                    was untimely under NRS 34.726(1). The petition was also successive and
                    therefore procedurally barred pursuant to NRS 34.810(1)(b)(2). To
                    overcome the statutory procedural bars, Leonard must demonstrate good
                    cause and prejudice. NRS 34.726(1); NRS 34.810(3). Although Leonard
                    provides little in the way of good cause to excuse the procedural bars, he
                    acknowledges that some claims raised here "bear a superficial
                    resemblance to issues raised in previous proceedings" and thus appears to
                    suggest that post-conviction counsel's ineffectiveness in investigating his
                    case justifies reconsideration of his claims. However, Leonard cannot base
                    a claim of good cause on the ineffective assistance of first post-conviction
                    counsel because his first petition was filed prior to the effective date of the
                    statute mandating the appointment of counsel for a first post-conviction
                    habeas petition in a death penalty case, see NRS 34.820(1); 1991 Nev.
                    Stat., ch. 44, §§ 32-33, at 92; Mazzan v. Warden, 112 Nev. 838, 841 n.1,
                    921 P.2d 920, 921 n.1 (1996), and therefore he did not have a right to the
                    effective assistance of post-conviction counsel, see Bejarano v. Warden, 112
                    Nev. 1466, 1470 n.1, 929 P.2d 922, 925 n.1 (1996); McKague v. Warden,
                    112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996). And he was not
                    entitled to the effective assistance of second post-conviction counsel.'


                           'Additionally, Leonard argues that this court must reconsider its
                    prior decision rejecting his conflict-of-interest claim against trial counsel,
                    see Leonard v. State, 108 Nev. 79, 81, 824 P.2d 287, 289 (1992), in light of
                    Coleman v. State, 109 Nev. 1, 846 P.2d 276 (1993). However, Coleman was
                    decided 18 years before Leonard filed the instant post-conviction petition
                    and he does not explain his delay in raising this claim and we reject his
                    contention that Coleman establishes an exception to the law-of-the-case
                    doctrine.

                          Leonard further asserts that his conviction and death sentence are
                    constitutionally invalid because he was not tried before a fair tribunal; his
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                  Consequently, the ineffective assistance of post-conviction counsel cannot
                  serve as good cause to overcome the procedural bars. 2 Pellegrini v. State,
                  117 Nev. 860, 887-88, 34 P.3d 519, 537-38 (2001); Bejarano, 112 Nev. at
                  1469, 929 P.2d at 925.
                                 Leonard also argues that applying the procedural bars in his
                  case is impermissible as "it would insulate meritorious constitutional
                  claims of ineffective assistance of trial counsel from any substantive
                  review." This explanation does not establish good cause. Leonard had the
                  opportunity to assert such claims in a timely first post-conviction petition,
                  and there is nothing impermissible or unconstitutional about the
                  procedural bars themselves, see generally Pellegrini, 117 Nev. at 878, 34
                  P.3d at 531.
                                 The State also pleaded laches pursuant to NRS 34.800. Under
                  that provision, a petition may be dismissed if the delay in filing the
                  petition prejudices the State. NRS 34.800(1). Because more than five
                  years passed between the judgment of conviction or the decision on direct
                  appeal and the filing of the petition, there was a rebuttable presumption of
                  prejudice to the State. NRS 34.800(2). Leonard cannot overcome the


                  . . . continued

                  claim extends to his first post-conviction proceedings. Absent from his
                  argument is any explanation for the delay in raising this claim; therefore,
                  he has not demonstrated good cause to overcome the procedural bars.

                        2 Tothe extent Leonard argues that the Supreme Court's decision in
                  Martinez v. Ryan, 566 U.S. , 132 S. Ct. 1309 (2012) serves as good
                  cause to overcome the procedural bars, we have held that Martinez does
                  not apply to Nevada's statutory post-conviction procedures. Brown v.
                  McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 871-72 (2014). Therefore,
                  Martinez does not provide good cause for his late and successive petition.

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                presumption of prejudice under NRS 34.800(1)(a) because the claims were
                previously available. As to the presumption of prejudice under NRS
                34.800(1)(b), as explained below, he has failed to demonstrate a
                fundamental. miscarriage of justice.
                Actual innocence
                               Where, as here, 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 actual innocence of
                the crime, the petitioner "must show that it is more likely than not that no
                reasonable juror would have convicted him absent a constitutional
                violation." Id. In this context, "actual innocence means factual innocence,
                not mere legal insufficiency."   Mitchell v. State, 122 Nev. 1269, 1273-74,
                149 P.3d 33, 36 (2006) (internal quotations and citations omitted).
                Similarly, when claiming a fundamental miscarriage of justice based on
                ineligibility for the death penalty, the petitioner "must show by clear and
                convincing evidence that, but for the constitutional error, no reasonable
                juror would have found him death eligible." Pellegrini, 117 Nev. at 887, 34
                P.3d at 537.
                               Leonard argues that not considering the merits of his
                constitutional claims based on procedural grounds constitutes a




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                 miscarriage of justice. Only two of Leonard's claims warrant brief
                 discussion. 3
                                 First-degree murder
                                 Leonard asserts actual innocence of first-degree murder based
                 on new mental health evidence that he claims establishes he was
                 incapable of forming the necessary intent (premeditation or lying in wait)
                 but that was not presented at trial due to counsel's ineffectiveness. We
                 conclude that the new evidence does not satisfy the very narrow actual-
                 innocence gateway to excuse the procedural bars that apply to the trial-
                 counsel claim.      See Gibbs v. United States, 655 F.3d 473, 477 (6th Cir.
                 2011) (observing that "actual innocence is an extremely narrow exception"
                 to the application of procedural default rules) (internal quotation omitted).
                 The evidence at trial showed that Leonard waited for an opportunity to
                 attack Wright. Armed with a shank, he surreptitiously gained access to
                 Wright's cell by rushing into his cell just as the prison guard closed the
                 cell door, trapping Wright inside. Wright suffered 21 stab wounds from
                 his head to his feet, with the fatal wound penetrating the pericardial sac of
                 his heart; Leonard sustained superficial scratches. Although the new
                 mental health evidence indicates that Leonard has poor impulse control
                 and may react violently and uncontrollably when he feels threatened,
                 intoxicated, or frightened, considering the trial evidence, Leonard has not
                 established that it was more likely than not that no reasonable juror
                 would convict him of first-degree murder.




                        3 We further conclude that the district court did not err by denying
                 his actual-innocence claims without conducting an evidentiary hearing.

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                   Death penalty
                                 Leonard also argues that new mitigation evidence establishes
                   that he is actually innocent of the death penalty. We recently decided in
                   Lisle v. State, 130 Nev., Adv. Op. 39 (2015) that "an actual-innocence
                   inquiry in Nevada must focus on the objective factors that make a
                   defendant eligible for the death penalty," that is, the aggravating
                   circumstances. Therefore, a claim of actual innocence of the death penalty
                   offered as a gateway to reach a procedurally defaulted claim cannot be
                   grounded in new evidence of mitigating circumstances. Id.
                                 Having considered Leonard's claims and concluded that they
                   lack merit, we
                                 ORDER the judgment of the district court AFFIRMED.


                                                                    C.J
                                            Hardesty




                   Parraeuitre




                   Gibbons                                    Pickering
                                                                          TI
                   CHERRY and SAITTA, JJ., dissenting:
                                 We dissent. For the reasons expressed in our dissent in Lisle
                   v. State, 131 Nev., Adv. Op. 39 (2015), we would reverse the judgment and
                   remand this matter to the district court for an evidentiary hearing to
                   determine the credibility of Leonard's new evidence of actual innocence.
                                 Leonard presented new evidence that he was actually innocent
                   of first-degree murder. This evidence consisted of statements and
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                  evaluations from three mental health experts who opined that Leonard
                  had poor impulse control, angered easily, and tended to over-react.
                  Specifically, one expert opined that Leonard's "history of psychological
                  trauma and abuse set him up to become hyper-vigilant and hyper-reactive
                  in situations in which he feels threatened" and that hyper-vigilance in
                  combination with his brain dysfunction resulted in an inability to
                  formulate the intent to kill when he perceives threat. Another expert
                  concluded that the combined effect of multiple pathological factors caused
                  Leonard to inaccurately "perceive events and people," and he "irrationally
                  perceived life-threatening situations and was unable to restrain his violent
                  impulses." Leonard pursued a self-defense theory at trial. This new
                  evidence would have gone a long way in sustaining that theory. While
                  recognizing the gravity of the evidence presented at trial to support first-
                  degree murder, we conclude that Leonard's new evidence justifies an
                  evidentiary hearing to test its credibility.
                               Leonard also presented new mitigation evidence to
                  demonstrate his actual innocence of the death penalty. As we observed in
                  Lisle, eligibility for the death penalty in Nevada requires two findings by
                  the jury: (1) at least one aggravating circumstance and (2) "that there are
                  no mitigating circumstances sufficient to outweigh the aggravating
                  circumstance or circumstances."        Id.; see NRS 175.554(3). The plain
                  language of the statute compels consideration of credible new mitigation
                  evidence in an actual-innocence claim. Here, Leonard presented
                  mitigation evidence illustrating his dysfunctional childhood, where he was
                  subjected to neglectful, alcoholic parents and violence from his parents,
                  stepfather, and other men. Not surprisingly, Leonard performed poorly in
                  school and became involved with alcohol and drugs at a young age, often
                  selling drugs for his father. This dysfunction and abuse led to Leonard
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                  engaging in significant criminal activity. New mental health evidence
                  suggested that, in his childhood, Leonard had been subjected to "severe
                  abuse, neglect, head injuries, violence, environmental instability and
                  pathological behavior by caretakers." As a result, he suffered from
                  longstanding "major mental illness, impoverished inhibitory controls plus
                  cognitive impairments and distortions or reality" that suppressed his
                  ability to control and conform his behavior to social and legal standards.
                  The evidence also showed that Leonard suffered from a variety of clinical
                  disorders, borderline antisocial personality disorder, serial head trauma,
                  and psychosocial stressors. If credible, the new mitigation material is
                  clear and convincing evidence that Leonard is actually innocent of the
                  death penalty. See Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537)
                  (2001) (observing the standard for a claim of actual innocence). We
                  conclude that this new evidence demands an evidentiary hearing to
                  determine its credibility.




                                                                                            J.




                  cc:   Hon. James Todd Russell, District Judge
                        Federal Public Defender/Las Vegas
                        Attorney General/Carson City
                        Attorney General/Las Vegas
                        Carson City Clerk


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