                habeas corpus on October 25, 2007, and an amended petition on February
                24, 2009. The State filed a motion to dismiss the petition. The district
                court denied the petition as procedurally barred. In this appeal, Howard
                argues that the district court erroneously denied his post-conviction
                petition on the grounds that: (1) the premeditation instruction given to
                the jury was constitutionally infirm because it failed to define deliberation
                as a distinct element of first-degree murder, (2) trial counsel were
                ineffective for not investigating and presenting mitigation evidence during
                the penalty hearing, and (3) he is actually innocent of the death penalty.
                            Because Howard filed his petition nearly 21 years after the
                remittitur issued on direct appeal and he had previously filed three other
                post-conviction petitions, the petition was untimely under NRS 34.726 and
                successive pursuant to NRS 34.810(2). The petition therefore was
                procedurally barred absent a demonstration of good cause and prejudice.
                NRS 34.726(1); NRS 34.810(3). When a petitioner cannot demonstrate
                good cause, the district court may nevertheless excuse a procedural bar if
                he demonstrates that failing to consider the petition would result in a
                fundamental miscarriage of justice. Pellegrini v. State, 117 Nev. 860, 887,
                34 P.3d 519, 537 (2001). 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. To establish actual innocence of
                the death penalty, the petitioner "must show by clear and convincing
                evidence that, but for a constitutional error, no reasonable juror would
                have found him death eligible." Id.
                            The State pleaded laches pursuant to NRS 34.800. Under that
                provision, a petition may be dismissed if the delay in filing the petition


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                  prejudices the State. NRS 34.800(1). A period exceeding five years
                  between the judgment or a decision on direct appeal and the filing of a
                  petition creates a rebuttable presumption of prejudice to the State. NRS
                  34.800(2). Howard cannot overcome the presumption of prejudice under
                  NRS 34.800(1)(a) because the claims were previously available, and, as to
                  the presumption of prejudice under NRS 34.800(1)(b), he has failed to
                  demonstrate a fundamental miscarriage of justice.
                  Premeditation instruction
                              Howard argues that the premeditation instruction given to the
                  jury was constitutionally infirm because it failed to define deliberation as
                  a distinct element of first-degree murder. He acknowledges that he
                  challenged the premeditation instruction in his third post-conviction
                  petition but argues that this court should nevertheless revisit his claim,
                  see Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975), and
                  that the procedural bars do not apply because this court's decision in Nika
                  v. State, 124 Nev. 1272, 198 P.3d 839 (2008), changed the law.
                              The jury was instructed in accordance with what has become
                  known as the Kazalynl instruction. In Byford     V.   State, 116 Nev. 215, 233-
                  37, 994 P.2d 700, 712-15 (2000), this court disapproved of the Kazalyn
                  instruction and provided district courts with new instructions to use in the
                  future. We concluded in Nika, 124 Nev. at 1287-89, 198 P.3d at 850-51,
                  that Byford does not apply to cases that were final when it was decided.
                  Howard's conviction was final 14 years before Byford was decided and


                        1Kazalyn   v. State, 108 Nev. 67, 75, 825 P.2d 578, 583 (1992).




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                therefore Byford does not apply. Howard acknowledges Nika but argues
                that its reasoning is flawed because (1) it did not address the due process
                concerns raised by the Ninth Circuit Court of Appeals in Polk v. Sandoval,
                503 F.3d 903 (9th Cir. 2007), regarding the Kazalyn instruction and (2) it
                overlooked constitutional concerns about the Kazalyn instruction. Neither
                ground warrants reconsideration of Nika nor any other relief because, as
                explained in Nika, this court is not bound by the Polk decision and
                Howard has not convinced us that the               Kazalyn    instruction is
                constitutionally infirm. Therefore, the district court did not err by
                denying this claim as procedurally barred.
                Ineffective assistance of counsel
                             Howard argues that the district court erred by denying his
                claim that trial counsel were ineffective for not investigating and
                presenting mitigation evidence during the penalty hearing. In addition to
                his claim being procedurally barred under NRS 34.726(1) and NRS
                34.810(1)(b)(2), his challenge is also barred by the law-of-the-case doctrine
                because we previously rejected his challenges to trial counsel's
                effectiveness in appeals from the denial of prior post-conviction petitions
                Relying primarily on Porter v. McCollum, 558 U.S. 30 (2009), Howard
                argues that this court should revisit this claim because the law has
                changed and this court's previous decisions denying relief on his
                ineffective-assistance-of-counsel claim were wrong. We conclude that
                Porter does not provide good cause to overcome applicable procedural bars
                or justify a departure from the law-of-the-case doctrine and therefore the
                district court did not err by denying this claim. Howard's claim has two




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                components—counsel's alleged failure to investigate potential mitigation
                and counsel's failure to present mitigation.
                            As to the investigation aspect of Howard's claim, his reliance
                on Porter to justify revisiting this claim is flawed. In Porter, the Supreme
                Court held that an uncooperative client does not obviate counsel's
                obligation to conduct some sort of mitigation investigation. 558 U.S. at 40.
                Howard contends that, as in Porter, counsel's duty to investigate potential
                mitigation evidence was not obviated by his decision not to present
                mitigation evidence.    Porter's sentiments concerning counsel's duty to
                investigate mitigation despite obstacles to that investigation are not new.
                Long before its decision in Porter, the Supreme Court made clear that
                counsel has a duty to investigate. See Strickland v. Washington, 466 U.S.
                668, 691 (1984) (acknowledging counsel's obligation to "make reasonable
                investigations or to make a reasonable decision that makes particular
                investigations unnecessary" but that "Mlle reasonableness of counsel's
                actions may be determined or substantially influenced by the defendant's
                own statements or actions"); see also Schriro v. Landrigan, 550 U.S. 465,
                478 (2007) (recognizing that the reasonableness of counsel's actions in
                investigating potential mitigation evidence is guided by a defendant's
                statements and actions); Wiggins v. Smith, 539 U.S. 510, 521-23 (2003)
                (recognizing counsel's duty to investigate). At most, Porter interjected
                another factor—an uncooperative client—to the determination of whether
                counsel's investigative efforts satisfied Strickland.
                            As to Howard's claim that Porter provides a basis to revisit his
                claim that counsel was ineffective for not presenting mitigation evidence,
                his argument is misplaced because           Porter concerned a failure-to-


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                investigate allegation, not the failure to present mitigation evidence. And
                this court has recognized that a defendant may waive his right to present
                mitigating evidence and counsel's acquiescence to that waiver does not
                establish ineffective assistance of counsel. Kirksey v. State, 112 Nev. 980,
                995-96, 923 P.2d 1102, 1112 (1996); Riley v. State, 110 Nev. 638, 651 n.8,
                878 P.2d 272, 280 n.8 (1994). Here, Howard advised the trial court that he
                did not want counsel to present available mitigation evidence, and, after
                canvassing him on his decision, the trial court concluded that he
                understood the nature of mitigation evidence and its value to his case.
                Actual innocence
                            Howard argues that he is actually innocent of the death
                penalty because (1) the mitigation evidence adduced at trial and during
                post-conviction proceedings establishes that he is actually innocent of the
                death penalty and (2) the two aggravating circumstances found—he was
                previously convicted of a felony involving the threat or use of force and the
                murder was committed during the perpetration of a robbery—are invalid.
                Actual innocence represents a "very narrow exception" to procedural
                default rules.   Sawyer v. Whitley, 505 U.S. 333, 341 (1992). Therefore,
                actual innocence compels a showing of something more than the prejudice
                required for most constitutional errors—in this case, ineffective assistance
                of counsel. Otherwise, actual innocence merely supplants the cause and
                prejudice standard attendant to procedurally barred claims. See id. at 345
                n.13 ("If a showing of actual innocence were reduced to actual prejudice, it
                would allow the evasion of the cause and prejudice standard which we
                have held also acts as an 'exception' to a defaulted, abusive, or successive
                claim" and "fiin practical terms a petitioner would no longer have to show


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                cause, contrary to our prior cases"). And ascribing a broad application of
                the actual-innocence exception contravenes judicial interest in the finality
                of judgments by encouraging perpetual challenges of death sentences with
                each discovery of additional mitigation evidence. See id. at 338 (observing
                that procedural default jurisprudence is premised on, among other things,
                "concerns for the finality of state judgments of conviction"). For the
                following reasons, we conclude that the district court did not err by
                denying Howard's claim that he is actually innocent of the death penalty
                on any of the grounds he asserts.
                            Mitigation evidence
                            Howard argues that new mitigation evidence establishes that
                he is actually innocent of the death penalty because had trial counsel
                presented it during the penalty hearing, the jury would not have found
                him death eligible. Even assuming that new mitigation evidence
                previously omitted due to constitutional error could provide the basis for
                an actual innocence claim, but see id. at 345-47, Howard must show by
                clear and convincing evidence that he is actually innocent of the death
                penalty, Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
                            Howard presented a plethora of mitigation evidence, but the
                core elements of that evidence show the following: He grew up in a
                physically and emotionally abusive home in the 1950s amidst racism and
                segregation. Howard witnessed his alcoholic father beat his mother on
                several occasions and ultimately kill her and Howard's infant sister when
                Howard was three years old. After the deaths of his mother and sister and
                his father's incarceration, Howard lived with distant relatives for a few
                years but that household was abusive. At age 12, he was sent to the


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                Alabama Industrial School for Negro Children at Mt. Meigs. Children
                housed at Mt. Meigs were subjected to significant physical, sexual, and
                emotional abuse by the staff and other children. The school provided
                inadequate clothing and insufficient and unsanitary food. The children
                were forced to work in the school's vegetable and cotton fields, where they
                worked long hours under harsh conditions and were exposed to dangerous
                pesticides. The dormitories were dilapidated and overcrowded. After
                three years at Mt. Meigs, Howard was sent to live with his abusive father
                for a short time and thereafter lived with relatives in a poor, violent, and
                blighted neighborhood in the Bedford-Stuyvesant section of Brooklyn, New
                York, until he was nineteen and enlisted in the Marine Corps. He
                eventually deployed to Vietnam as a minesweeper and subsequently
                experienced significant stress and trauma from sweeping for mines and
                living under the constant threat of sniper fire. After returning from
                Vietnam, Howard's behavior became erratic, reckless, and aggressive, and
                he engaged in criminal activity and abused drugs. In the months
                preceding Dr. Monahan's murder, Howard's girlfriend noticed that his
                mental state had deteriorated significantly, and he experienced
                nightmares and violent mood swings. He also disappeared for days at a
                time Howard attempted suicide while incarcerated in California and was
                sent to a mental institution for several months. In 2009, a psychologist
                issued a report concluding that he suffered from post-traumatic stress
                disorder (PTSD) as a result of his abusive childhood, especially his
                experience at Mt. Meigs, and combat experience in Vietnam. The
                psychologist also concluded that his exposure to toxic pesticides may have



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                exacerbated his already increased risk for violent behavior and his drug
                abuse, alcoholism, and suicide attempt were consistent with PTSD.
                           While the omitted mitigation evidence appears credible and
                constitutes evidence relevant to the sentencing decision, see Lockett v.
                Ohio, 438 U.S. 586, 602-03 (1978), the jury was exposed to some of these
                aspects of Howard's life. He testified that he volunteered to serve in the
                Marine Corps, suffering a head injury and exposure to Agent Orange
                while deployed to Vietnam. He described the negative effects of Agent
                Orange on his mental state—nervousness, aggressiveness, and violent
                tendencies. He testified that his father had killed his mother and sister
                when he was very young and that he had received psychiatric treatment at
                several hospitals during his lifetime, but he denied being mentally ill. He
                also testified that he had attempted suicide. Considering the new
                mitigation evidence, the circumstances of the murder, and the very narrow
                scope of the actual-innocence exception, we conclude that the new
                mitigation evidence does not rise to the level of clear and convincing and
                therefore does not establish that he is actually innocent of the death
                penalty.
                            Additionally, even assuming that the new mitigation evidence
                satisfied the actual-innocence exception, relief is unwarranted because
                Howard's ineffective-assistance claim lacked merit. He frustrated trial
                counsel's attempts to uncover mitigation evidence, and, while counsel is
                obligated to make reasonable decisions regarding investigative efforts, the
                reasonableness of counsel's actions "may be determined or substantially
                influenced by the defendant's own statements or actions." Strickland ix
                Washington, 466 U.S. 668, 691 (1984). And, more significantly here,


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                Howard instructed counsel not to present mitigating evidence. A
                defendant may waive his right to present mitigating evidence, and
                counsel's acquiescence to that waiver does not establish ineffective
                assistance of counsel. See Kirksey, 112 Nev. at 995-96, 923 P.2d at 1112;
                Riley, 110 Nev. at 651 n.8, 878 P.2d 280 n.8.
                            Aggravating circumstances
                                  Prior violent felony
                            Howard challenges the prior-violent-felony aggravating
                circumstance based on his 1979 New York robbery conviction on two
                grounds—(1) the State did not allege the robbery conviction in its notice of
                intent to seek the death penalty and (2) he was not convicted of the
                robbery. We conclude that Howard's claims lack merit. At the time of
                Howard's prosecution, SCR 250 did not exist and the prosecution was
                permitted to introduce evidence of aggravating circumstances, other than
                the aggravated nature of the crime itself, only if that evidence was
                disclosed to the defendant before the penalty hearing commenced.         See
                1977 Nev. Stat., ch. 585, § 7, at 1543. The record shows that before the
                jury heard evidence at the penalty hearing, a discussion ensued about the
                prior-violent-felony aggravating circumstance where the prosecution
                indicated that it intended to use the New York robbery conviction. We
                therefore conclude that he received adequate notice that the conviction
                would be used as an aggravating circumstance, but even so, any deficiency
                in the notice cannot establish actual innocence because it does not alter
                the evidence of the robbery conviction or the legal validity of the
                aggravating circumstance.



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                               We also reject Howard's contention that he was not convicted
                   of robbery. In this, he suggests that prior to the 1997 amendment to NRS
                   200.033(2)(b), the prosecution was required to prove a "conviction," as
                   contemplated by NRS 200.033(2)(b), by establishing both the existence of
                   and the entry of a final judgment. According to Howard, the 1997
                   amendment to the statute changed this "commonly understood" definition
                   and that applying the new definition imposed by the amendment—"a
                   person shall be deemed to have been convicted at the time the jury verdict
                   of guilt is rendered or upon pronouncement of guilt by a judge or judges
                   sitting without a jury"— to his case would violate the ex post facto clause
                   and his due process rights. The legislative history indicates that the 1997
                   amendment was enacted to clarify confusion about temporal relationships
                   between prior convictions and the penalty phase of capital prosecutions,
                   not to redefine the meaning of "conviction" under the statute.           See
                   Legislature's Summary of Senate Bill 281, 69th Leg. (Nev. 1997) ("Senate
                   Bill 281 clarifies certain provisions relating to circumstances aggravating
                   first-degree murder. . . . In addition, a conviction for another murder that
                   is not related to the immediate proceeding murder and that occurred at
                   any time before the penalty hearing also constitutes an aggravating
                   circumstance."); Hearing on S.B. 281 Before the Senate Comm. on
                   Judiciary, 69th Leg. (Nev., June 18, 1997); Hearing on S.B. 281 Before the
                   Assembly Comm. on Judiciary, 69th Leg. (Nev., July 1, 1997). In light of
                   Howard's admission at trial that he sustained the conviction in absentia
                   because he absconded during trial and other testimony and court
                   documents indicating that he incurred a robbery conviction, we conclude
                   that the State sufficiently proved the prior-violent-felony aggravating


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                circumstance based on robbery. See Ktrksey v. State, 107 Nev. 499, 504,
                814 P.2d 1008, 1011 (1991) (concluding that defendant's admission to prior
                conviction of robbery, copy of probation officer's report of crime, and copy
                of defendant's criminal history was sufficient to prove aggravating
                circumstance alleged pursuant to NRS 200.033(2)(b)).
                                         Felony based on robbery
                            Howard argues that he is actually innocent of the death
                penalty because the felony aggravating circumstance based on his robbery
                of Dr. Monahan is invalid under McConnell v. State, 120 Nev. 1043, 1069,
                102 P.3d 606, 624 (2004) (holding that it is "impermissible under the
                United States and Nevada Constitutions to base an aggravating
                circumstance in a capital prosecution on the felony upon which a felony
                murder is predicated"). Because the jury was instructed on premeditated
                and felony murder and the verdict is silent as to which theory or theories
                the jury relied on in finding Howard guilty of murder, the felony
                aggravating circumstance is invalid. However, the prior-violent-felony
                aggravating circumstance based on his New York robbery conviction
                remains valid and when weighed against the mitigating evidence
                presented to the jury, 2 we conclude that the jury would have found


                      2Contrary to Howard's arguments, the reweighing analysis is
                limited to the trial record. See Rippo v. State, 122 Nev. 1086, 1093-94, 146
                P.3d 279, 284 (2006); Archanian v. State, 122 Nev. 1019, 1040-41, 145 P.3d
                1008, 1023 (2006); Haberstroh v. State, 119 Nev. 173, 184 n.23, 69 P.3d
                676, 683 n.23 (2003) (emphasizing that this court's reweighing did not
                involve factual findings "other than those of the jury at the original
                penalty hearing"); see also Bridges V. State, 116 Nev. 752, 766, 6 P.3d
                1000, 1010 (2000) (stating that this court "elected to explicitly reweigh the
                                                                   continued on next page . . .


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                Howard death eligible and imposed death. Therefore, he has not shown by
                clear and convincing evidence that he is actually innocent of the death
                penalty.
                               Having considered Howard's claims and concluded that they
                lack merit, we
                               ORDER the judgment of the district court AFFIRMED.




                                                                   , CA.



                                                                                      J.



                                                J.                                    J.
                Parrag-uirre


                                                                                      J.
                                                          Saitta




                  . continued

                aggravating and mitigating circumstances based upon our independent
                review of the trial record").




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                  cc:   Hon. Michael Villani, District Judge
                        Gordon Silver
                        Federal Defender Services of Idaho
                        Attorney General/Carson City
                        Clark County District Attorney
                        Eighth District Court Clerk




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