First, appellant claimed he had cause for the delay because he
had to rely on inmate law clerks and was not familiar with the law. These
were insufficient reasons to demonstrate cause for the delay. See
generally Phelps v. Dir., Nev. Dep't of Prisons, 104 Nev. 656, 660, 764 P.2d
1303, 1306 (1988) (holding that petitioner's claim of organic brain damage,
borderline mental retardation, and reliance on assistance of inmate law
clerk unschooled in the law did not constitute good cause for the filing of a
successive post-conviction petition).
Second, appellant claimed that he had good cause because of
ineffective assistance of counsel. A procedurally barred claim of ineffective
assistance of trial counsel cannot constitute cause for additional claims of
ineffective assistance of counsel, and appellant provided no reason why he
could not raise his claims of ineffective assistance of counsel in a timely
manner. See Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506
(2003).
Third, appellant claimed he had good cause because the
Nevada Department of Corrections did not provide him access to the law
library or to inmate law clerks for the first 30 days of his incarceration,
which he asserted harmed his ability to litigate this matter. As noted by
appellant, he has had access to the prison law library and law clerks for
approximately two years since his initial 30 days in prison. Therefore, any
claims stemming from the alleged lack of access to the library or clerks
were reasonably available to be raised at an earlier time and appellant did
not attempt to explain the entire delay. See id.
Next, appellant claimed it would be a fundamental
miscarriage of justice to impose the procedural bars on his petition. In
order to demonstrate a fundamental miscarriage of justice, a petitioner
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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 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. 3
Gibbons
Saitta
3 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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cc: Hon. Kathleen E. Delaney, District Judge
Michael George Zanfino
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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