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).
Appellant claimed that failure to raise certain claims in his
previous petition was caused by ineffective assistance of his trial and
appellate counsel. Appellant's claim lacks merit as a procedurally barred
claim of ineffective assistance of counsel cannot constitute cause for
additional claims of ineffective assistance of counsel. See Hathaway v.
State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). Moreover, appellant
failed to explain why he could not have raised his current claims of
ineffective assistance of trial and appellate counsel in his first petition.
See id. at 253, 71 P.3d at 506.
Next, appellant claimed that failure to consider his claims on
the merits would be a fundamental miscarriage of justice. 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 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, 523 U.S. at 559 (quoting Schlup v. Delo,
2 Martin v. State, Docket No. 58437 (Order of Affirmance, October 5,
2011).
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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). 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.
J.
Hardesty
Parraguirre
J.
Cherry
cc: Hon. Michelle Leavitt, District Judge
Donald Dee Martin
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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