
        OF
     NEVADA
                                                       3
(0) 1947A    e
                cc:   Hon. Elissa F. Cadish, District Judge
                      Donald Ray Lee
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




SUPREME COURT
        OF

     NEVADA
                                                     4
(0) 1947A
