                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                ROGER DON JONES,                                     No. 68562
                Appellant,
                vs.
                THE STATE OF NEVADA,                                           ALE
                Respondent.
                                                                               JUN 1 7 2016

                                                                         BY,
                                       ORDER OF AFFIRMANCE
                          This is a pro se appeal from a district court order denying a
                postconviction petition for a writ of habeas corpus.' Eighth Judicial
                District Court, Clark County; Eric Johnson, Judge.
                           Appellant Roger Don Jones filed his petition on April 21, 2015,
                more than three years after issuance of the remittitur on direct appeal on
                October 11, 2011.     See Jones v. State, Docket No. 55707 (Order of
                Affirmance, September 14, 2011). Thus, Jones's petition was untimely
                filed. See NRS 34.726(1). Jones's petition was procedurally barred absent
                a demonstration of good cause and actual prejudice. Id. A petitioner
                establishes good cause by showing that an impediment external to the
                defense prevented him from complying with procedural default rules.
                Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). Based
                upon our review of the record on appeal, we conclude that the district
                court did not err in denying the petition as procedurally barred for the
                reasons discussed below.

                      'This appeal has been submitted for decision without oral argument,
                NRAP 34(0(3) (amended effective October 1, 2015), and we conclude that
                the record is sufficient for our review and briefing is unwarranted. See
                Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975).

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                          First, Jones argued that he had good cause because he suffers
                from mental illness, lacks legal training, and has had to rely upon prison
                law clerks. As Jones has not demonstrated an impediment external to the
                defense that prevented him from complying with the procedural bars, we
                conclude that this argument lacks merit. See Phelps v. Dir., Nev. Dep't of
                                                                                        a
                Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988) (holding that
                petitioner's mental handicap and poor legal assistance from inmate law
                clerks did not establish good cause).
                            Second, Jones argued that the district court's failure to
                appoint postconviction counsel constituted good cause. NRS 34.750 allows
                the district court discretion to appoint postconviction counsel after a
                petition has been filed. As such, the lack of postconviction counsel before
                the petition was filed cannot provide good cause for the delay in filing the
                petition. See Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 870
                (2014) (concluding that claims of ineffective assistance of postconviction
                counsel in noncapital cases do not constitute good cause for a successive
                petition because there is no entitlement to appointed counsel).
                            Third, Jones argued that the ineffective assistance of his trial
                and appellate counsel provided good cause. A procedurally barred claim of
                ineffective assistance of trial and appellate counsel cannot constitute good
                cause. Hathaway, 119 Nev. at 252, 71 P.3d at 506. As Jones's claims of
                ineffective assistance of counsel were reasonably available to be raised in a
                 timely petition and Jones thus failed to demonstrate an impediment
                 external to the defense preventing him from complying with the
                 procedural time bar, we conclude that this claim lacks merit.     See id. at

                 252-53, 71 P.3d at 506.



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                                Fourth, Jones argued that failure to consider his claims on the
                   merits would result in a fundamental miscarriage of justice. To
                   demonstrate a fundamental miscarriage of justice, "the petitioner must
                   show that it is more likely than not that no reasonable juror would have
                   convicted him in the light of. . . the new evidence." Schlup v. Delo, 513
                   U.S. 298, 327 (1995); Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519,
                   537 (2001). Jones did not attempt to demonstrate his actual innocence
                   and has failed to meet his burden. Therefore, we conclude the district
                   court did not err in denying the petition as procedurally barred, and we
                                ORDER the judgment of the district court AFFIRMED. 2




                   cc: Hon. Eric Johnson, District Judge
                        Roger Don Jones
                        Attorney General/Carson City
                        Clark County District Attorney
                        Eighth District Court Clerk

                         2 We  note that the district court denied the petition in part based
                   upon laches pursuant to NRS 34.800(2). Laches does not apply because
                   the petition was filed within five years after issuance of the remittitur on
                   direct appeal. See id.; Little v. Warden, 117 Nev. 845, 853, 34 P.3d 540,
                   545 (2001) (measuring the period as "five years after the remittitur
                   disposing of the direct appeal or the judgment of conviction where no
                   direct appeal was filed"). Nevertheless, the district court correctly
                   concluded the petition was procedurally barred pursuant to NRS
                   34.726(1), and we therefore affirm. See Wyatt v. State, 86 Nev. 294, 298,
                   468 P.2d 338, 341 (1970).

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