appellant's petition was successive because he had previously litigated two
post-conviction petitions for a writ of habeas corpus, and it constituted an
abuse of the writ as he raised claims new and different from those raised
in his previous petition. 3 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). Good cause must be an impediment external to the
defense. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003).
Moreover, because the State specifically pleaded laches, appellant was
required to overcome the rebuttable presumption of prejudice. NRS
34.800(2).
Appellant first claimed that the law library was inadequate.
Appellant failed to demonstrate that an impediment external to the
defense excused his procedural defects as appellant's own statements
indicate that the Department has provided adequate access to legal
research materials.
Next, appellant claimed that the Kazalyn 4 instruction was
unconstitutional and that his prior attorneys (trial, appellate and post-
conviction) should have raised the claim earlier. A claim challenging the
Kazalyn instruction was available to his post-conviction counsel because
...continued
1998 decision on direct appeal. See Sullivan v. State, 120 Nev. 537, 541,
96 P.3d 761, 764 (2004).
3 Leslie,118 Nev. 773, 59 P.3d 440; Leslie v. State, Docket No. 52954
(Order of Affirmance, October 21, 2009).
4Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992).
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the Byford5 decision altering the premeditation and deliberation jury
instruction was entered on February 28, 2000, and the district court did
not reach a decision on his first, timely petition until July 2000. 6 In order
for a claim of ineffective assistance to constitute good cause, the claim of
ineffective assistance of counsel must itself not be procedurally barred and
the petitioner must demonstrate that the ineffective assistance of counsel
prevented him from raising the claim in a timely fashion. Hathaway, 119
Nev. at 252, 71 P.3d at 506. Appellant's claim of ineffective assistance of
post-conviction counsel is procedurally barred as he failed to raise it
within one year from the decision on his first post-conviction petition and
he did not demonstrate good cause for his failure to do so. Moreover,
appellant cannot demonstrate that his post-conviction counsel was
ineffective because his conviction was final before Byford was decided, and
thus, the court did not err in giving the Kazalyn instruction. See Nika v.
State, 124 Nev. 1272, 1286-89, 198 P.3d 839, 849-51 (2008) (recognizing
that Byford constituted a change in state law that had no retroactive
application to convictions that were final when Byford was decided).
Further, because the murder was committed during the course of a
robbery and appellant was convicted of robbery, any issues relating to the
jury instructions for premeditation and deliberation would be rendered
5 Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000).
6A claim based on Byford was not available to his trial and appellate
counsel. Appellant was under a sentence of death when he litigated his
first post-conviction petition and was thus entitled to the appointment of
counsel and the effective assistance of that counsel. NRS 34.820(1);
Crump v. Warden, 113 Nev. 293, 934 P.2d 247 (1997); McKague v.
Warden, 112 Nev. 159, 912 P.2d 255 (1996).
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- it
harmless as his actions met the definition of first-degree murder. Payne
v. State, 81 Nev. 503, 505-06, 406 P.2d 922, 924 (1965). Finally, appellant
failed to overcome the presumption of prejudice. Therefore, we conclude
that the district court did not err in denying the petition as procedurally
barred (untimely and successive), and barred by laches. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Iliaslesty
H 0.44A
Y
Parraguirre
cc: Hon. Stefany Miley, District Judge
Wilbert Emory Leslie
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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it 7