different from those raised in his previous petition. 2 See NRS
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). Moreover, because the
State specifically pleaded laches, appellant was required to overcome the
rebuttable presumption of prejudice. NRS 34.800(2).
Appellant claimed that his procedural defects could be
explained by a mental relapse that occurred in May 2003 and lasted until
April 2012. Appellant claimed that he was not capable of understanding
post-conviction procedures during this time period. Appellant failed to
demonstrate good cause. Appellant litigated a motion for a new trial, a
motion to withdraw a guilty plea, and a post-conviction petition for a writ
of habeas corpus during this time period. Appellant failed to demonstrate
that the claims in the instant petition were not reasonably available to be
raised in a timely petition. See Hathaway v. State, 119 Nev. 248, 252, 71
P.3d 503, 506 (2003). To the extent that appellant claimed that he was
actually innocent and that this should overcome his procedural defects,
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
2 Harris
v. State, Docket No. 53196 (Order of Affirmance, October 21,
2009). Appellant also litigated a motion for a new trial and a motion to
withdraw guilty plea. Harris v. State, Docket No. 50285 (Order of
Affirmance, April 25, 2008).
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also Pellearini v. State. 117 Nev. 860, 887, 34 P.3d 519, 537 (2001);
Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). We
therefore conclude that the district court did not err in denying appellant's
petition as procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED. 3
Hardesty
Parraguirre
019A
Cherry
cc: Hon. Stefany Miley, District Judge
Sammy Marvin Harris
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 We deny the proper person motion to stay this appeal.
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