Nevada Cases May 15, 2020: Burkett v. Baca

Case Description

Joel Burkett

Attorney General/Carson City

Clark County District Attorney

ORDER OF AFFIRMANCE

Joel Burkett appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on August 5, 2019. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.

Burkett filed his petition more than 36 years after issuance of the remittitur on direct appeal on May 10, 1983, see Burkett v. State, Docket No. 13600 (Order Dismissing Appeal, April 21, 1983), and more than one year after his amended judgments of conviction were filed on February 28, 1994, and March 2, 2018. Also, Burkett’s petition was filed more than 26 years after the effective date of NRS 34.726. See 1991 Nev. Stat., ch. 44, § 33, at 92; Pellegrini v. State, 117 Nev. 860, 874-75, 34 P.3d 519, 529 (2001), abrogated on other grounds by Rippo v. State , 134 Nev. 411, 423 n.12, 423 P.3d 1084, 1097 n.12 (2018). Burkett’s petition was therefore untimely filed. See NRS 34.726(1). Burkett’s petition was also successive insofar as he could have raised his claims in a previous petition, and an abuse of the writ insofar as he raised claims new and different from those raised in his previous petitions. See NRS 34.810(l)(b)(2) ; NRS 34.810(2). Burkett’s petition was therefore procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1) ; NRS 34.810(l)(b) ; NRS 34.810(3).

Burkett claimed he had good cause to excuse his procedural bars because his claim was not available to raise until June 2019. Burkett claimed his sentence has become unconstitutional because the conditions of his confinement have so affected his mental health that he will never be able to meet the requirements to become a good candidate for parole. Burkett failed to demonstrate actual prejudice. Burkett’s ability or inability to meet the requirements to become a viable candidate for parole do not affect the validity of his judgment of conviction. Further, we note that challenges to the conditions of confinement are not cognizable in a petition for a writ of habeas corpus. See Bowen v. Warden, 100 Nev. 489, 686 P.2d 250 (1984) ; see also Sandin v. Conner, 515 U.S. 472, 486 (1995) (holding that liberty interest protected by the Due Process Clause will generally be limited to restraint that imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life). We therefore conclude the district court did not err by denying Burkett’s petition as procedurally barred, and we

ORDER the judgment of the district court AFFIRMED.