SUPREME COURT 

OF 

NEVADA 

IC0-1170 tO) 1947A 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

GARY SHEPARD, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 68699 

FILED 

APR 1 4 2016 

TRACE K. LINDFMAN 

CLERK OF SUPREME COURT 

BY 

"---S4121 CEPUTY CLE 17.--

ORDER OF AFFIRMANCE 

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

appellant Gary Shepard's postconviction petition for a writ of habeas 

corpus. Second Judicial District Court, Washoe County; Scott N. 

Freeman, Judge. 

Shepard filed his petition April 24, 2015, more than 12 years 

after remittitur issued from his direct appeal on October 8, 2002. Shepard 

v. State, Docket No. 38308 (Order of Affirmance, September 10, 2002). 

Thus, the petition was untimely. See NRS 34.726. The petition was also 

successive because Shepard had previously sought postconviction relief' 

and constituted an abuse of the writ to the extent it raised a new claim. 

See NRS 34.810. Thus, Shepard's petition was procedurally barred absent 

a demonstration of good cause and prejudice. See NRS 34.726(1); NRS 

34.810(3). 

Shepard argues that the district court erred by applying the 

procedural bars for two reasons. First, he asserts that he is actually 

innocent of first-degree murder. See Lisle v. State, 131 Nev., Adv. Op. 39, 

351 P.3d 725, 729-30 (2015) (recognizing that a district court may reach 

'Shepard v. State, Docket No. 45481 (Order of Affirmance, Nov. 8, 

2006). 
the merits of a procedurally defaulted claim if a petitioner demonstrates 

actual innocence). We disagree because Shepard failed to allege sufficient 

facts to constitute actual innocence. See Mitchell v. State, 122 Nev. 1269, 

1273-74, 149 P.3d 33, 36 (2006) ("Actual innocence means factual 

innocence, not mere legal insufficiency." (internal quotation marks and 

alterations omitted)); see also Rozzelle v. Sec'y, Florida Dep't of Corr., 672 

F.3d 1000, 1016 (11th Cir. 2012) (explaining that the actual innocence 

exception contemplates the "extremely rare" cases where the State 

convicted an innocent man, not "run of the mill" cases where the petitioner 

argues that he is guilty of a lesser offense than that for which he was 

convicted). 2Second, Shepard asserts that Martinez v. Ryan, 566 U.S. 

132 S. Ct. 1309 (2012), and Ha Van Nguyen v. Curry, 736 F.3d 1287, 1289 

(9th Cir. 2013), constitute good cause to excuse the procedural bars. We 

disagree because these holdings do not apply to Nevada's postconviction 

procedures. Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 870 

(2014). Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 3 

Gibbons 

2Although the district court's order does not address Shepard's 

actual-innocence argument, we conclude that no relief is warranted 

because the claim clearly lacks merit. 

3We also conclude that the district court did not abuse its discretion 

by denying Shepard's motion to appoint counsel. See NRS 34.750. 

SUPREME COURT 

OF 

NEVADA 

2 

(rn 1947A 
SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

CHERRY, J., dissenting: 

I would extend the equitable rule recognized in Martinez to 

this case because appellant was convicted of murder and is facing a severe 

sentence. See Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 

875 (2014) (Cherry, J., dissenting). Accordingly, I would reverse and 

remand for the district court to determine whether appellant can 

demonstrate a substantial underlying ineffective-assistance-of-counsel 

claim that was omitted due to the ineffective assistance of postconviction 

counsel. 

Cherry 9 

cc: Hon. Scott N. Freeman, District Judge 

Gary Shepard 

Attorney General/Carson City 

Washoe County District Attorney 

Washoe District Court Clerk 

3