                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                GARY SHEPARD,                                         No. 68699
                Appellant,
                vs.
                THE STATE OF NEVADA,
                                                                                FILED
                Respondent.                                                     APR 1 4 2016
                                                                              TRACE K. LINDFMAN
                                                                           CLERK OF SUPREME COURT
                                                                          BY
                                                                               "---S4121
                                                                                  CEPUTY CLE17.--

                                         ORDER OF AFFIRMANCE
                              This is a pro se appeal from a district court order denying
                appellant Gary Shepard's postconviction petition for a writ of habeas
                corpus. Second Judicial District Court, Washoe County; Scott N.
                Freeman, Judge.
                              Shepard filed his petition April 24, 2015, more than 12 years
                after remittitur issued from his direct appeal on October 8, 2002. Shepard
                v. State, Docket No. 38308 (Order of Affirmance, September 10, 2002).
                Thus, the petition was untimely. See NRS 34.726. The petition was also
                successive because Shepard had previously sought postconviction relief'
                and constituted an abuse of the writ to the extent it raised a new claim.
                See NRS 34.810. Thus, Shepard's petition was procedurally barred absent
                a demonstration of good cause and prejudice.      See NRS 34.726(1); NRS
                34.810(3).
                              Shepard argues that the district court erred by applying the
                procedural bars for two reasons. First, he asserts that he is actually
                innocent of first-degree murder. See Lisle v. State, 131 Nev., Adv. Op. 39,
                351 P.3d 725, 729-30 (2015) (recognizing that a district court may reach


                         'Shepard v. State, Docket No. 45481 (Order of Affirmance, Nov. 8,
                2006).
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                the merits of a procedurally defaulted claim if a petitioner demonstrates
                actual innocence). We disagree because Shepard failed to allege sufficient
                facts to constitute actual innocence.   See Mitchell v. State, 122 Nev. 1269,
                1273-74, 149 P.3d 33, 36 (2006) ("Actual innocence means factual
                innocence, not mere legal insufficiency." (internal quotation marks and
                alterations omitted)); see also Rozzelle v. Sec'y, Florida Dep't of Corr., 672
                F.3d 1000, 1016 (11th Cir. 2012) (explaining that the actual innocence
                exception contemplates the "extremely rare" cases where the State
                convicted an innocent man, not "run of the mill" cases where the petitioner
                argues that he is guilty of a lesser offense than that for which he was
                convicted). 2 Second, Shepard asserts that Martinez v. Ryan, 566 U.S.
                132 S. Ct. 1309 (2012), and Ha Van Nguyen v. Curry, 736 F.3d 1287, 1289
                (9th Cir. 2013), constitute good cause to excuse the procedural bars. We
                disagree because these holdings do not apply to Nevada's postconviction
                procedures. Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 870
                (2014). Accordingly, we
                             ORDER the judgment of the district court AFFIRMED. 3




                                                             Gibbons


                      2Although   the district court's order does not address Shepard's
                actual-innocence argument, we conclude that no relief is warranted
                because the claim clearly lacks merit.

                      3 Wealso conclude that the district court did not abuse its discretion
                by denying Shepard's motion to appoint counsel. See NRS 34.750.

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                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 ineffective assistance of postconviction
                counsel.




                                                           Cherry       9


                cc: Hon. Scott N. Freeman, District Judge
                     Gary Shepard
                     Attorney General/Carson City
                     Washoe County District Attorney
                     Washoe District Court Clerk




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