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Appellant argues that the district court erred in dismissing his 

petition as procedurally barred without allowing appellant the opportunity 

to oppose the State's motion to dismiss or conducting an evidentiary 

hearing to allow appellant to demonstrate good cause to excuse the 

procedural time bar. Appellant fails to demonstrate he is entitled to relief. 

Appellant has the burden of pleading facts to demonstrate 

good cause in his petition. See State v. Haberstroh, 119 Nev. 173, 181, 69 

P.3d 676, 681 (2003). Appellant stated in his petition that he filed it more 

than one year after entry of the judgment of conviction because the federal 

court had told him to return to state court to exhaust his claims. 

Exhaustion of state remedies in order to seek federal court review is 

insufficient to demonstrate cause to excuse the delay. See Colley v. State, 

105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989). As appellant failed to 

plead facts demonstrating good cause in his petition, the district court did 

not err in dismissing the petition without allowing appellant additional 

opportunities to overcome the procedural bar. 2Therefore, the district 

court did not err in dismissing the petition as procedurally barred without 

conducting an evidentiary hearing. 

Appellant also asserts that the State did not serve him with a 

copy of its motion to dismiss the petition. However, the State's motion 

contained a certificate of service, certifying that the State served appellant 

via the U.S. mail at the address listed on appellant's petition on July 7, 

2011. Accordingly, appellant fails to demonstrate that the State failed to 

properly serve the motion. See NRCP 5(b)(4) ("Proof of service may be 

2The district court granted appellant an extension of time to oppose 

the State's motion to dismiss, yet appellant did not file an opposition. 

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Mt LIM111-1.Z.S1[. 

made by certificate of an attorney or of the attorney's employee."); see also 

NRS 34.780(1) (stating that the Nevada Rules of Civil Procedure apply to 

proceedings for post-conviction petitions for a writ of habeas corpus to the 

extent they are not inconsistent with NRS Chapter 34). 3 

Next, appellant argues that failure to consider the merits of 

his claims would result in a fundamental miscarriage of justice. Appellant 

did not raise this claim before the district court, and therefore, we decline 

to consider this claim in the first instance. See Davis v. State, 107 Nev. 

600, 606, 817 P.2d 1169, 1173 (1991), overruled on other grounds by 

Means v. State, 120 Nev. 1001, 1012-13, 103 P.2d 25, 33 (2004). We 

therefore conclude that the district court did not err in dismissing 

appellant's petition as procedurally barred. Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 

tA—ok 

Douglas 

Saitta 

3 It appears that appellant received the State's motion to dismiss, as 

appellant filed a motion seeking an enlargement of time to oppose the 

State's motion to dismiss. 

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cc: Hon. Valorie J. Vega, District Judge 

Leavitt Law Firm 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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