                              "[Al petition that challenges the validity of a judgment or
                  sentence must be filed within 1 year after entry of the judgment of
                  conviction or, if an appeal has been taken from the judgment, within 1
                  year after the Supreme Court issues its remittitur." NRS 34.726(1). Doyle
                  filed his second post-conviction petition for a writ of habeas corpus in the
                  district court twelve years after this court issued its remittitur on his
                  direct appeal. Therefore, the petition was untimely. 2
                              In order to overcome the delay in filing his second petition,
                  Doyle had the burden of demonstrating: (a) good cause for his failure to
                  present the claims in a timely manner and (b) actual prejudice.    See NRS
                  34.726(1). Good cause may be demonstrated by showing ineffective
                  assistance of counsel or an impediment external to the defense such as a
                  factual or legal basis for a claim that was not reasonably available or
                  interference by officials making compliance impracticable.     Hathaway v.
                  State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003). However, good-cause
                  arguments must be made in a timely fashion and are also subject to the
                  procedural default rules.   Id.   "Actual prejudice requires [petitioner] to
                  show not merely that the errors at his trial created a possibility of
                  prejudice, but that they worked to his            actual and substantial
                  disadvantage, infecting his entire trial with error of constitutional
                  dimensions."   State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225,


                         2Although the district court did not dismiss Doyle's petition under
                  NRS 34.810, most of his claims could have been raised in a prior
                  proceeding to secure relief or do not allege new or different grounds for
                  relief. Therefore, those• claims are successive and also barred by NRS
                  34.810.




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                       232, 112 P.3d 1070, 1075 (2005) (internal quotations marks omitted).
                       Where, as here, the State affirmatively pleaded laches, a petition may be
                       dismissed if the delay in filing the petition prejudices the State in its
                       ability to retry the petitioner "unless the petitioner demonstrates that a
                       fundamental miscarriage of justice has occurred." NRS 34.800(1)(b). A
                       period exceeding five years between the judgment or a decision on direct
                       appeal and the filing of a petition creates a rebuttable presumption of
                       prejudice to the State. NRS 34.800(2). In order to be entitled to an
                       evidentiary hearing, Doyle must raise claims that are supported by
                       specific factual allegations that are not belied by the record and, if true,
                       would entitle him to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686
                       P.2d 222, 225 (1984). Because the specific factual allegations contained in
                       Doyle's petition would not have entitled him to relief on any of his claims
                       the district court did not err by denying him an evidentiary hearing.
                       Good-cause arguments
                                   First, Doyle contends that the district court erred by denying
                       his petition because our decision on his Batson 3 claim on direct appeal,
                       Doyle v. State, 112 Nev. 879, 889 & n.2, 921 P.2d 901, 908 & n.2 (1996),
                       overruled in part by Kaczmarek v. State, 120 Nev. 314, 91 P.3d 16 (2004),
                       was contrary to clearly established federal constitutional law and amounts
                       to structural error. The fact that a Batson error amounts to structural
                       error, however, does not relieve Doyle of his obligation to demonstrate
                       good cause and prejudice.     See, e.g., Thornburg v. Mullin, 422 F.3d 1113,
                       1141 (10th Cir. 2005) ("[E]ven structural errors are subject to state

                             3 Batson   v. Kentucky, 476 U.S. 79 (1986).




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                  procedural bars."). This court is prohibited by statute from addressing the
                  merits of Doyle's Batson claim unless he establishes good cause for his 12-
                  year delay and failure to raise this claim in his first post-conviction
                  petition which was filed in 1997, NRS 34.726(1); NRS 34.810(1)(b), and
                  explains why this claim should not be barred by the doctrine of the law of
                  the case, see generally Arizona v. California, 460 U.S. 605, 618-19 & n.8
                  (1983).
                              The most Doyle did to demonstrate good cause in his petition
                  for a writ of habeas corpus was to make two conclusory allegations in
                  separate sections of his petition that (1) his "conviction and death sentence
                  are invalid under the state and federal constitutional guarantees of . . .
                  effective assistance of counsel . . . because prosecutors excused prospective
                  jurors on the basis of race" and (2) "previous counsel failed to raise
                  substantial constitutional issues during state post-conviction proceedings."
                  Doyle does not specifically allege that post-conviction counsel was
                  ineffective for failing to raise this Batson claim in his first post-conviction
                  petition or identify which substantial constitutional issues he is referring
                  to. Even if he had claimed that post-conviction counsel was ineffective, he
                  would have to demonstrate that counsel's performance was deficient for
                  failing to raise the Batson claim for a third time after it had been
                  previously denied on direct appeal and in a separate petition for
                  rehearing. This would be exceedingly difficult because, at the relevant
                  time, this court's interpretation of the law-of-the-case doctrine indicated
                  that "Mlle supreme court has no power to review its own judgments in the
                  same case, except upon petition for rehearing, in accordance with the rules
                  established for that purpose," State v. Loveless, 62 Nev. 312, 318, 150 P.2d



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                     1015, 1017 (1944) (quoting Wright v. Carson Water Co., 22 Nev. 304, 308,
                     39 P. 872, 874 (1895)). It therefore is unlikely that Doyle would have been
                     able to demonstrate that counsel was deficient for failing to raise this
                     claim in his first petition for a writ of habeas corpus, even if he had raised
                     the alleged ineffective assistance of prior post-conviction counsel in a
                     timely fashion, an issue that is addressed further below. In the absence of
                     any other argument establishing good cause for Doyle's failure to raise
                     this claim in his first petition, 4 he has failed to demonstrate that the
                     district court erred by denying his petition with respect to this claim. 5


                           4 Doyle  cites Bejarano v. State, 122 Nev. 1066, 1074, 146 P.3d 265,
                     271 (2006), and notes that it mentions a narrow exception to the law-of-
                     the-case doctrine, but he did not specifically argue that Bejarano amounts
                     to good cause. To the extent that Doyle's opening appellate brief can be
                     construed as making such an argument, we decline to address that claim
                     in the first instance, see McNelton v. State, 115 Nev. 396, 416, 990 P.2d
                     1263, 1276 (1999), except to observe that the relevant language in
                     Bejarano was based on an earlier decision in Pellegrini v. State, 117 Nev.
                     860, 34 P.3d 519 (2001), and therefore this exception had been available
                     for some time before Doyle filed his second state habeas petition.

                           5 Even   if we were to apply the exception to the law-of-the-case
                     doctrine suggested in Pellegrini and Bejarano and Doyle also overcame the
                     applicable procedural bars, we are not persuaded that he would be entitled
                     to relief. In particular, he has not identified any controlling authority that
                     clearly required the trial court to revisit its denial of a Batson objection at
                     step one with respect to one juror when it subsequently required a neutral
                     explanation under step two for a subsequent objection with regard to
                     another juror. Cf. Higgins v. Cain, 720 F.3d 255, 267 (5th Cir. 2013)
                     (concluding there was a "want of authority" addressing whether trial court
                     had to revisit prior Batson objections that had been rejected based on no
                     prima facie showing of discrimination where later Batson objections
                     regarding other jurors proceeded to step two of Batson analysis); Williams
                     v. Haviland, 394 Fed. Appx. 397 (9th Cir. 2010) (unpublished decision)
                                                                            continued on next page...

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                                     Second, Doyle contends that he was denied his statutory right
                      to post-conviction counsel under NRS 34.820(1)(a) because "[n]o attorney
                      was ever appointed to represent [him] for the purposes of his state post-
                      conviction proceedings." Instead, he contends that his counsel was only
                      appointed pursuant to SCR 250(IV)(H) 6 to investigate whether trial
                      counsel was effective. We conclude that Doyle's claim is belied by the
                      record. According to the district court minutes, Scott L. Bindrup accepted
                      appointment as counsel during a proceeding involving Doyle's first post-
                      conviction petition for writ of habeas corpus and request for the
                      appointment of counsel. Following his appointment, counsel filed a
                      memorandum of points and authorities in support of Doyle's pro se
                      petition. Therefore, Doyle has not demonstrated that he was denied his
                      statutory right to post-conviction counsel and the district court did not err

                      ...continued
                      ("Contrary to Williams's suggestion, Batson's general requirement that the
                      trial court assess 'all relevant circumstances' in deciding whether a
                      defendant has made a prima facie case for discrimination does not
                      'squarely address' the specific question whether a court must reconsider
                      its denial of a Batson motion with regard to one juror if it subsequently
                      finds a prima facie case of discrimination with regard to a different
                      juror."); United States v. Bernal-Benitez, 594 F.3d 1303, 131243 (11th Cir.
                      2010) (observing that court had located no precedent holding that "before
                      ruling on a Batson objection based on race, a trial court has a duty sua
                      sponte to reconsider any ruling it previously may have made on a Batson
                      objection based on the same race"). Accordingly, he has not shown that
                      this court's prior decision on direct appeal was contrary to clearly
                      established and controlling federal law.

                            6 Thisrule was adopted by ADKT 109 on February 20, 1990, and
                      went into effect on June 1, 1990. The provision was later repealed by this
                      court. See Nika v. State, 120 Nev. 600, 606, 97 P.3d 1140, 1145 (2004).




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                    by denying his petition with respect to this claim. Furthermore, even
                    crediting Doyle's claim for purposes of argument, he does not offer good
                    cause to overcome the bar his delay in raising the claim creates.
                                Third, Doyle contends that post-conviction counsel was
                    ineffective for numerous reasons. While post-conviction counsel's
                    ineffectiveness may constitute good cause to raise claims in a successive
                    petition, Crump v. Warden, 113 Nev. 293, 934 P.2d 247 (1997); McKague v.
                    Warden, 112 Nev. 159, 912 P.2d 255 (1996), those claims are subject to
                    NRS 34.726(1), Riker, 121 Nev. at 235, 112 P.3d at 1077; Pellegrini u.
                    State, 117 Nev. 860, 869-78, 34 P.3d 519, 525-31 (2001), and must be
                    raised within a reasonable time after they become available, Hathaway,
                    119 Nev. at 252-53, 71 P.3d at 506.
                                Doyle filed his second post-conviction petition for a writ of
                    habeas corpus in district court more than nine years after remittitur
                    issued on the appeal from his first post-conviction petition. Doyle's only
                    claim explaining this period of delay is that the State's failure to comply
                    with federal court-ordered discovery excuses his delay. Doyle's counsel
                    filed a motion for leave to conduct discovery in federal court, seeking
                    evidence in the possession of the Las Vegas Metropolitan Police
                    Department, North Las Vegas Police Department, and the Clark County
                    District Attorney's Office nine months after remittitur. Doyle does not
                    specifically disclose which documents and information were sought
                    through discovery in federal court, when each of the documents was
                    obtained, or how the documents relate to each of the claims in his
                    successive petition. But there is some indication that these documents
                    were related to an alleged due process violation, see Mazzan v. Warden,



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                  116 Nev. 48, 67, 993 P.2d 25, 37 (2000), and not one of his ineffective-
                  assistance-of-counsel claims. During a hearing on Doyle's petition, he
                  argued that he should not be faulted for waiting for the discovery
                  litigation to be resolved in federal court before filing his successive petition
                  in state court because, if he had proceeded with claims unrelated to the
                  federal discovery litigation in state court, he would have been precluded
                  from bringing additional claims• in a subsequent petition under the
                  procedural default rules because Nevada law requires all claims to be
                  brought in the same petition. While it is true that the procedural default
                  rules apply when a petitioner fails to include an available claim in a prior
                  petition, NRS 34.810(1)(b)(2), a petitioner can still overcome those bars by
                  showing good cause and prejudice, NRS 34.810(3). Doyle did not explain
                  why he could not have raised his claims that were unrelated to the
                  discovery litigation in a timely fashion. If the State's failure to comply
                  with federal court-ordered discovery can establish good cause to overcome
                  the procedural default rules, as Doyle contended, logically this same
                  failure would also provide good cause in a subsequent state petition filed
                  after the resolution of his claims which were unrelated to the discovery
                  litigation. We hold that the federal discovery litigation does not provide
                  good cause for Doyle's delay in raising any claims unrelated to the
                  discovery. And, because Doyle does not explain how his ineffective-
                  assistance-of-counsel claims relate to the discovery litigation, he has not
                  established good cause for his failure to raise these claims within a
                  reasonable amount of time after they became available. Therefore, he is
                  not entitled to relief on any of those claims and the district court did not
                  err by denying his petition with respect to those claims.



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                            Fourth, Doyle contends that the State violated his due process
                rights by withholding impeachment evidence and evidence of quid pro quo
                agreements and coercion involving the State and several witnesses who
                testified against him.    See Mazzan, 116 Nev. at 67, 993 P.2d at 37.
                Withheld evidence can establish good cause to overcome the procedural
                default rules if the petitioner raises the due process claims within a
                reasonable time after discovery of the withheld evidence.    See id.; State v.
                Huebler, 128 Nev., Adv. Op. 19, 275 P.3d 91, 95 n.3 (2012); Hathaway, 119
                Nev. at 254-55, 71 P.3d at 507-08. The claim based on documents Doyle
                contends demonstrate quid pro quo agreements and coercion was not
                raised within a reasonable time because those documents were discovered
                at least seven years before he filed his successive petition. As for the
                alleged impeachment evidence, this document is not dated and Doyle does
                not disclose when he discovered it. Therefore, it is difficult to determine
                whether this claim was raised within a reasonable time after discovery of
                the evidence. Even if both due process claims had been raised within a
                reasonable amount of time after discovery of the withheld evidence, Doyle
                has also failed to demonstrate actual prejudice.   See Mazzan, 116 Nev. at
                67, 993 P.2d at 37 (requiring petitioner to demonstrate that the withheld
                evidence was material to establish actual prejudice). Therefore, he is not
                entitled to relief and the district court did not err by denying his petition
                with respect to these claims.
                            Fifth, Doyle claims that this court's opinion in McConnell v.
                State, 120 Nev. 1043, 1049, 102 P.3d 606, 611 (2004), provides good cause
                for his failure to bring his challenge to the felony aggravating
                circumstance based on first-degree kidnapping in his first post-conviction



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                   petition. Although good cause may be demonstrated by showing an
                   impediment external to the defense such as a factual or legal basis for a
                   claim that was not reasonably available, Doyle did not raise this claim
                   within a reasonable amount of time after this claim became available.     See
                   Hathaway, 119 Nev. at 252-53, 71 P.3d at 506 (good cause arguments
                   must be made in a timely fashion and are also subject to the procedural
                   default rules). Therefore, the district court did not err by denying his
                   petition with respect to this claim.
                               Sixth, Doyle claims that this court's opinion in Byford v. State,
                   116 Nev. 215, 994 P.2d 700 (2000), provides good cause for his failure to
                   bring his instructional-error claim in his first post-conviction petition.
                   This court's decision in Nika, 124 Nev. at 1288-89, 198 P.3d at 850-51,
                   clarifies that the premeditation instruction given—known as the Kazalyn 7
                   instruction—was an accepted instruction until Byford, 116 Nev. at 234-38,
                   994 P.2d at 713-15, announced a change in state law. This change applies
                   to murder convictions that were not final when Byford was decided. Id.
                   Because Doyle's conviction was final when Byford was decided, see Colwell
                   v. State, 118 Nev. 807, 820, 59 P.3d 463, 472 (2002), Byford does not apply
                   to his case and he does not have good cause to raise this claim. 8


                         7 Kazalyn   v. State, 108 Nev. 67, 857 P.2d 578 (1992).

                         8 Doyle also contends that the procedural default rules cannot be
                   applied to bar his successive petition because they are not applied in a
                   consistent manner in violation of the equal protection and due process
                   clauses. This court has rejected similar arguments. Riker, 121 Nev. at
                   235-42, 112 P.3d at 1076-82. Furthermore, Doyle has not demonstrated
                   that this court applies the procedural default rules in a subjectively
                   discretionary fashion. Therefore, this claim lacks merit.



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                 Fundamental-miscarriage-of-justice arguments
                              When a petitioner cannot demonstrate good cause, the district
                 court may nonetheless excuse a procedural bar if petitioner demonstrates
                 that failure to consider the petition would result in a fundamental
                 miscarriage of justice.    Pellegrini, 117 Nev. at 887, 34 P.3d at 537. A
                 fundamental miscarriage of justice requires "a colorable showing" that
                 petitioner is "actually innocent of the crime or is ineligible for the death
                 penalty." Id.
                              Doyle argues he is actually innocent of first-degree murder
                 because he lacked the mens rea to commit the crime. However, "[w]ithout
                 any new evidence of innocence, even the existence of a concededly
                 meritorious constitutional violation is not in itself sufficient to establish a
                 miscarriage of justice that would allow a habeas court to reach the merits
                 of a barred claim." Schlup v. Delo, 513 U.S. 298, 316 (1995). Doyle did not
                 allege that there was insufficient evidence to support his first-degree
                 murder conviction on direct appeal and he has not presented any new
                 evidence indicating that he lacked the mens rea to commit first-degree
                 murder in his successive petition. In fact, Doyle provides little, if any,
                 analysis of the evidence presented at trial in support of this contention.
                 Therefore, he is not entitled to relief on this claim.
                              Doyle also argues that he is ineligible for the death penalty
                 because his felony aggravator is invalid under McConnell, 120 Nev. 1043,
                 102 P.3d 606 (2004), and his mitigation evidence is so strong that no
                 rational juror would have found him death eligible by determining that
                 the remaining aggravating circumstances were not outweighed by the
                 mitigating circumstances. "Where the petitioner has argued that the



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                 procedural default should be ignored because he is actually ineligible for
                 the death penalty, he must show by clear and convincing evidence that,
                 but for a constitutional error, no reasonable juror would have found him
                 death eligible." Pellegrini, 117 Nev. at 887 34 P.3d at 537 (citing Sawyer
                 v. Whitley, 505 U.S. 333, 336 (1992)).
                             Because Doyle's aggravating circumstance for committing
                 murder while he was engaged in the commission of or an attempt to
                 commit any first-degree kidnapping was also the predicate for felony
                 murder, that aggravating circumstance was impermissible under the
                 United States and Nevada constitutions as the jury verdict does not
                 indicate whether felony murder or premeditated and deliberate murder
                 formed the basis for the jury's finding of guilt. See McConnell, 120 Nev. at
                 1069, 102 P.3d at 624; Bejarano v. State, 122 Nev. 1066, 1078, 146 P.3d
                 265, 274 (2006) (applying McConnell retroactively). Therefore, this
                 aggravating circumstance should not have been considered by the jury.
                 Although two aggravating circumstances remain, this court must reweigh
                 the aggravating circumstances against the mitigating circumstances to
                 determine whether Doyle remains death eligible.    See, e.g., Servin v. State,
                 117 Nev. 775, 786, 32 P.3d 1277, 1285 (2001). Doyle argues that this court
                 should also consider his new mitigation evidence in this analysis because
                 in State v. Haberstroh, 119 Nev. 173, 184, 69 P.3d 676, 684 (2003), this
                 court considered the mitigation evidence discovered during a post-
                 conviction evidentiary hearing in its analysis. Doyle is mistaken. As we
                 explained in our order denying the petition for rehearing in that case, "we
                 did not consider mitigating evidence not presented during the trial in
                 concluding that the invalid [aggravator] was not harmless beyond a



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                reasonable doubt." State v. Haberstroh, Docket No. 38600, at 2 n.1 (Order
                Denying Rehearing, August 29, 2003).
                            The first aggravating circumstance found by the jury was that
                the murder was committed by a person under a sentence of imprisonment.
                See NRS 200.033(1). Two and one half years before the murder, Doyle
                pleaded guilty to attempted burglary, was sentenced to three years in
                prison, his sentence was suspended, and he was placed on probation for a
                period not to exceed three years. Sixteen months later, Doyle's probation
                was revoked and he was sentenced to prison. He was released on parole
                on October 19, 1993, three months before the murder.
                            The second aggravating circumstance found by the jury was
                that the murder was committed to avoid or prevent a lawful arrest or to
                effect an escape from custody.    See NRS 200.033(5). This is the most
                serious of the aggravating circumstances found by the jury. The State
                presented evidence that the murder victim threatened to call the police
                and report Doyle and his codefendants for having raped her earlier that
                night at their apartment. According to the State, the victim was
                murdered to prevent her from reporting the incident to the police.
                            We conclude that these aggravating circumstances were not
                outweighed by the mitigating circumstances and that Doyle has not
                demonstrated by clear and convincing evidence that but for the McConnell
                error "no reasonable juror would have found him death eligible."
                Pellegrini, 117 Nev. at 887, 34 P.3d at 537 (citing Sawyer, 505 U.S. at
                336). Therefore, the failure to consider the petition will not result in a
                fundamental miscarriage of justice.




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                             Having considered Doyle's contentions 9 and concluded that he
                is not entitled to relief, we
                             ORDER the judgment of the district court AFFIRMED.H)




                                                           Parraguirre r
                                                                                         J.
                Gibbons -                                  Pickering



                CHERRY, J., with whom SAITTA, J., agrees dissenting:
                             I would reverse the district court's order. This court's failure
                to remedy the structural error raised by Doyle in his direct appeal and
                petition for rehearing was an impediment external to the defense that
                resulted in a manifest injustice. The court should have concluded that the
                district court clearly erred by rejecting Doyle's Batson challenge in our
                decision on direct appeal in 1996 because he demonstrated that it is more
                likely than not that the State struck at least one prospective juror because
                of race. The court erred by concluding that, "after accepting the State's


                      9 Doyle does not make any good cause or prejudice arguments with
                respect to a number of claims in his opening brief. He merely argues that
                the cumulative effect of these errors warrants reversal. Because all of
                these claims are procedurally barred and Doyle did not demonstrate good
                cause with respect to any of his claims, he is not entitled to relief.

                      mThe Honorable Michael L. Douglas, Justice, did not participate in
                the decision of this matter.



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                explanation for the exclusion of [two African-American prospective jurors],
                it was not error for the district court to refuse to require an explanation
                for the exclusion of Ms. Velasquez," the first African-American struck by
                the State after the conclusion of for-cause challenges.   Doyle, 112 Nev. at
                889 n.2, 921 P.2d at 908 n.2. This conclusion was contrary to clearly
                established federal constitutional law.     Batson required the State to
                provide a race-neutral explanation for striking Velasquez after the district
                court found a prima facie case of intentional discrimination.      Batson v.
                Kentucky, 476 U.S. 79, 98 (1986). The State's attempt to strike every
                African American in the venire was certainly sufficient to establish a
                prima facie case of intentional discrimination. The State's failure to
                provide a race-neutral reason was also evidence of discrimination.       See
                Paulin° v. Harrison, 542 F.3d 692, 703 (9th Cir. 2008). Finally, there was
                no circumstantial evidence in the record that explained why Velasquez
                was struck and other similarly situated veniremembers were not struck.
                Five of the twelve prospective jurors who were not struck and remained on
                the jury, like Velasquez, had contact with the criminal justice system or a
                close relative who had contact with the criminal justice system, as did two
                of the three alternate jurors, one of whom served as a juror during the
                penalty phase. This kind of disparate treatment is evidence of purposeful
                discrimination. See Ford v. State, 122 Nev. 398, 405, 132 P.3d 574, 578-79
                (2006). "Discriminatory jury selection is particularly concerning in capital
                cases [such as this] where each juror has the power to decide whether the
                defendant is deserving of the ultimate penalty, death."     Conner u. State,
                130 Nev., Adv. Op. 49, 327 P.3d 503, 507 (2014). The failure of this court
                to remedy the Batson error on direct appeal resulted in a manifest



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                   injustice.   See United States v. Brown, 352 F.3d 654, 664 (2d Cir. 2003)
                   ("There is. . . usually little question that any Batson error we find would
                   affect a defendant's substantial rights the violation of which would result
                   in manifest injustice." (internal quotation marks omitted)).
                                Additionally, we have the power to disregard the law-of-the-
                   case doctrine to correct a manifest injustice.   Bejarano v. State, 122 Nev.
                   1066, 1074, 146 P.3d 265, 271 (2006) ("[T]he doctrine of the law of the case
                   is not absolute, and we have the discretion to revisit the wisdom of our
                   legal conclusions if we determine that such action is warranted."); Arizona
                   v. California, 460 U.S. 605, 618 n.8 (1983) ("Under law of the case
                   doctrine, as now most commonly understood, it is not improper for a court
                   to depart from a prior holding if convinced that it is clearly erroneous and
                   would work a manifest injustice."), decision supplemented, 466 U.S. 144
                   (1984); see also Tien Fu Hsu v. Cnty. of Clark, 123 Nev. 625, 630, 632, 173
                   P.3d 724, 729, 730 (2007) (suggesting an exception to the law-of-the-case
                   doctrine when "there has been an intervening change in controlling law").
                                Furthermore, Doyle can establish good cause for his failure to
                   raise this claim in his first post-conviction petition for a writ of habeas
                   corpus because there has been an intervening change in this court's
                   interpretation of the law-of-the-case doctrine between the time he filed his
                   first post-conviction petition for a writ of habeas corpus and his second
                   post-conviction petition.   Compare Sherman Gardens Co. v. Longley, 87
                   Nev. 558, 563, 491 P.2d 48, 52 (1971); State v. Loveless, 62 Nev. 312, 318,
                   150 P.2d 1015, 1017 (1944); Wright v. Carson Water Co., 22 Nev. 304, 308,
                   39 P. 872, 874 (1895)), with Hsu, 123 Nev. at 630, 632, 173 P.3d at 729-30;
                   Befarano, 122 Nev. at 1074, 146 P.3d at 271. At the time Doyle filed his



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                 first post-conviction petition, this court had declared that "[t]he supreme
                 court has no power to review its own judgments in the same case, except
                 upon petition for rehearing, in accordance with the rules established for
                 [that] purpose."   Sherman Gardens Co., 87 Nev. at 563, 491 P.2d at 52;
                 Loveless, 62 Nev. at 318, 150 P.2d at 1017. Since Doyle filed his first post-
                 conviction petition, however, this court has recognized the narrow
                 exceptions discussed above. Thus, Doyle has good cause for raising this
                 claim in his second post-conviction petition because the legal basis for his
                 claim was not reasonably available in 1997 when he filed his first post-
                 conviction petition for relief. See Hathaway v. State, 119 Nev. 248, 252-53,
                 71 P.3d 503, 506 (2003).
                             In my opinion, Doyle need not establish actual prejudice. See,
                 e.g., Owens v. United States,     483 F.3d•48, 64 (1st Cir. 2007) ("[A]
                 defendant who is seeking to excuse a procedurally defaulted claim of
                 structural error need not establish actual prejudice."); see also Williams v.
                 Woodford, 396 F.3d 1059, 1069 (9th Cir. 2005) (Rawlinson, J., dissenting).
                 But even if such a showing is required, I believe that the structural error
                 is sufficient. A structural defect, such as the one which occurred in this
                 case, affects the framework within which the trial proceeds and,
                 lw]ithout these basic protections, a criminal trial cannot reliably serve its
                 function as a vehicle for determination of guilt or innocence, and no
                 criminal punishment may be regarded as fundamentally fair." Arizona u.
                 Fulminante, 499 U.S. 279, 310 (1991) (quoting Rose v. Clark, 478 U.S. 570,
                 577-578 (1986)). Consequently, Doyle can demonstrate that the Batson
                 error worked "to his actual and substantial disadvantage, infecting his
                 entire trial with error of constitutional dimensions."       State v. Eighth



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                   Judicial Dist. Court (Riker), 121 Nev. 225, 232, 112 P.3d 1070, 1075
                   (internal quotations omitted). For these reasons, I would conclude that
                   the district court erred by denying Doyle's petition as to the Batson claim.



                                                                                              J.




                   cc:   Hon. Jennifer P. Togliatti, District Judge
                         Federal Public Defender/Las Vegas
                         Attorney General/Carson City
                         Clark County District Attorney
                         Eighth District Court Clerk
                         Antonio Lavon Doyle




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