                appellant's petition was successive because he had previously litigated two
                post-conviction petitions 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. 3 See NRS 34.810(1)(b)(2); NRS 34.810(2).
                Appellant's petition was procedurally barred absent a demonstration of
                good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b);
                NRS 34.810(3). Good cause must be an impediment external to the
                defense. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003).
                Moreover, because the State specifically pleaded laches, appellant was
                required to overcome the rebuttable presumption of prejudice. NRS
                34.800(2).
                             Appellant first claimed that the law library was inadequate.
                Appellant failed to demonstrate that an impediment external to the
                defense excused his procedural defects as appellant's own statements
                indicate that the Department has provided adequate access to legal
                research materials.
                             Next, appellant claimed that the Kazalyn 4 instruction was
                unconstitutional and that his prior attorneys (trial, appellate and post-
                conviction) should have raised the claim earlier. A claim challenging the
                Kazalyn instruction was available to his post-conviction counsel because



                ...continued
                1998 decision on direct appeal. See Sullivan v. State, 120 Nev. 537, 541,
                96 P.3d 761, 764 (2004).

                      3 Leslie,118 Nev. 773, 59 P.3d 440; Leslie v. State, Docket No. 52954
                (Order of Affirmance, October 21, 2009).

                      4Kazalyn    v. State, 108 Nev. 67, 825 P.2d 578 (1992).

SUPREME COURT
        OF
     NEVADA
                                                        2
(0) 1947A
                the Byford5 decision altering the premeditation and deliberation jury
                instruction was entered on February 28, 2000, and the district court did
                not reach a decision on his first, timely petition until July 2000. 6 In order
                for a claim of ineffective assistance to constitute good cause, the claim of
                ineffective assistance of counsel must itself not be procedurally barred and
                the petitioner must demonstrate that the ineffective assistance of counsel
                prevented him from raising the claim in a timely fashion. Hathaway, 119
                Nev. at 252, 71 P.3d at 506. Appellant's claim of ineffective assistance of
                post-conviction counsel is procedurally barred as he failed to raise it
                within one year from the decision on his first post-conviction petition and
                he did not demonstrate good cause for his failure to do so. Moreover,
                appellant cannot demonstrate that his post-conviction counsel was
                ineffective because his conviction was final before Byford was decided, and
                thus, the court did not err in giving the Kazalyn instruction. See Nika v.
                State, 124 Nev. 1272, 1286-89, 198 P.3d 839, 849-51 (2008) (recognizing
                that Byford constituted a change in state law that had no retroactive
                application to convictions that were final when Byford was decided).
                Further, because the murder was committed during the course of a
                robbery and appellant was convicted of robbery, any issues relating to the
                jury instructions for premeditation and deliberation would be rendered



                      5 Byford   v. State, 116 Nev. 215, 994 P.2d 700 (2000).

                      6A  claim based on Byford was not available to his trial and appellate
                counsel. Appellant was under a sentence of death when he litigated his
                first post-conviction petition and was thus entitled to the appointment of
                counsel and the effective assistance of that counsel. NRS 34.820(1);
                Crump v. Warden, 113 Nev. 293, 934 P.2d 247 (1997); McKague v.
                Warden, 112 Nev. 159, 912 P.2d 255 (1996).

SUPREME COURT
        OF
     NEVADA
                                                        3
(0) 1947A


                                                                                                 - it
                harmless as his actions met the definition of first-degree murder.   Payne
                v. State, 81 Nev. 503, 505-06, 406 P.2d 922, 924 (1965). Finally, appellant
                failed to overcome the presumption of prejudice. Therefore, we conclude
                that the district court did not err in denying the petition as procedurally
                barred (untimely and successive), and barred by laches. Accordingly, we
                            ORDER the judgment of the district court AFFIRMED.




                                                   Iliaslesty


                                                  H 0.44A
                                                  Y
                                                   Parraguirre




                cc: Hon. Stefany Miley, District Judge
                     Wilbert Emory Leslie
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




SUPREME COURT
        OF
     NEVADA

                                                     4
(0) 1947A


                                                                                              it   7
