different from those raised in his previous petitions. 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).
In his petition, appellant claimed that his appellate counsel's
failure to raise certain claims on direct appeal excused any procedural bar.
Appellant failed to demonstrate cause because his claims of ineffective
assistance of appellate counsel were reasonably available to be raised in
his first petition and ineffective-assistance claims that are themselves
procedurally barred cannot establish cause. See Hathaway v. State, 119
Nev. 248, 252-53, 71 P.3d 503, 506 (2003).
Appellant also claimed that he suffered from 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 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).
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10) 19474 ce
Finally, appellant failed to overcome the presumption of
prejudice to the State. Therefore, the district court did not err in denying
the petition. Accordingly, we
ORDER the judgment of the district court AFFIRMED. 3
Pitt uyi '
J.
424 °)ICI••••91Ssra'at
Parraguirre
J.
J.
Saitta
cc: Hon. Jessie Elizabeth Walsh, District Judge
Jeffrey Lynn Franklin
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 In
light of this disposition, we deny appellant's motion for
appointment of counsel.
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(0) 1947A