Rush (John) v. State

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, SUPREME COURT OF NEVADA 2 (0) 1947A 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. SUPREME COURT OF NEVADA 3 (0) 1947A 49ge II