                NRS 34.726(1). To the extent that the petition raised the same claims
                that were raised in prior petitions, the petition was successive. NRS
                34.810(2). The petition was therefore procedurally barred absent a
                demonstration of good cause and prejudice. NRS 34.726(1); NRS
                34.810(1)(b), (3).
                             As cause to overcome the procedural default rules, Wilson
                contends that: (1) his guilty plea was invalid as it was premised on an
                understanding of first-degree murder that was held invalid by Byford v.
                State, 116 Nev. 215, 994 P.2d 700 (2000); (2) his prior counsel were
                ineffective; and (3) the inconsistent and discretionary application of
                procedural bars prohibits the use of procedural bars to deny him relief.
                             Validity of guilty plea
                             Wilson argues that his guilty plea was invalid because it was
                premised on an understanding of the elements of first-degree murder as
                described by the Kazalyn instruction,' which this court held was erroneous
                under Byford, 116 Nev. 215, 994 P.2d 700. He asserts that the Ninth
                Circuit Court of Appeals' decision in Polk u. Sandoval, 503 F.3d 903 (9th
                Cir. 2007), provided a basis for this court to revisit this claim.
                             In Byford,    we disapproved of the          Kazalyn    instruction
                regarding the mens rea required for a first-degree murder conviction
                based on willful, deliberate, and premeditated murder, and provided the
                district courts with instructions to use in the future.    Byford, 116 Nev. at
                233-37, 994 P.2d at 712-15. In Nika v. State, 124 Nev. 1272, 1301, 198
                P.3d 839, 859 (2008), we concluded that Byford does not apply to cases
                that were final when it was decided. Wilson's conviction was final roughly
                17 years before Byford was decided and therefore Byford does not apply.

                      i-Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992), prospectively
                modified by Byford, 116 Nev. at 236-37, 994 P.2d at 714.
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                            Wilson acknowledges Nika but argues that the decision
                ignores the constitutional vagueness concerns attendant to the Kazalyn
                instruction and fails to determine whether             Byford   should apply
                retroactively as a substantive rule of criminal law. He asserts that this
                court should overrule Nika and adopt the Ninth Circuit's analysis in Polk.
                Neither argument warrants relief Until Byford, this court consistently
                upheld the Kazalyn instruction and rejected constitutional challenges
                similar to this one. Byford did not alter the law in effect when Wilson's
                conviction became final; rather, it changed the law prospectively. And
                because that change concerned a matter of state law, the Byford decision
                did not implicate federal constitutional concerns. Further, the Ninth
                Circuit's recent decision in Babb v. Lozowsky, 719 F.3d 1019, 1029-30 (9th
                Cir. 2013), cert. denied, U .S. , 134 S. Ct. 526 (2013), disapproved of
                Polk, and noted its effective overruling by Nika.        Accordingly, Wilson
                cannot demonstrate that a continued adherence to the prior ruling would
                work a manifest injustice in this case.
                            Ineffective assistance of prior counsel
                            Wilson contends that the district court erred in denying his
                petition as procedurally barred because the ineffective assistance of prior
                counsel provided him with good cause to excuse the procedural bars. He
                asserts that his appellate and post-conviction counsel failed to challenge
                the definition of premeditation. We disagree. Wilson failed to explain how
                appellate and post-conviction counsels' alleged deficiencies precluded him
                from filing his fourth petition until over 25 years after the resolution of his
                direct appeal and over 9 years after the order affirming the district court's
                denial of his first post-conviction petition.   See Hathaway v. State, 119
                Nev. 248, 252-53, 71 P.3d 503, 506 (2003) ("Irk constitute adequate cause,
                the ineffective assistance of counsel claim itself must not be procedurally
SUPREME Count   defaulted."); see also Edward v. Carpenter, 529 U.S. 446, 452-53 (2000)
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                (concluding that procedurally defaulted claim of ineffective assistance of
                counsel cannot serve as cause for another procedurally defaulted claim).
                To the extent Wilson contends that any procedural default should be
                excused due to second and third post-conviction counsel's ineffective
                assistance, he was not entitled to the effective assistance of second and
                third post-conviction counsel. See Crump v. Warden, 113 Nev. 293, 303,
                934 P.2d 247, 253 (1997) (stating that "petitioner who has counsel
                appointed by statutory mandate is entitled to the effective assistance of
                that counsel"); NRS 34.820(1) (requiring appointment of counsel to
                represent capital petitioner on first petition). Therefore, counsel's
                ineffectiveness, if any, did not excuse the procedural default.
                            Inconsistent application of procedural bars
                            Wilson argues that the district court erred by relying upon
                procedural-default rules because this court applies them inconsistently
                and in its discretion. We have repeatedly rejected this argument, see, e.g.,
                State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 236, 112 P.3d
                1070, 1077 (2005); Pellegrini v. State, 117 Nev. 860, 886, 34 P.3d 519, 536
                (2001), and reject it here as well.
                Fundamental miscarriage of justice
                            When a petitioner cannot demonstrate good cause, the district
                court may nevertheless excuse a procedural bar if the petitioner
                demonstrates that failing 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 the petitioner "is actually innocent of the crime or is ineligible for the
                death penalty." Id. When claiming a fundamental miscarriage based on
                ineligibility for the death penalty, the petitioner "must show by clear and
                convincing evidence that, but for a constitutional error, no reasonable
SUPREME COURT   juror would have found him death eligible." Id.
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                            Wilson asserts that he is actually innocent of the death
                penalty. He contends that the felony aggravating circumstances are
                invalid under McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004), and
                the pecuniary-gain aggravating circumstance is improperly based on the
                same facts as one of the felony aggravating circumstances (robbery) in
                violation of Lane v. State, 114 Nev. 299, 956 P.2d 88 (1998). He asserts
                that there was a reasonable probability that he would not have been
                sentenced to death absent these aggravating circumstances.
                            We conclude that Wilson is not entitled to relief for two
                reasons. First, Wilson did not raise a claim of actual innocence related to
                the penalty phase of trial in his petition below. Accordingly, we will not
                address this argument on appeal. See Davis v. State, 107 Nev. 600, 606,
                                                                         •
                817 P.2d 1169, 1173 (1991) (noting that this court need not consider
                arguments raised on appeal that were not presented in the district court
                in the first instance), overruled on other grounds by Means v. State, 120
                Nev. 1001, 103 P.3d 25 (2004). Second, Wilson raised this argument in his
                third post-conviction petition and this court concluded that it was without
                merit.   Wilson IV, 127 Nev. at n.3, 267 P.3d at 61-62, 63 n.3; see
                Wickliffe v. Sunrise Hosp., Inc.,   104 Nev. 777, 780, 766 P.2d 1322, 1324
                (1988) ("When an appellate court states a principle or rule of law
                necessary to a decision, the principle or rule becomes the law of the case
                and must be followed throughout its subsequent progress, both in the
                lower court and upon subsequent appeal."). While this court has the
                discretion to "revisit the wisdom of its legal conclusions when it
                determines that further discussion is warranted," Pellegrini, 117 Nev. at
                885, 34 P.3d at 535-36, and may 'depart from [its] prior holdings only
                where [it] determine[s] that they are so clearly erroneous that continued
                adherence to them would work a manifest injustice,' Tien Fu Hsu v. Cnty.
SUPREME COURT   of Clark, 123 Nev. 625, 631, 173 P.3d 724, 729 (2007) (quoting Clem v.
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                State, 119 Nev. 615, 620, 81 P.3d 521, 525 (2003)), Wilson has not cited
                any authority decided since the denial of his last petition that necessitates
                a departure from our prior holding
                              Having considered Wilson's arguments and concluded that no
                relief is warranted, we
                              ORDER the judgment of the district court AFFIRMED. 2




                                          Gibbons



                     A—Lt                          J.         et_,LA
                Hardesty                                    Parraguirre


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                                          (
                                                                       , J.
                                          Saitta



                cc: Hon. Elliott A. Sattler, District Judge
                     Boies, Schiller & Flexner, LLP
                     Attorney General/Carson City
                     Washoe County District Attorney
                     Washoe District Court Clerk




                      2 The Honorable Kristina Pickering, Justice, voluntarily recused
                herself from participation in this matter.
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