                                                     130 Nev., Advance Opinion 470
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  CHRISTOPHER BROWN,                                   No. 60065
                  Appellant,
                  vs.
                  E.K. MCDANIEL, WARDEN,
                                                                               FILED
                  Respondent.                                                   AUG 0 7 2014
                                                                                 A• E K. LINDEMAN
                                                                         CL            U p.
                                                                        BY          As     40*
                                                                              CHI lz DEP         LERK


                             Appeal from a district court order dismissing a post- onviction
                  petition for a writ of habeas corpus. Second Judicial District Court,
                  Washoe County; Connie J. Steinheimer, Judge.
                             Affirmed.

                  Rene Valladares, Federal Public Defender, and Ryan Neil Norwood and
                  Megan C. Hoffman, Assistant Federal Public Defenders, Las Vegas,
                  for Appellant.

                  Catherine Cortez Masto, Attorney General, Carson City; Richard A.
                  Gammick, District Attorney, and Terrence P. McCarthy, Deputy District
                  Attorney, Washoe County,
                  for Respondent.

                  Steven S. Owens, Las Vegas,
                  for Amicus Curiae Nevada District Attorneys Association.

                  Robert Arroyo, Las Vegas,
                  for Arnicus Curiae Nevada Attorneys for Criminal Justice.

                  Catherine Cortez Masto, Attorney General, and Jeffrey M. Conner and
                  Michael J. Bongard, Deputy Attorneys General, Carson City,
                  for Amicus Curiae Nevada Attorney General.




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                BEFORE THE COURT EN BANC.

                                                  OPINION
                By the Court, HARDESTY, J.:
                            Appellant Christopher Brown appeals from the district court's
                dismissal of his untimely and successive post-conviction petition for a writ
                of habeas corpus. At issue is whether, in light of the United States
                Supreme Court's recent decision in Martinez v. Ryan, 566 U.S. , 132 S.
                Ct. 1309 (2012), the ineffective assistance of post-conviction counsel may
                constitute good cause under MRS 34.726(1) and MRS 34.810 to allow a
                noncapital petitioner to file an untimely and successive post-conviction
                petition for a writ of habeas corpus. We conclude that Martinez does not
                alter our prior decisions that a petitioner has no constitutional right to
                post-conviction counsel and that post-conviction counsel's performance
                does not constitute good cause to excuse the procedural bars under NRS
                34.726(1) or MRS 34.810 unless the appointment of that counsel was
                mandated by statute. E.g., Crump v. Warden, 113 Nev. 293, 302-03,934
                P.2d 247, 253 (1997); McKague v. Warden, 112 Nev. 159, 163-65, 912 P.2d
                255, 257-58 (1996). Because Brown failed to overcome the procedural
                bars, we affirm the decision of the district court to dismiss the post-
                conviction petition for a writ of habeas corpus.
                                  FACTS AND PROCEDURAL HISTORY
                            Brown was convicted of first-degree murder with the use of a
                deadly weapon and was sentenced to two consecutive terms of 20 to 50
                years imprisonment. This court affirmed his judgment of conviction on
                appeal in January 2006.      Brown v. State, Docket No 45026 (Order of
                Affirmance, January 11, 2006). The remittitur issued on February 7,
                2006. Brown then filed a timely post-conviction petition for a writ of

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                   habeas corpus. The district court appointed counsel to represent him, and
                   counsel filed a supplemental petition. The district court denied Brown's
                   petition on the merits, and this court affirmed the district court's order.
                   Brown v. State, Docket No. 51847 (Order of Affirmance, August 10, 2009).
                                On June 10, 2010, Brown filed a second post-conviction
                   petition for a writ of habeas corpus, alleging claims of ineffective
                   assistance of trial and appellate counsel. Brown conceded that his petition
                   was untimely and successive but argued that he had good cause to excuse
                   the procedural bars because his first post-conviction counsel had provided
                   ineffective assistance by failing to present these claims in his first post-
                   conviction petition, and because he was actually innocent and it would be
                   a miscarriage of justice if his claims were procedurally barred. Brown
                   filed a notice of supplemental authority alerting the district court to a
                   then-pending case before the United States Supreme Court, Martinez v.
                   Ryan, 566 U.S. , 132 S. Ct. 1309 (2012). The district court dismissed
                   Brown's petition as procedurally barred pursuant to NRS 34.726(1) and
                   MRS 34.810 because the petition was untimely and successive. The
                   district court found that Brown failed to overcome the procedural bars
                   because ineffective assistance of post-conviction counsel did not constitute
                   cause to excuse the procedural bars and Brown did not demonstrate actual
                   innocence.
                                                  DISCUSSION
                                Brown challenges the district court's determination that his
                   claims were barred under MRS 34.726(1) and MRS 34.810. Specifically, he
                   claims that he established "good cause" to excuse these procedural bars
                   because his first post-conviction counsel was ineffective for failing to raise
                   or preserve meritorious claims in his initial state post-conviction
                   proceeding He relies on the Supreme Court's decision in Martinez.
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                 The applicable procedural bars
                             Nevada's statutory post-conviction scheme places procedural
                 limits on the filing of a post-conviction petition for a writ of habeas corpus.
                 NRS 34.726(1) provides for dismissal of a post-conviction habeas petition if
                 it is not filed within one year after this court issues its remittitur from a
                 timely direct appeal from the judgment of conviction or, if no appeal has
                 been prosecuted, within one year from the entry of the judgment of
                 conviction. See Dickerson v. State, 114 Nev. 1084, 1087, 967 P.2d 1132,
                 1133-34 (1998). NRS 34.810(1)(b) provides for dismissal of claims where
                 the petitioner's conviction was the result of a trial and the claims could
                 have been raised earlier. NRS 34.810(2) provides for dismissal of a second
                 or successive petition if the grounds for the petition were already raised
                 and considered on the merits in a prior petition or if the grounds could
                 have been raised in a prior petition.
                             To overcome these statutory procedural bars, a petitioner
                 must demonstrate "good cause" for the default and actual prejudice. NRS
                 34.726(1); NRS 34.810(3). We have defined "good cause" as a "substantial
                 reason .. . that affords a legal excuse." Hathaway v. State, 119 Nev. 248,
                 252, 71 P.3d 503, 506 (2003) (internal quotations omitted). To show good
                 cause, a petitioner must demonstrate that an "impediment external to the
                 defense" prevented him from complying with the procedural rules.
                 Passanisi v. Dir., Nev. Dep't of Prisons, 105 Nev. 63, 66, 769 P.2d 72, 74
                 (1989) (citing Murray v. Carrier, 477 U.S. 478 (1986)); see also Pellegrini v.
                 State, 117 Nev. 860, 886, 34 P.3d 519, 537 (2001).
                             Brown filed his second post-conviction petition more than four
                 years after the issuance of remittitur on direct appeal from the judgment
                 of conviction. His first petition was denied on the merits, and the claims
                 that he raised in his second petition were, or could have been, raised in his
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                   first petition. Thus, as Brown concedes, his second petition is barred as
                   untimely and successive unless he can demonstrate good cause for the
                   default and actual prejudice. See NRS 34.726(1); NRS 34.810(2), (3). He
                   asserts that the ineffective assistance of his prior post-conviction counsel
                   provides cause and prejudice to excuse his failure to comply with Nevada's
                   procedural rules governing post-conviction habeas petitions.
                               Our case law clearly forecloses Brown's contention. We have
                   consistently held that the ineffective assistance of post-conviction counsel
                   in a noncapital case may not constitute "good cause" to excuse procedural
                   defaults. See McKague, 112 Nev. at 163-65, 912 P.2d at 258; cf. Crump,
                   113 Nev. at 303 & n.5, 934 P.2d at 253 & n.5; Mazzan v. Warden, 112 Nev.
                   838, 841, 921 P.2d 920, 921-22 (1996). This is because there is no
                   constitutional or statutory right to the assistance of counsel in noncapital
                   post-conviction proceedings, and "[w]here there is no right to counsel there
                   can be no deprivation of effective assistance of counsel." 1 McKague, 112
                   Nev. at 164-65, 912 P.2d at 258.
                   Martinez v. Ryan does not address state procedural bars
                               Brown argues that            Martinez   changes this court's
                   jurisprudence holding that ineffective assistance of post-conviction counsel



                         'Petitioners who are sentenced to death have a statutory right to the
                   appointment of counsel in their first post-conviction proceeding, see NRS
                   34.820(1)(a), and are thus entitled to effective assistance of appointed
                   counsel in that proceeding. See McKague, 112 Nev. at 165 n.5, 912 P.2d at
                   258 n.5; see also Crump, 113 Nev. at 303 & n.5, 934 P.2d at 253 & n.5. In
                   contrast, the appointment of post-conviction counsel to represent
                   noncapital petitioners is subject to the district court's discretion as
                   provided in NRS 34.750(1).


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                provides good cause to excuse a state procedural bar only when
                appointment of that counsel was mandated by statute. We disagree. 2
                              Martinez, an Arizona state prisoner, filed a petition for a writ
                of habeas corpus in federal court raising claims of ineffective assistance of
                trial counsel 566 U.S. at 132 S. Ct. at 1314. Because those claims
                had been denied in state court based on a state procedural rule (they could
                have been raised in a prior state collateral proceeding), id. at , 132 S.
                Ct. at 1314, federal court review of their merits normally would have been
                precluded by the doctrine of procedural default, id. at , 132 S. Ct. at
                1316. Martinez did not dispute that his claims had been rejected in state
                court based on an independent and adequate state ground but instead
                relied on an exception to the procedural default doctrine by which a state
                "prisoner may obtain federal review of a defaulted claim by showing cause
                for the default and prejudice from a violation of federal law."       Id. at ,
                132 S. Ct. at 1316. In particular, he argued that he had good cause for the
                procedural default because counsel in his first state collateral proceeding
                was ineffective for failing to raise the ineffective-assistance-of-trial-counsel
                claims in that proceeding. Id. at , 132 S. Ct. at 1314-15.
                              The Supreme Court in Martinez thus considered "whether
                ineffective assistance in an initial-review collateral proceeding on a claim


                      2 The State contends that we need not address this argument
                because any rule allowing the ineffective assistance of post-conviction
                counsel to constitute "good cause" to excuse procedural bars would not be
                retroactively applied to Brown. We conclude that retroactivity is not at
                issue because the second petition was the first opportunity for Brown to
                assert the ineffectiveness of post-conviction counsel as good cause to
                excuse a state procedural bar.



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                     of ineffective assistance at trial may provide cause for a procedural default
                     in a federal habeas proceeding." Id. at 132 S. Ct. at 1315 (emphasis
                     added). The Supreme Court answered that question in the affirmative
                     where state law provides that ineffective-assistance-of-trial-counsel claims
                     must be raised in a collateral proceeding:
                                      Where, under state law, claims of ineffective
                                      assistance of trial counsel must be raised in an
                                      initial-review collateral proceeding, a procedural
                                      default will not bar a federal habeas court from
                                      hearing a substantial claim of ineffective
                                      assistance at trial if, in the initial-review
                                      collateral proceeding, there was no counsel or
                                      counsel in that proceeding was ineffective.
                     Id. at       132 S. Ct. at 1320.
                                      The Supreme Court, however, expressly declined in Martinez
                     to decide whether a federal constitutional right to counsel exists in post-
                     conviction proceedings and instead emphasized that its ruling was
                     equitable in nature rather than constitutional. 3 Id. at , 132 S. Ct. at
                     1315, 1318. The Court clarified that the equitable rule did not require the
                     appointment of counsel in initial-review collateral proceedings in state
                     court but rather permitted the State "to elect between appointing counsel
                     in initial-review collateral proceedings or not asserting a procedural
                     default and raising a defense on the merits in federal habeas proceedings."
                     Id. at , 132 S. Ct. at 1319-20 (emphasis added).


                              3 The
                                  Court recognized that its decision in Coleman v. Thompson,
                     501 U.S. 722 (1991), left open the question of "whether a prisoner has a
                     right to effective counsel in collateral proceedings which provide the first
                     occasion to raise a claim of ineffective assistance at trial." Martinez, 566
                     U.S. at , 132 S. Ct. at 1315. The Martinez Court declined to answer
                     that question. Id. at    , 132 S. Ct. at 1315.


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                             Martinez does not alter our decisions in McKague and Crump
                 for two reasons. First, Martinez did not announce a constitutional right to
                 counsel in post-conviction proceedings. Rather, the Court created an
                 equitable exception to its decision in Coleman v. Thompson, 501 U.S. 722
                 (1991), "that an attorney's negligence in a postconviction proceeding does
                 not establish cause" so that a federal court may review a state prisoner's
                 defaulted claim. Martinez, 566 U.S. at , 132 S. Ct. at 1319. Second, the
                 Martinez decision is limited to the application of the procedural default
                 doctrine that guides a federal habeas court's review of the
                 constitutionality of a state prisoner's conviction and sentence.   See, e.g., id.
                 at , 132 S. Ct. at 1313 (describing the question presented as "whether a
                 federal habeas court may excuse a procedural default"). It says nothing
                 about the application of state procedural default rules. Thus, Martinez
                 does not call into question the validity of NRS 34.750(1), which provides
                 for the discretionary appointment of counsel to represent noncapital
                 habeas petitioners, nor does it mandate a change in our case law holding
                 that noncapital petitioners have no right to the effective assistance of
                 counsel in post-conviction proceedings and that the ineffectiveness of
                 counsel representing a noncapital petitioner does not constitute good
                 cause to excuse a state procedural bar. 4 Accord State v. Escareno-Meraz,
                 307 P.3d 1013, 1014 (Ariz. Ct. App. 2013) (concluding that "Martinez does
                 not alter established Arizona law" that a defendant is not entitled to

                       4 We note that because Nevada requires that ineffective-assistance-
                 of-trial-counsel claims be raised in a post-conviction petition rather than
                 on direct appeal, see, e.g., Pellegrini, 117 Nev. at 882, 34 P.3d at 534, the
                 equitable rule from Martinez will apply to Nevada state petitioners in
                 federal habeas proceedings.


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                effective assistance of counsel in post-conviction proceedings); Gore v.
                State, 91 So. 3d 769, 778 (Fla. 2012) ("It appears that Martinez is directed
                toward federal habeas proceedings and is designed and intended to
                address issues that arise in that context."), cert. denied, 566 U.S. , 132
                S. Ct. 1904 (2012); Martin v. State, 386 S.W.3d 179, 185-86 (Mo. Ct. App.
                2012) ("Martinez speaks only to federal habeas corpus procedure and does
                not establish a constitutional right to the effective assistance of post-
                conviction counsel."); Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa.
                Super. Ct. 2013) ("While Martinez represents a significant development in
                federal habeas corpus law, it is of no moment with respect to the way
                Pennsylvania courts apply the plain language of the time bar set forth in
                [its post-conviction act]."), cert. denied, 571 U.S. , 134 S. Ct. 944 (2014);
                Kelly v. State, 745 S.E.2d 377, 377 (S.C. 2013) ("Like other states, we
                hereby recognize that the holding in Martinez is limited to federal habeas
                corpus review and is not applicable to state post-conviction relief
                actions.").
                              Brown and amicus curiae Nevada Attorneys for Criminal
                Justice (NACJ) nonetheless urge this court to adopt the rationale from
                Martinez even if Martinez does not require us to do so. 5 Brown contends
                that the reasoning behind Martinez—promotion of comity, finality, and
                federalism—applies equally to state habeas proceedings, and Nevada's
                cause-and-prejudice analysis is nearly identical to the federal cause-and-
                prejudice standard. We decline Brown's invitation to adopt an equitable


                      5 We invited the participation of amici curiae NACJ and the Nevada
                District Attorneys Association (NDAA) concerning the applicability of
                Martinez to state post-conviction proceedings.



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                exception to the general rule in Nevada that the ineffective assistance of
                post-conviction counsel does not establish cause for a habeas petitioner's
                procedural default of an ineffective-assistance-of-trial-counsel claim unless
                the appointment of post-conviction counsel was mandated by statute.
                            The exception pressed by Brown is contrary to the statutory
                language in NRS Chapter 34 and the clear legislative intent behind the
                statutes. Nevada's post-conviction statutes contemplate the filing of one
                post-conviction petition to challenge a conviction or sentence. This is
                reflected in the plain language of the statutes themselves. For example,
                instruction number five to the habeas corpus petition form found in NRS
                34.735 directs petitioners to include in the petition "all grounds or claims
                for relief' regarding the conviction or sentence and warns petitioners that
                failure to do so could preclude them from filing future petitions, 6 and NRS
                34.810 provides for dismissal of claims that could have been or were raised
                in a prior post-conviction proceeding, NRS 34.810(1)(b), (2). It is also
                reflected in the legislative history of the statutes, which were amended in
                1991 to provide for a single post-conviction remedy, effective January 1,
                1993. See Pellegrini v. State, 117 Nev. 860, 870-73, 876-77, 34 P.3d 519,
                526-28, 530 (2001) (setting forth the history of Nevada's post-conviction
                remedies). The purpose of the single post-conviction remedy and the


                      °See also NRS 34.820(4) (providing that if petitioner has been
                sentenced to death and the petition is the first one challenging the validity
                of a conviction or sentence, "[Ole court shall inform the petitioner and the
                petitioner's counsel that all claims which challenge the conviction or
                imposition of the sentence must be joined in a single petition and that any
                matter not included in the petition will not be considered in a subsequent
                proceeding").



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                  statutory procedural bars is "to ensure that petitioners would be limited to
                  one time through the post-conviction system." Id. at 876-77, 34 P.3d at
                  530. As this court made clear in Pellegrini, "Nevada's lawmakers never
                  intended for petitioners to have multiple opportunities to obtain post-
                  conviction relief absent extraordinary circumstances." Id. at 876, 34 P.3d
                  at 530. The rule advanced on Brown's behalf would circumvent the
                  Legislature's "one time through the system" intent, as every petitioner
                  who is appointed post-conviction counsel would then have an opportunity
                  to litigate a second petition. The filing of successive (and most likely
                  untimely) petitions would overload the court system, significantly increase
                  the costs of post-conviction proceedings, and undermine the finality of the
                  judgment of conviction, precisely what the Legislature was attempting to
                  avoid in creating the single post-conviction remedy in NRS Chapter 34. 7
                  See id.; see also State v. Eighth Judicial Dist. Court, 121 Nev. 225, 231,
                  112 P.3d 1070, 1074 (2005) ("Habeas corpus petitions that are filed many
                  years after conviction are an unreasonable burden on the criminal justice
                  system. The necessity for a workable system dictates that there must




                        7 The lack of finality resulting from Martinez's equitable rule was a
                  major criticism by the dissenting justices:

                                Criminal conviction ought to be final before society
                                has forgotten the crime that justifies it. When a
                                case arrives at federal habeas, the state conviction
                                and sentence at issue (never mind the underlying
                                crime) are already a dim memory, on average
                                more than 6 years old (7 years for capital cases).
                  Martinez, 566 U.S. at      , 132 S. Ct. at 1325 (Scalia, J., dissenting).



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                   exist a time when a criminal conviction is final." (internal quotations
                   omitted)).
                                The conflict between a rule similar to that in Martinez and
                   Nevada's current statutory habeas scheme becomes more apparent when
                   the remaining part of the Martinez rule is considered. Martinez does not
                   just allow the federal habeas courts to consider the merits of an
                   ineffective-assistance-of-trial-counsel claim that was procedurally
                   defaulted in state court where the petitioner was represented by allegedly
                   ineffective post-conviction counsel in the initial-review collateral
                   proceeding. It also allows the federal habeas courts to consider the merits
                   of a procedurally defaulted ineffective-assistance-of-trial-counsel claim
                   where the petitioner did not have counsel in the initial-review collateral
                   proceeding. 566 U.S. at , 132 S. Ct. at 1319-20. Although Brown only
                   urges this court to follow Martinez with respect to "cause" based on
                   ineffective assistance of post-conviction counsel, it would be difficult for us
                   to follow one part of Martinez without the other as both parts of the
                   holding are based on the same idea—that "a prisoner likely needs an
                   effective attorney" in order "[t]o present a claim of ineffective assistance at
                   trial in accordance with the State's procedures," id. at , 132 S. Ct. at
                   1317. If we were to follow the failure-to-appoint-counsel part of Martinez,
                   we would effectively eliminate the mandatory procedural default
                   provisions (particularly NRS 34.810) when the district court determines
                   that the appointment of counsel is not warranted, as it has the discretion
                   to do under NRS 34.750(1). The only way to maintain the integrity of the
                   mandatory procedural default provisions would be to appoint counsel in all
                   initial-review post-conviction proceedings, effectively making the
                   appointment of counsel mandatory in direct contravention of NRS

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                   34.750(1). 8 Given these provisions and the Supreme Court's refusal to
                   recognize a constitutional right to counsel in initial-review collateral
                   proceedings, this is one more reason that we cannot reconcile the Martinez
                   rule with our state habeas statutes even on the purportedly limited scope
                   advanced by Brown.
                                 We also reject the suggestion that we should adopt an
                   exception similar to that adopted in Martinez because the Legislature
                   intended that the state habeas remedy be "coextensive" with the federal
                   habeas remedy and exceptions to federal procedural bars. Although the
                   Legislature may have created the statutory post-conviction remedy in
                   response to United States Supreme Court decisions that implied "the need
                   for an appropriate state post-conviction collateral remedy to review
                   claimed violations of federally protected rights," Marshall v. Warden, 83
                   Nev. 442, 444, 434 P.2d 437, 438-39 (1967) (citing Case v. Nebraska, 381
                   U.S. 336 (1965)) (indicating that the Nevada Legislature's adoption of the
                   post-conviction collateral remedy act in 1967 was in response to the
                   Supreme Court's extension of numerous federal protections to state
                   criminal cases), superseded by statute as stated in Passanisi v. Dir., Nev.


                         8 The  Legislature at one time made the appointment of counsel
                   mandatory in post-conviction proceedings, see 1973 Nev. Stat., ch. 102, § 2,
                   at 169, but later made appointment of counsel discretionary, see 1987 Nev.
                   Stat., ch. 539, § 42, at 1230; see also Crump, 113 Nev. at 297 n.2, 934 P.2d
                   at 249 n.2. This history, combined with the Legislature's enactment of the
                   current statutes providing for mandatory appointment of counsel for
                   capital petitioners but discretionary appointment for noncapital
                   petitioners, compare NRS 34.750(1), with NRS 34.820(1), evinces an intent
                   to preclude noncapital petitioners from automatically being appointed
                   counsel.



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                 Dep't of Prisons, 105 Nev. 63, 67, 769 P.2d 72, 75 (1989), the statutory
                 provisions and legislative history do not evidence an intent that Nevada's
                 statutory procedural bars be coterminous with the federal doctrine of
                 procedural default. The doctrine of procedural default applied by federal
                 habeas courts is based in principles of comity; it is "designed to ensure
                 that state-court judgments are accorded the finality and respect necessary
                 to preserve the integrity of legal proceedings within our system of
                 federalism." Martinez, 566 U.S. at , 132 S. Ct. at 1316. In contrast, as
                 explained above, Nevada's statutory procedural bars are designed to
                 streamline the post-conviction review process and ensure the finality of
                 judgments of conviction while leaving open a safety valve for defaulted
                 violations of state law and constitutional rights in very limited
                 circumstances. 9 The state procedural bars to post-conviction habeas relief
                 thus "exist to implement policies independent from those animating the

                       9 We    agree with Brown that the State has an interest in having
                 federal constitutional errors addressed in the first instance by a Nevada
                 court. But that interest is not the focus of Nevada's statutory habeas
                 remedy. The Legislature adopted mandatory procedural bars and did not
                 include an exception to the procedural bars for procedurally defaulted
                 claims that might nonetheless be addressed on the merits by a federal
                 habeas court. That is understandable since doing so would mean that a
                 petitioner's desire to exhaust a claim in state court before federal court
                 review would always excuse a state procedural bar—a result that would
                 render those procedural bars largely meaningless and undermine the
                 interest in finality that animates the statutory habeas remedy and its
                 procedural bars. Cf. In re Reno, 283 P.3d 1181, 1233 (Cal. 2012) (rejecting
                 the claim that petitioner's desire to exhaust claims for federal review
                 provided an exception to a state procedural rule precluding habeas corpus
                 where claimed errors could have been raised on appeal because such an
                 exception "would fatally undermine this state's substantial interest in the
                 finality of its criminal judgments").



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                 [federal doctrineS of procedural default]." In re Reno, 283 P.3d 1181, 1233
                 & n.30 (Cal. 2012).
                                 Our history of turning to federal cases defining cause and
                 prejudice when interpreting similar language in Nevada's procedural
                 default statutes does not undermine that conclusion or require that we
                 blindly follow Martinez. While we have looked to the Supreme Court for
                 guidance, 10 we have not followed Supreme Court decisions when they are
                 inconsistent with state law. For example, we have rejected the prison
                 mailbox rule to allow for tolling of the one-year period for state post-
                 conviction habeas petitions, despite the application of it by federal habeas
                 courts. See Gonzales v. State, 118 Nev. 590, 594-95, 53 P.3d 901, 903-04
                 (2002). We have also rejected equitable tolling of the one-year filing period
                 set forth in NRS 34.726 because the statute's plain language requires a
                 petitioner to demonstrate a legal excuse for any delay in filing a petition.
                 See Hathaway, 119 Nev. at 252, 254 n.13, 71 P.3d at 506, 507 n.13. We
                 are not bound by Supreme Court decisions in our interpretation of the


                       10 5ee,e.g., Passanisi, 105 Nev. at 66, 769 P.2d at 74 (citing Murray
                 v. Carrier, 477 U.S. 478 (1986), for the requirement that good cause be
                 some impediment "external to the defense"); Hathaway v. State, 119 Nev.
                 248, 252, 71 P.3d 503, 506 (2003) (quoting the Supreme Court's
                 explanation in Murray, 477 U.S. at 488, as to how an impediment
                 "external to the defense" may be demonstrated); McKague v. Warden, 112
                 Nev. 159, 164 & n.4, 165, 912 P.2d 255, 258 & n.4 (1996) (adopting the
                 reasoning that the Supreme Court applied to federal habeas proceedings
                 as to whether the ineffective assistance of counsel may constitute "good
                 cause"); Crump v. Warden, 113 Nev. 293, 304, 934 P.2d 247, 253 (1997)
                 (relying on Murray and Coleman v. Thompson, 501 U.S. 722 (1991), for the
                 proposition that mere attorney error such as ignorance or inadvertence
                 may not constitute "cause").



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                    "cause" exceptions under NRS 34.726 and 34.810, and because the
                    Martinez rule does not fit within our State's statutory post-conviction
                    framework, we decline to extend it to state post-conviction proceedings.
                                Post-conviction relief is a statutory remedy and it is up to the
                    Legislature to define its contours. Adoption of a rule fashioned after
                    Martinez would conflict with the current statutory post-conviction scheme,
                    impose significant costs, and undermine the finality of judgments of
                    conviction. Whether or how a rule similar to that adopted in Martinez
                    should be adopted in state post-conviction proceedings is a matter of policy
                    and lies in the hands of the Legislature. Based on the foregoing, we
                    conclude that Brown's petition was barred as untimely and successive and
                    that he did not demonstrate good cause and prejudice to overcome the
                    procedural bars.
                    Actual innocence
                                Brown also argues that the failure to consider his claims on
                    the merits would result in a fundamental miscarriage of justice because
                    there was no evidence of premeditation and deliberation, and thus the
                    facts at trial did not support a finding of first-degree murder. 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, 117 Nev. at 887, 34 P.3d at 537; see Calderon v.
                    Thompson, 523 U.S. 538, 559 (1998). Actual innocence means 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. Brown does not identify any new evidence of his innocence;
                    rather, his argument of actual innocence relies on his legal claims that
                    there was insufficient evidence of first-degree murder presented at trial
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                   and that his counsel provided ineffective assistance at trial Thus, the
                   district court did not err in finding that Brown failed to make a showing of
                   actual innocence.
                                                   CONCLUSION
                                 We conclude that Brown is not entitled to relief in this appeal,
                   and we affirm the district court's order dismissing his untimely and
                   successive petition for a writ of habeas corpus. 11



                                                                                     ,
                                                                                         J.
                                                         Hardesty

                   We concur:



                                                    C. J.



                   e tchutAkp
                   Pickering
                                                    J.



                     ouut_02_96--0                  O.
                   Parraguirre


                                                    J.



                         11 1nlight of this disposition on appeal, we deny as moot the State's
                   motion for leave to file a response to Brown's notice of supplemental
                   authorities.



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10) 1947A    Cip
                 CHERRY, J., with whom SAITTA, J., agrees, dissenting:
                              I respectfully dissent. I believe that equity and fairness
                 require a different result. In carving out an equitable exception to the
                 cause requirement, Martinez recognized that the "right to the effective
                 assistance of counsel at trial is a bedrock principle in our justice
                 system. . . . Indeed, the right to counsel is the foundation for our
                 adversary system." 566 U.S. at , 132 S. Ct. at 1317. A post-conviction
                 petition for a writ of habeas corpus is a defendant's first and last chance to
                 assert a claim of ineffective assistance of trial counsel and thus is vital to
                 safeguarding a defendant's right to counsel at trial. Although the
                 appointment of post-conviction counsel currently is not required in
                 Nevada, I believe that indigent noncapital petitioners like Brown who
                 have been convicted of murder and are serving significant sentences,
                 should have the assistance of counsel in their first state post-conviction
                 petition.   See NRS 34.750(1) (indicating that a court may consider the
                 "severity of the consequences facing the petitioner" when deciding whether
                 to appoint post-conviction counsel). Once post-conviction counsel has been
                 appointed to represent such a petitioner, counsel should be effective. A
                 petitioner who has been convicted of murder and is facing a severe
                 sentence should not be denied the chance to litigate a meritorious claim of
                 ineffective assistance of trial counsel merely because his post-conviction
                 counsel failed to raise the claim in the initial post-conviction proceeding.
                 Thus, in these circumstances, I agree with amicus curiae NACJ that there
                 are compelling reasons to adopt the equitable exception from Martinez in
                 state habeas proceedings. Accordingly, I would reverse and remand for




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                the district court to determine whether Brown can demonstrate a
                substantial underlying ineffective-assistance-of-trial-counsel claim.




                I concur:


                                                J.




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