into believing an appeal had been filed because counsel had sent him a 

prepared notice of appeal, and he only learned that no appeal had been 

filed in October of 2012. 

This court has held that an appeal-deprivation claim may in 

certain circumstances provide good cause to excuse the filing of an 

untimely petition. See Hathaway v. State, 119 Nev. 248, 71 P.3d 503 

(2003). In order to demonstrate cause for the delay, a petitioner must 

demonstrate that he actually believed trial counsel had filed an appeal, 

that the belief was objectively reasonable, and that he had filed a postconviction petition within a reasonable time after learning that no direct 

appeal had been filed. Id. at 255, 71 P.3d at 508. 

While appellant may have reasonably believed that his 

counsel had filed an appeal on his behalf given the fact that trial counsel 

had sent him a copy of a notice of appeal, appellant's assertion that he 

believed a direct appeal was pending until 2012, more than three years 

after his judgment of conviction was filed, was not an objectively 

reasonable belief. See id. at 252-53, 71 P.3d at 506. Moreover, appellant 

did not file his petition within a reasonable time after he allegedly learned 

that a direct appeal was not pending. Even assuming that appellant only 

learned in October 2012, that there was no direct appeal pending, 

appellant waited until April 2014, to file his petition. Such a delay was 

not reasonable. Thus, appellant failed to demonstrate that this claim 

should provide cause for the delay. 

Second, appellant claimed that he had good cause due to 

ineffective assistance of post-conviction counsel. Appellant's claim lacked 

merit as appellant had no statutory right to post-conviction counsel, and 

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thus the ineffective assistance of post-conviction counsel did not provide 

good cause for the untimely petition. See Crump v. Warden, 113 Nev. 293, 

303, 934 P.2d 247, 253 (1997); McKague v. Warden, 112 Nev. 159, 164, 912 

P.2d 255, 258 (1996); see also Brown v. McDaniel, 130 Nev. , 331 

P.3d 867, 870 (2014) (explaining that post-conviction counsel's 

performance does not constitute good cause to excuse the procedural bars 

unless the appointment of post-conviction counsel was mandated by 

statute). 

Third, appellant appeared to claim he had good cause because 

he had a mistaken belief that he had been appointed post-conviction 

counsel shortly after he was convicted and did not discover his mistake 

until November 2012. Appellant's mistaken belief did not explain the 

entire delay in filing his petition, and appellant did not explain why his 

confusion prevented him from filing a petition until April 2014. 

A petitioner unable to demonstrate good cause to excuse a 

procedurally defective petition may nevertheless be entitled to review of 

defaulted claims if failure to review the claims would result in a 

fundamental miscarriage of justice. Mazzan v. Warden, 112 Nev. 838, 842, 

921 P.2d 920, 922 (1996). In his petition, appellant argued that his 

convictions for first-degree kidnapping and conspiracy to commit 

kidnapping must be reversed because the kidnapping was incidental to the 

attempted robbery. Notably, the kidnapping convictions for appellant's codefendants, who were tried jointly with appellant, were reversed on direct 

appeal as being incidental to the attempted robbery convictions and the 

convictions for conspiracy to commit kidnapping were reversed due to 

insufficient evidence. See Mayorga-Vargas v. State, Docket No. 53708 

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(Order Affirming in Part, Reversing in Part, and Remanding, July 19, 

2010); Lima-Martinez v. State, Docket No. 56488 (Order Affirming in Part, 

Reversing in Part and Remanding, April 7, 2011). 

Ordinarily, a petitioner must make a colorable showing of 

actual innocence of the crime to demonstrate a fundamental miscarriage of 

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

However, as a matter of law, failure to apply this court's prior 

determination regarding the insufficient evidence on the convictions of 

kidnapping and conspiracy to commit kidnapping to appellant would 

result in a fundamental miscarriage of justice. Appellant and the 

codefendants were tried jointly and the evidence against appellant was 

virtually identical to that of his codefendants. Appellant's convictions for 

kidnapping and conspiracy to commit kidnapping are legally infirm for the 

same reasons that the codefendants' convictions were determined to be 

infirm, and appellant was prevented from raising this claim on direct 

appeal due to his trial counsel's failure to file a direct appea1. 3The record 

demonstrates that when appellant learned that a direct appeal had not 

been filed, he filed a motion to appoint counsel and asserted that he had 

been deprived of a direct appeal. Under these unique circumstances, we 

determine that appellant demonstrated that the failure to consider his 

claim regarding the convictions for kidnapping and conspiracy to commit 

kidnapping amounted to a fundamental miscarriage of justice. Therefore, 

3As discussed earlier, appellant requested that his trial counsel file 

an appeal and appellant alleged that he believed an appeal had been filed 

when he received a copy of a blank notice of appeal from counsel. 

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Pickering 

we reverse the district court's decision and remand for the district court to 

vacate appellant's convictions for kidnapping and conspiracy to commit 

kidnapping. Accordingly, we 

ORDER the judgment of the district court AFFIRMED in part 

and REVERSED in part and REMANDED in part. 4 

J. 

cc: Eighth Judicial District Court Dept. 20 

Nery A. Kehrt 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

4We have considered all proper person documents filed or received in 

this matter. We conclude that appellant is only entitled to the relief 

described herein. This order constitutes our final disposition of this 

appeal. Any subsequent appeal shall be docketed as a new matter. 

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