the procedural defects because he was not appointed counsel in the first
post-conviction proceedings. We conclude that this argument lacks merit.
The appointment of counsel was discretionary in the first post-conviction
proceedings, see NRS 34.750(1), and appellant has failed to demonstrate
an abuse of discretion. Further, this court has recently held that Martinez
does not apply to Nevada's statutory post-conviction procedures. See
Brown v. McDaniel, Nev. , P.3d (Adv. Op. No. 60, August 7,
2014). Thus, the failure to appoint post-conviction counsel and the
decision in Martinez would not provide good cause for this late and
successive petition.
Next, appellant argues that his appellate counsel's failure to
raise certain claims on direct appeal constitutes good cause to excuse the
procedural defects. This argument lacks merit, as a claim of ineffective
assistance that is itself procedurally barred cannot constitute good cause
to excuse a procedural defect. Hathaway v. State, 119 Nev. 248, 252, 71
P.3d 503, 506 (2003).
Finally, appellant argues that he was actually innocent and
the failure to consider his underlying claims on the merits would result in
a fundamental miscarriage of justice. 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). The district court held an evidentiary hearing on
appellant's claim of actual innocence and six witnesses testified that they
never saw any signs of abuse, the victims did not appear to be scared of
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appellant, and the victims never told them about any abuse. The district
court found that this evidence was essentially presented to the jury
through other witnesses and did not demonstrate actual innocence. We
conclude that the district court did not err in denying this claim because
appellant 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 also Pellegrini, 117 Nev. at 887, 34 P.3d at 537; Mazzan,
112 Nev. at 842, 921 P.2d at 922. We therefore conclude that the district
court did not err in denying appellant's petition. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Aou., n
gEgAi J.
Hardesty
?gstrA) J.
Douglas
J.
Cherry
cc: Hon. David B. Barker, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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