                           IN THE SUPREME COURT OF THE STATE OF NEVADA


                 KEVIN RAY HOLMES,                                      No. 68955
                 Appellant,
                 vs.
                 THE STATE OF NEVADA,                                         FILED
                 Respondent.
                                                                               APR 1 4 2016
                                                                              TRACIE K. LINDEMAN
                                                                         CLERK OF SUPREME COURT
                                                                         BY       •
                                                                                DEPUTY CLERK




                                           ORDER OF AFFIRMANCE
                               This is a pro se appeal from a district court order denying
                 appellant Kevin Ray Holmes' postconviction petition for a writ of habeas
                 corpus. Eighth Judicial District Court, Clark County; Michael Villani,
                 Judge.
                               Holmes filed his petition on June 5, 2015, more than 13 years
                 after remittitur issued from his direct appeal on July 12, 2001.         Holmes v.
                 State, Docket No. 35367 (Order of Affirmance, May 21, 2001). Thus, his
                 petition was untimely filed. NRS 34.726(1). Moreover, the petition was
                 successive because Holmes had previously sought postconviction relief.'
                 NRS 34.810(2). The petition was therefore procedurally barred absent a
                 demonstration of good cause and prejudice. NRS 34.726(1); NRS 34.810.




                          'Holmes v. State, Docket No. 41065 (Order of Affirmance, January 2,
                 2004).


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                Further, because the State pleaded laches, Holmes was required to
                overcome the presumption of prejudice to the State. NRS 34.800(2). 2
                            Holmes contends that the district court erred by denying his
                petition because he demonstrated good cause and prejudice to excuse the
                untimely filing for several reasons: (1) the district court erroneously
                denied his first postconviction petition and this court erroneously
                affirmed, (2) the petition relates back to his first postconviction petition,
                (3) he received ineffective-assistance of trial and appellate counsel, and (4)
                he was not given counsel in his first postconviction petition in violation of
                Martinez v. Ryan, 566 U.S. , 132 S. Ct. 1309 (2012). We conclude that
                the district court did not err by denying the petition because Holmes failed
                to demonstrate good cause and prejudice sufficient to excuse the
                procedural bars. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503,
                506 (2003) ("[G]ood cause means a substantial reason; one that affords a
                legal excuse." (internal quotation marks omitted)); Brown v. McDaniel,
                130 Nev., Adv. Op. 60, 331 P.3d 867, 875 (2014) (holding that Martinez
                does not apply to Nevada postconviction procedures).
                            Holmes also contends that the district court erred by denying
                his petition because he is innocent. See Pellegrini v. State, 117 Nev. 860,
                887, 34 P.3d 519, 537 (2001) (explaining that court can excuse the
                procedural bars if failure to consider the claim would result in a
                fundamental miscarriage of justice). We conclude that the district court
                did not err by denying the petition because Holmes fails to offer new



                      2 We reject Holmes' assertions that his petition is not successive and
                that laches does not apply.


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                  evidence of innocence and his claim contemplates legal rather than factual
                  innocence. See Brown, 130 Nev., Adv. Op. 60, 331 P.3d at 875.
                              Having considered Holmes' contentions and concluded they
                  lack merit, we
                              ORDER the judgment of the district court AFFIRMED.




                                                               Douglas



                                                               Gibboris

                  CHERRY, J., dissenting:
                              I would extend the equitable rule recognized in Martinez to
                  this case because appellant was convicted of murder and is facing a severe
                  sentence. See Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867,
                  875 (2014) (Cherry, J., dissenting). Accordingly, I would reverse and
                  remand for the district court to determine whether appellant can
                  demonstrate a substantial underlying ineffective-assistance-of-counsel
                  claim that was omitted due to the district court's failure to appoint counsel
                  during appellant's first postconviction proceeding.


                                                               ot4
                                                               Cherry
                                                                              2
                  cc:   Hon. Michael Villani, District Judge
                        Kevin Ray Holmes
                        Attorney General/Carson City
                        Clark County District Attorney
                        Eighth District Court Clerk
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