                raise claims that are supported by specific factual findings that are not
                belied by the record and, if true, would entitle him to relief). He further
                contends that even if he cannot demonstrate good cause to overcome the
                applicable procedural bars, the district court erred by denying his petition
                because the failure to consider it on the merits resulted in a fundamental
                miscarriage of justice.
                Procedural bars
                             Because Castillo filed his petition ten years after the
                remittitur issued in his direct appeal, Castillo v. State, 114 Nev. 271, 956
                P.2d 103 (1998), the petition was untimely under NRS 34.726(1). The
                petition was also successive because he previously filed a post-conviction
                petition 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.'   See NRS 34.810(1)(b)(2); 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(3).
                             As cause to overcome the procedural default-rules, Castillo
                advances three arguments: (1) his first post-conviction counsel was
                ineffective; (2) the inconsistent and discretionary application of procedural
                bars prohibits their use to deny him relief; and (3) any delay was not his
                fault.
                Ineffective assistance of first post-conviction counsel




                      'Castillo v. State, Docket No. 40982 (Order of Affirmance, February
                5, 2004).



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                            Castillo argues that the district court erred by denying his
                petition as procedurally barred because his first post-conviction counsel
                was ineffective for failing to adequately investigate mitigation evidence
                presented at the penalty phase.            While post-conviction counsel's
                ineffectiveness may constitute good cause to file claims in an untimely and
                successive petition, those claims are subject to NRS 34.726(1), State v.
                Eighth Judicial District Court (Riker), 121 Nev. 225, 235, 112 P.3d 1070,
                1077 (2005); Pellegrini v. 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 v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506
                (2003). Here, Castillo's post-conviction-counsel claims became available,
                at the latest, once this court resolved the appeal from the denial of his first
                post-conviction petition. Yet, he waited nearly five years after the
                remittitur issued from that appeal to file the instant petition. Therefore,
                his claims of ineffective assistance of post-conviction counsel are
                procedurally barred and cannot serve as good cause for the delay in filing
                his petition. See Stewart v. LaGrand, 526 U.S. 115, 120 (1999) (concluding
                that ineffective-assistance-of-counsel claim failed as good cause because
                the ineffective-assistance claim was itself procedurally defaulted);
                Hathaway, 119 Nev. at 252, 71 P.3d at 506 ("[T]o constitute adequate
                cause, the ineffective assistance of counsel claim itself must not be
                procedurally defaulted."); Riker, 121 Nev. at 235, 112 P.3d at 1077;
                Pellegrini, 117 Nev. at 869-70, 34 P.3d at 526. Therefore, the district court
                did not err in denying this claim without an evidentiary hearing.
                Challenge to the application of the procedural bars




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                            Castillo argues that the district court erred by denying his
                post-conviction petition as procedurally barred because the default rules
                are discretionary and this court inconsistently applies them. Contrary to
                Castillo's argument, we have held that procedural-default rules are
                mandatory, see Clem v. State, 119 Nev. 615, 623 n.43, 81 P.3d 521, 527
                n.43 (2003); Pellegrini, 117 Nev. at 886, 34 P.3d at 536, and have rejected
                claims that we have discretion to ignore them, Riker, 121 Nev. at 236, 238-
                39, 112 P.3d at 1077, 1079. Similarly, we have rejected claims that we
                inconsistently apply procedural default rules. Id. at 236, 112 P.3d at 1077.
                Even assuming any inconsistent application, we have rejected claims that
                any prior inconsistency excuses procedural default in other cases.         Id.
                Therefore, the district court did not err in denying this claim without an
                evidentiary hearing.
                Fault
                            Castillo argues that the district court erred by denying his
                petition as procedurally barred because NRS 34.726 does not apply to him,
                as the delay in filing the petition was not his fault but rather counsel's. In
                this, he contends that the plain language of NRS 34.726(1) evinces the
                Legislature's intent that petitioner himself must act or fail to act to cause
                delay. We reject Castillo's interpretation. We have held that NRS 34.726
                requires "a petitioner [to] show that an impediment external to the
                defense prevented him or her from complying with the state procedural
                default rules." Hathaway, 119 Nev. at 252, 71 P.3d at 506. This language
                contemplates that the delay in filing a petition must be caused by a
                circumstance not within the actual control of the defense team as a whole,
                not solely the defendant. Accepting Castillo's interpretation ascribes a


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                meaning to this statute not contemplated by the Legislature and would
                eviscerate NRS 34.726—as long as the defendant is represented by counsel
                (appointed or retained), the defendant would have good cause to file an
                untimely petition. Moreover, even if we accepted Castillo's construction of
                NRS 34.726(1), he waited nearly five years after this court resolved his
                appeal concerning his first post-conviction petition to file the instant
                petition, and the only explanation for the delay is that he was seeking
                relief in federal court. The election to go to federal court prior to pursuing
                state remedies does not provide good cause to excuse the procedural bars.
                See Colley v. State, 105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989).
                            Further, Castillo's claim that Colley should not apply to him
                because he suffers from neurological and psychological disorders is not
                persuasive for two reasons. First, Castillo filed his prior petition in proper
                person, and he fails to demonstrate why his alleged neurological and
                psychological disorders prevented him from filing his second petition in
                the same manner. Second, Castillo has been continuously represented by
                counsel since at least 2004, and he fails to demonstrate how his alleged
                neurological and psychological disorders prevented counsel from filing the
                petition in a timely manner. Therefore, the district court did not err in
                denying this claim without an evidentiary hearing.
                Fundamental miscarriage of justice
                            Castillo argues that even if he cannot demonstrate good cause
                to overcome the procedural bars, the district court's failure to consider his
                post-conviction petition on the merits resulted in a fundamental
                miscarriage of justice because he is actually innocent of first-degree
                murder under this court's decision in Byford v. State, 116 Nev. 215, 994


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                P.2d 700 (2000), regarding the first-degree murder instruction. 2 We
                disagree. In Byford, this court disapproved of the commonly-known
                Kazalyn 3 instruction and provided the district courts with instructions to
                use in the future.     Id. at 233-37, 994 P.2d at 712-15. However, we
                concluded in Nika v. State, that Byford does not apply to cases that were
                final when it was decided. 124 Nev. 1272, 1276, 198 P.3d 839, 842 (2008).
                Castillo's conviction was final before Byford was decided and therefore
                Byford does not apply.
                            Castillo acknowledges Nika but argues that the decision
                ignores the constitutional vagueness arguments attendant to the Kazalyn
                instruction and failed to determine whether            Byford   should apply
                retroactively as a substantive rule of criminal law. We disagree. Until
                Byford, this court consistently upheld the Kazalyn instruction and rejected
                constitutional challenges similar to Castillo's. Byford did not alter the law
                in effect when Castillo'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.



                      2Castillo also appears to argue that it would be a fundamental
                miscarriage of justice if this court did not consider his claim that if the
                additional mitigation evidence presented in the post-conviction
                proceedings had been presented at trial, the jury would have concluded
                that the mitigation evidence would have outweighed the aggravating
                circumstances and he would not have been sentenced to death. However,
                this claim is conclusory and not sufficiently developed to warrant relief.
                Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).

                      3Kazalyn   v. State, 108 Nev. 67, 75, 825 P.2d 578, 583 (1992).



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            Further, Castillo's claim that the use of the          Kazalyn
instruction in this case resulted in a fundamental miscarriage of justice
because the jury would have found him guilty of second-degree murder
rather than first-degree murder lacks merit. In order to demonstrate a
fundamental miscarriage of justice, a petitioner must make a colorable
showing of actual innocence—factual innocence, not legal innocence.
Pellegrini, 117 Nev. at 887, 34 P.3d at 537; Calderon v. Thompson, 523
U.S. 538, 559 (1998). Castillo's claim relating to the jury instructions is
not a claim regarding factual innocence and he fails to demonstrate that,
had the jury not received the Kazalyn instruction, "it is more likely than
not that no reasonable juror would have convicted him in light of. . . new
evidence." Calderon, 523 U.S. at 559 (quoting Schlup v. Delo, 513 U.S.
298, 327 (1995)); accord Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d
920, 922 (1996). Beyond those hurdles to his actual-innocence claim, the
underlying idea that Castillo would not have been convicted of first-degree
murder but for the Kazalyn instruction is fundamentally flawed. Castillo
was charged with first-degree murder based on two theories; that the
murder was committed in the perpetration or attempted perpetration of
two felonies (burglary and robbery) and that the murder was willful,
deliberate, and premeditated. The evidence supported a conclusion that
Castillo murdered Berendt during the perpetration of a burglary and
robbery, and he was convicted of burglary and robbery. The evidence also
supported a finding that the murder was premeditated and deliberate—
Castillo entered Berendt's home with a tire iron, hit the sleeping 86-year-
old woman with the tire iron, and then smothered her with a pillow.
Because there was substantial evidence that Castillo was guilty of first-




                                     7
degree murder under both the felony-murder theory and premeditation
theory, he could not demonstrate even legal innocence based on the
Kazalyn instruction. Therefore, the district court did not err in denying
this claim without an evidentiary hearing. Accordingly, we
             ORDER the judgment of the district court AFFIRMED. 4



                                        A L7                  , C.J.
                                  Pickering




                                                tfat...4.41   ,   J.
                                  Hardesty

                                     troisot
                                  Parraguirre


                                                                  J.




     4 The  Honorable Nancy Saitta voluntarily recused herself from
participation in the decision of this matter.




                                    8
                     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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