ineffective was itself procedurally barred. Hathaway v. State, 119 Nev.
248, 252-53, 71 P.3d 503, 506 (2003). Further, appellant's reliance upon
Martinez was misplaced as Martinez relates to federal procedural bars and
not state procedural bars. Also, we note that Martinez involves ineffective
assistance of post-conviction counsel and not ineffective assistance of trial
counsel. Therefore, the district court did not err in denying this claim.
Next, appellant claimed that Missouri v. Frye, 566 U.S.
132 S. Ct. 1399 (2012), provided good cause because trial counsel was
ineffective in advising him to accept a plea offer from the State.
Appellant's good-cause argument was without merit because this claim
was always available and he failed to demonstrate why he waited nearly
three years to raise it. Further, his case was final when Frye was decided,
and he failed to demonstrate that the case would apply retroactively to
him. Even if Frye announced new rules of constitutional law, he failed to
allege that he met either exception to the general principle that such rules
do not apply retroactively to cases which were already final when the new
rules were announced. See Colwell v. State, 118 Nev. 807, 816-17, 59 P.3d
463, 469-70 (2002). Therefore, the district court did not err in denying this
claim.
Finally, appellant claimed that new evidence demonstrated
that he was actually innocent of burglary. Appellant did not demonstrate
actual innocence because he failed to show that "it is more likely than not
that no reasonable juror would have convicted him in light of. . . new
evidence." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini v. State, 117
Nev. 860, 887, 34 P.3d 519, 537 (2001); Mazzan v. Warden, 112 Nev. 838,
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842, 921 P.2d 920, 922 (1996). We therefore conclude that the district
court did not err in denying appellant's petition, and we
ORDER the judgment of the district court AFFIRMED. 2
J.
Hardesty
J.
Parraguirre
J.
cc: Hon. Jennifer P. Togliatti, District Judge
John Lee Rush
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2 We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
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II