                             IN THE SUPREME COURT OF THE STATE OF NEVADA


                   VORNELIUS JAMAL PHILLIPS,                             No. 68281
                   Appellant,
                   vs.
                   THE STATE OF NEVADA,
                                                                               FILED
                   Respondent.                                                 APR 1 5 2016
                                                                               TRACE K LFLIDEMAN
                                                                            CLERK F SUPREME COURT

                                                                                DEPUTY CLERK




                                           ORDER OF AFFIRMANCE
                                This is a pro se appeal from a district court order denying
                   appellant's postconviction petition for a writ of habeas corpus. Eighth
                   Judicial District Court, Clark County; Elissa F. Cadish, Judge.
                                Appellant filed his petition' on February 5, 2014, more than 9
                   years after his judgment of conviction was entered on April 27, 2004.
                   Thus, appellant 's petition was untimely filed. See NRS 34.726. The
                   petition was also successive because appellant had previously sought
                   postconviction relief. 2 See NRS 34.810(2). Accordingly, the petition was


                         "Appellant originally filed a "motion for sentence modification and/or
                   motion to withdraw plea (based on a manifest injustice). " This court
                   directed the district court to construe the motion as a postconviction
                   petition for a writ of habeas corpus. See Phillips v. State, Docket No.
                   65584 (Order Affirming in Part, Reversing in Part, and Remanding,
                   November 13, 2014).

                         2 Phillips State, Docket No. 52692 (Order of Affirmance and
                                      V.

                   Limited Remand to Correct the Judgment of Conviction, March 10, 2010).




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                procedurally barred absent a demonstration of good cause and prejudice.
                See NRS 34.726(1); NRS 34.810(3). Further, because the State pleaded
                laches, appellant was required to overcome the presumption of prejudice
                to the State. See NRS 34.800.
                            As good cause, appellant contends that he was incompetent
                when he pleaded guilty due to his intellectual disability (mental
                retardation) and mental illness, and counsel was ineffective for allowing
                him to plead guilty. Appellant fails to demonstrate good cause and
                prejudice. See Phelps v. Director, Prisons, 104 Nev. 656, 660, 764 P.2d
                1303, 1306 (1988) (holding that petitioner's claim of organic brain damage,
                borderline mental retardation and reliance on assistance of inmate law
                clerk unschooled in the law did not constitute good cause for the filing of a
                successive postconviction petition). 3 Appellant also asserts that failure to
                review the claims would result in a fundamental miscarriage of justice.
                See Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996)
                (explaining that a court can consider procedurally defaulted claims when
                failing to do so would result in a fundamental miscarriage of justice).
                Specifically, appellant argues that he killed the victim by strangling her
                and therefore did not commit first-degree murder with the use of a deadly
                weapon. This claim lacks merit because appellant failed to offer new
                evidence of actual innocence. Calderon v. Thompson, 523 U.S. 538, 559
                (1998) (quoting Schlup v. Delo,      513 U.S. 298, 327 (1995)). Finally,


                      3We note that this claim is substantially similar to that raised in the
                prior petition.




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                appellant failed to overcome the presumption of prejudice to the State. 4
                Therefore, we
                            ORDER the judgment of the district court AFFIRMED.


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                                                                OvAt                   J.
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                                                                                      , J.
                                                                 bons




                cc:   Hon. Elissa F. Cadish, District Judge
                      Vornelius Jamal Phillips
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




                      4We    conclude that the district court did not err by denying
                appellant's request for counsel. See NRS 34.750(1).




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