34.810(1)(b)(2); NRS 34.810(2). Accordingly, 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). A petitioner may be entitled to review of defaulted claims if
failure to review the claims would result in a fundamental miscarriage of
justice. Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996).
In order to demonstrate a fundamental miscarriage of justice, a petitioner
must make a colorable showing of actual innocence of the crime.
Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
Appellant did not attempt to demonstrate good cause to excuse
the procedural defects. Rather, appellant argued that he was actually
innocent of the offense of stop required on the signal of a police officer. In
support of this assertion, he claimed that he had newly discovered
evidence in the form of voluntary statements of police officers and
preliminary hearing testimony. To the extent that appellant relied on
preliminary hearing testimony, the transcripts of the preliminary hearing
could not be considered new evidence, as they were available as part of the
record on appeal since appellant's conviction. See House v. Bell, 547 U.S.
518, 537 (2006) (opining that actual innocence exception requires new
evidence demonstrating innocence); Schlup v. Delo, 513 U.S. 298, 316
. . continued
petition on May 17, 2013, but did not appeal from the denial of that
petition,
SUPREME COURT
OF
NEVADA
2
(D) 1947A segr.
(1995) (same). Appellant did not demonstrate actual innocence because
his claim involved legal error and 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 (quoting Schlup,
513 U.S. at 327); see also Pellegrini, 117 Nev. at 887, 34 P.3d at 537;
Mazzan, 112 Nev. at 842, 921 P.2d at 922. Appellant also failed to
overcome the presumption of prejudice to the State. We therefore
conclude that the district court did not err in denying appellant's petition
as procedurally barred, and we
ORDER the judgment of the district court AFFIRMED. 3
Poeu clip J.
Pickering
J.
Saitta
3 We decline to consider the district court's decision to designate
appellant a vexatious litigant and to enter a restrictive order. This
decision should be challenged in an original petition for a writ of
mandamus filed in this court. See Peck v. Grouser, 129 Nev. „ 295
P.3d 586, 588 (2013).
SUPREME COURT
OF
NEVADA
3
(0) 1947A (946P147,
cc: Hon. James M. Bixler, District Judge
Larry Gene Tilcock
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A