34.810(1)(b)(2); NRS 34.810(2). Appellant's petition was procedurally
barred absent a demonstration of good cause and actual prejudice. See
NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3).
First, appellant claimed that this court's decision in Nika v.
State, 124 Nev. 1272, 198 P.3d 839 (2008), provided good cause to raise his
claim that he received a flawed jury instruction on the elements of first-
degree murder because the jury was given the Kazalyn instruction on
premeditation. Kazalyn v. State, 108 Nev. 67, 75-76, 825 P.2d 578, 583-84
(1992), receded from by Byford v. State, 116 Nev. 215, 235, 994 P.2d 700,
713-14 (2000). Even assuming Nika provided good cause when that
decision was issued, appellant failed to excuse the entire delay because he
waited approximately four years from the Nika decision before he filed
this petition. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506
(2003). Further, appellant failed to demonstrate actual prejudice. This
court concluded on direct appeal that there was sufficient evidence for
appellant's murder conviction under the felony-murder rule. Garner, 116
Nev. at 782, 6 P.3d at 1021. Therefore, appellant cannot demonstrate
prejudice related to the premeditation instruction.
Second, appellant claimed that the prison's law library was
inadequate and the inadequacies caused the delay in raising his current
claims. Appellant asserted he has been actively litigating his case in
federal court and has previously litigated two post-conviction petitions for
a writ of habeas corpus in Nevada state court. Appellant's prior petitions
indicate adequate access to the prison library, and thus he failed to
demonstrate official interference caused him to be unable to comply with
the procedural bars. See Hathaway, 119 Nev. at 252, 71 P.3d at 506.
Moreover, appellant failed to demonstrate that inadequate law libraries or
SUPREME COURT
OF
NEVADA
2
(0) 1947A
inadequate assistance from legally trained persons caused a lack of
meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817, 828
(1977), limited by Lewis v. Casey, 518 U.S. 343 (1996). Therefore, the
district court did not err in concluding that appellant failed to overcome
the procedural bars.
Next, appellant claimed the procedural bars should not apply
because he is actually innocent. In order to demonstrate a fundamental
miscarriage of justice, a petitioner must make a colorable showing of
actual innocence—factual innocence, not legal innocence. Pellegrini v.
State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001); Calderon v. Thompson,
523 U.S. 538, 559 (1998). Appellant did not demonstrate actual innocence
as all of his claims involved legal innocence, and therefore, 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, 523 U.S. at 559
(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini, 117
Nev. at 887, 34 P.3d at 537; Mazzan v. Warden, 112 Nev. 838, 842, 921
P.2d 920, 922 (1996). Therefore, the district court did not err in denying
the petition as procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
C. J.
J.
Saitta
3
cc: Hon. Michelle Leavitt, District Judge
Tyrone Lafayette Garner
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A