                petition was procedurally barred absent a demonstration of good cause
                and actual prejudice.       See NRS 34326(1); NRS 34.810(1)(b); NRS
                34.810(3). Moreover, because the State specifically pleaded laches,
                appellant was required to overcome the rebuttable presumption of
                prejudice. NRS 34.800(2).
                            First, appellant claimed he had good cause because he recently
                discovered that there is no statute that specifically makes attempted
                robbery with the use of a deadly weapon a crime This claim was
                reasonably available to be raised in a timely petition and appellant failed
                to demonstrate that an impediment external to the defense precluded him
                from raising this claim in a timely manner      See Hathaway v. State, 119
                Nev. 248, 252, 71 P.3d 503, 506 (2003). Appellant also fails to
                demonstrate actual prejudice for this claim because attempted robbery
                with the use of a deadly weapon is a crime by application of NRS 193.165,
                NRS 193.330, and NES 200.380.
                            Second, appellant claimed that he was actually innocent of
                attempted robbery with the use of a deadly weapon because the legislature
                had not enacted a statute that caused it to be a crime. 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 v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001);


                 . . continued

                December 9, 2010); Moore v. State, Docket No. 57969 (Order of Affirmance
                July 13, 2011). Appellant also filed a post-conviction petition for a writ of
                habeas corpus in the district court on February 10, 2012, but he did not
                appeal the denial of that petition.



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                    Calderon v. Thompson, 523 U.S. 538, 559 (1998). Appellant did not
                    demonstrate actual innocence as his claim involved legal innocence, and
                    therefore, he failed to show that '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)); see also Pellegrini, 117 Nev. at 887, 34 P.3d at 537; Mazzan v.
                    Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996).
                                Finally, appellant failed to overcome the presumption of
                    prejudice to the State. Therefore, the district court did not err in denying
                    the petition. Accordingly, we
                                ORDER the judgment of the district court AFFIRMED.




                                                                                       J.
                                                       Pickering




                                                       Saitta


                    cc:   Hon. Elissa F. Cadish, District Judge
                          James Lamont Moore
                          Attorney General/Carson City
                          Clark County District Attorney
                          Eighth District Court Clerk




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