DONALD RAY LEE, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

SUPREME COURT 

OF 

NEVADA 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

No. 65288 

FILED 

APR 1 k 2016 

K. LINUER/A\ N 

ORDER OF AFFIRMANCE 

This is a pro se appeal from an order of the district court 

denying a postconviction petition for a writ of habeas corpus. 1Eighth 

Judicial District Court, Clark County; Elissa F. Cadish, Judge. 

Appellant filed his petition on October 28, 2013, more than 22 

years after issuance of the remittitur on direct appeal on April 11, 1991. 2 

Lee v. State, Docket No. 17214 (Order Dismissing Appeal, September 14, 

1990). Thus, appellant's petition was untimely filed. See NRS 34.726(1). 

Moreover, appellant's petition was successive because he had previously 

litigated two postconviction petitions, and it constituted an abuse of the 

writ as he raised claims new and different from those raised in his 

'This appeal has been submitted for decision without oral argument, 

NRAP 34(0(3), and we conclude that the record is sufficient for our review 

and briefing is unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 

P.2d 910, 911 (1975). We have received and considered the pro se 

memorandum to the court. 

2Further, the petition was filed more than 19 years after the 

effective date of NRS 34.726. See 1991 Nev. Stat., ch. 44, §§ 5, 33, at 75- 

76, 92; Pellegrini v. State, 117 Nev. 860, 874-75, 34 P.3d 519, 529 (2001). 

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previous petition. 3 See NRS 34.810(1)(b)(2); NRS 34.810(2). Appellant's 

petition was procedurally barred absent a demonstration of good cause 

and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS 

34.810(3). Moreover, because the State specifically pleaded laches, 

appellant was required to overcome the rebuttable presumption of 

prejudice. NRS 34.800(2). 

Based upon our review of the record on appeal, we conclude 

that the district court did not err in denying the petition as procedurally 

barred. Appellant's argument regarding new case law did not provide 

good cause for grounds 2 and 3, which were reasonably available to be 

raised in a timely petition. 4 See Hathaway v. State, 119 Nev. 248, 252-53, 

71 P.3d 503, 506 (2003). The decision of the California Supreme Court in 

People v. Caballero, 282 P.3d 291 (Cal. 2012) did not provide good cause as 

it is not binding authority. Appellant's reliance upon Miller v. Alabama, 

567 U.S. , 132 S. Ct. 2455 (2012), is misplaced as Nevada did not have 

a mandatory sentencing scheme at the time that appellant committed his 

crimes, and thus Miller would not provide good cause. Appellant's petition 

was filed three years after the decision in Graham v. Florida, 560 U.S. 48 

(2010), and thus the Graham decision would not provide good cause in this 

3Lee v. State, Docket No. 26920 (Order Dismissing Appeal, June 23, 

1998); Lee v. Warden, Docket No. 43697 (Order of Affirmance, May 19, 

2005). 

4To the extent that appellant claimed that his sentence was illegal, 

appellant failed to demonstrate that his sentence exceeded the maximum 

allowed by statute at the time he committed his crime. See 1977 Nev. 

Stat., ch. 430, § 82, at 864-65 (NRS 200.030). NRS 176.025 at the time 

appellant was convicted did not preclude a sentence of life without the 

possibility of parole. See 1967 Nev. Stat., ch. 523, § 232, at 1432. 
J. 

case to litigate any claims relating to his parole eligibility on counts 1 

through 4. 5Appellant further failed to overcome the presumption of 

prejudice to the State. 

Nevertheless, we note that appellant's concern regarding the 

availability of parole has been addressed by legislative action during the 

pendency of these proceedings In 2015, the Legislature enacted Assembly 

Bill 267, which makes appellant eligible for parole after serving 20 

calendar years. 2015 Nev. Stat., ch. 152, § 3, at 618 (providing that a 

prisoner who was sentenced as an adult for an offense or offenses that 

resulted in the death of only one victim that was committed when the 

prisoner was less than 18 years of age is eligible for parole when the 

prisoner has served 20 calendar years of incarceration); see also State V. 

Boston, 131 Nev., Adv. Op. 98, 363 P.3d 453 (2015) (concluding that A.B. 

267 applies to aggregate sentences). No additional relief would be 

required under the cases referenced by appellant even had he overcome 

the procedural bars to his petition. Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 

DID WI Ae3 

Douglas 

5The decision in Graham would not provide good cause to litigate 

any claims relating to his murder conviction as the decision in Graham 

only applied to nonhomicide offenses. See 560 U.S. at 82. Further, the 

2015 amendments to NRS 176.025 do not apply to convictions predating 

October 1, 2015. See 2015 Nev. Stat., ch. 152, §§ 2, 5, at 618-19. 

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cc: Hon. Elissa F. Cadish, District Judge 

Donald Ray Lee 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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