ORDER OF AFFIRMANCE 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

ORLANDO G. LAY, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 68100 

FILED 

APR 15 2016 

This is a pro se appeal from a district court order denying a 

postconviction petition for writ of habeas corpus. Eighth Judicial District 

Court, Clark County; Stefany Miley, Judge. 

Appellant Orlando Lay pleaded guilty to sexually motivated 

coercion while represented by Jeffrey Maningo. Thereafter, Lay hired Ben 

Nadig to represent him in a post-sentencing motion to withdraw his guilty 

plea based on Maningo's purported ineffective assistance. Nearly two 

years after the district court entered Lay's judgment of conviction, he filed 

the present petition for a writ of habeas corpus.' The district court denied 

the petition as untimely under NRS 34.726(1), concluding Lay did not 

"Lay filed a petition for a writ of coram nobis before filing the 

present petition for a writ of habeas corpus. The district court denied 

Lay's coram nobis petition, and Lay did not appeal that decision. To the 

extent that Lay's present habeas petition draws from his earlier petition 

for a writ of coram nobis, we note that the district court entered its order 

denying Lay's coram nobis petition more than six months before Lay filed 

this appeal. Therefore, we are unable to address any alleged error in the 

district court's coram nobis decision. See NRAP 3(a)(1); see also NRAP 4. 

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demonstrate (1) good cause for his delay or (2) that denying the petition 

would result in a fundamental miscarriage of justice. 

Lay now appeals, arguing he is entitled to at least an 

evidentiary hearing because (1) Nadig's alleged ineffective assistance 

constitutes good cause for his failure to comply with NRS 34.726(1)'s oneyear time-bar, (2) Maningo's alleged ineffective assistance is also good 

cause for failing to comply with NRS 34.726(1), and (3) failing to consider 

the petition amounts to a fundamental miscarriage of justice because Lay 

can adequately demonstrate his factual innocence. We reject these 

arguments and conclude that Lay cannot overcome NRS 34.726(1)'s oneyear time-bar. 

District courts must dismiss habeas petitions not filed within 

one year after a judgment of conviction 2unless (1) there is good cause for 

the petitioner's delay, NRS 34.726(1); State v. Eighth Judicial Din. Court, 

121 Nev. 225, 231-32, 112 P.3d 1070, 1074 (2005); or (2) the petitioner can 

show that a fundamental miscarriage of justice would result if his petition 

is barred, Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). 

First, Lay's ineffective assistance claims against Nadig—who 

represented Lay in a post-sentencing motion to withdraw his guilty plea—

cannot constitute good cause to overcome NRS 34.726(1)'s one-year 

procedural bar. Where there is no statutory or constitutional right to 

counsel, ineffective assistance of counsel will not constitute good cause to 

2Lay does not argue he filed his petition within the one-year time 

frame provided under NRS 34.726(1); indeed, Lay's judgment of conviction 

was entered November 19, 2012, and he filed the present petition 

December 5, 2014. 

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overcome procedural bars. Crump v. Warden, 113 Nev. 293, 303 n.5, 934 

P.2d 247, 253 n.5 (1997). This court has never found a constitutional right 

to counsel for a post-sentencing motion to withdraw a guilty plea, cf. Beak 

v. State, 106 Nev. 729, 731, 802 P.2d 2, 4 (1990) (finding a constitutional 

right to counsel during a pre-sentencing motion to withdraw guilty plea), 

and neither the United States nor Nevada Constitutions recognize a right 

to counsel during postconviction proceedings, McKague v. Whitley, 112 

Nev. 159, 163, 912 P.2d 255, 257-58 (1996) (citing Coleman v. Thompson, 

501 U.S. 722, 752 (1991)). Moreover, Lay has not discussed, and we have 

not found, any Nevada statute giving him a right to counsel for his postsentencing motion to withdraw his guilty plea. 

As such, the district court properly concluded that Lay did not 

overcome NRS 34.726(1)'s one-year time-bar because he had no 

constitutional or statutory right to counsel when Nadig represented him, 

and therefore, Lay did not have a right to the effective assistance of 

counsel. See Crump, 113 Nev. at 302-03 n.5, 934 P.2d at 253 n.5 (1997). 

Second, Lay's claim that Maningo provided ineffective 

assistance is itself time-barred. Lay's claims against Maningo involve 

conduct that, if true, would have been apparent well within a year of his 

judgment of conviction, 3and "an adequate allegation of good cause would 

sufficiently explain why a petition was filed beyond the [one-year] 

3Reading Lay's petition holistically, it appears he argues Maningo 

provided ineffective assistance by (1) advising Lay a jury would convict 

him, (2) not believing Lay's claim to innocence, (3) advising Lay not to ruin 

a good plea offer by claiming innocence during the plea canvas, (4) not 

advising Lay of the immigration consequences of his plea, and (5) not 

seriously investigating Lay's innocence. 

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statutory time period. Thus, a claim or allegation that was reasonably 

available to the petitioner during the statutory time period would not 

constitute good cause to excuse the delay." Hathaway v. State, 119 Nev. 

248, 252-53, 71 P.3d 503, 506 (2003). Thus, the district court properly 

determined Maningo's alleged ineffective assistance is not good cause for 

delay under NRS 34.726(1) because the claims against Mailing° are 

themselves time-barred. 

Finally, Lay argues the evidence shows that he is factually 

innocent, and therefore, applying NRS 34.726(1)'s time-bar constitutes a 

fundamental miscarriage of justice. The district court rejected this 

argument, concluding that Lay did not produce any new evidence and 

merely argued the evidence against him was insufficient to support a 

conviction. 

"This court may excuse the failure to show cause [for delay] 

where the prejudice from a failure to consider the claim amounts to a 

fundamental miscarriage of justice." Pellegrini, 117 Nev. at 887, 34 P.3d 

at 537 (internal quotation marks omitted). "In order to demonstrate a 

fundamental miscarriage of justice, a petitioner must make a colorable 

showing of actual innocence—factual innocence, not legal innocence." 

Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 875 (2014). 

"Actual innocence means that 'it is more likely than not that no reasonable 

juror would have convicted him in light of. . . new evidence." Id. (quoting 

Calderon u. Thompson, 523 U.S. 538, 559 (1998)). Therefore, to avoid NRS 

34.726(1)'s time-bar based on a "fundamental miscarriage of justice," the 

petitioner must present (1) new evidence, (2) showing he is factually 

innocent, (3) such that no reasonable juror would convict him. Id. 

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We agree with the district court's determination that Lay has 

failed to produce new evidence, 4and his arguments merely challenge the 

legal sufficiency of the case against him, as opposed to demonstrating 

actual innocence. Therefore, the district court properly concluded that 

applying NRS 34.726(1)'s time-bar would not result in a fundamental 

miscarriage of justice. 

Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 

Saitta 

Pickering 

, J. 

4Lay filed a second habeas petition after the district court denied the 

present petition. The second petition purports to amend the present 

habeas petition by providing new evidence of Lay's innocence. First, Lay 

cannot amend a petition that the district court has already denied. 

Second, the "new evidence" tends to inculpate Lay. In a letter to an 

immigration judge, Lay's victim requests clemency for Lay's "mistakes" 

which were the result of a "weak moment." At best, the letter says that 

some unspecified details that were reported about the incident were 

incorrect, but "something did happen that night and it was not right." 

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cc: Hon. Stefany Miley, District Judge 

Orlando G. Lay 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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