from those raised in his previous petition. 2 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). 

First, appellant, relying on the decisions in Sharma v. State, 

118 Nev. 648, 56 P.3d 868 (2002), and Bolden v. State, 121 Nev. 908, 124 

P.3d 191 (2005), argued he had good cause because he claimed these 

decisions were not available at the time he filed his first post-conviction 

petition. 3This claim is belied by the record. Sharma was decided in 2002, 

and Bolden was decided in 2005, and appellant did not file his first postconviction petition until June 23, 2006. Therefore, these claims were 

available to be raised in his first timely post-conviction petition. Further, 

appellant waited nearly three years after Bolden was decided and nearly 

six years after Sharma was decided to file these claims and failed to 

demonstrate good cause for the entire length of his delay. Therefore, the 

district court did not err in denying this claim. 

Next, appellant claimed that he was actually innocent because 

had he not received the jury instructions disapproved of in Sharma and 

Bolden, he would not have been convicted. Appellant's claim fell short of 

2See Duarte v. State, Docket No. 49279 (Order Affirming in Part, 

Reversing in Part, and Remanding, September 18, 2008); Duarte v. State, 

Docket No. 58643 (Order of Affirmance, June 13, 2012). 

3Appellant also argued that Mitchell v. State, 122 Nev. 1269, 149 

P.3d 33 (2006), provided good cause for filing his untimely petition. 

However, this case does not provide good cause because it only applied 

Sharma, and did not create new law or clarify existing law. 

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demonstrating actual innocence because it is a claim of legal innocence, 

not factual innocence, and appellant did not show that "it is more likely 

than not that no reasonable juror would have convicted him in light of. . . 

new evidence." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting 

Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini v. State, 117 

Nev. 860, 887, 34 P.3d 519, 537 (2001); Mazzan v. Warden, 112 Nev. 838, 

842, 921 P.2d 920, 922 (1996). Therefore, the district court did not err in 

denying this claim. 

Next, appellant claimed he was actually innocent because his 

codefendant provided an affidavit that stated appellant was not involved 

in the crime. Appellant did not demonstrate actual innocence because 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. The district court determined that appellant's codefendant 

was not credible because he was a convicted felon 45 times over and he 

was appellant's brother-in-law. We conclude that substantial evidence 

supports the decision of the decision court to deny this claim. See Riley v. 

State, 110 Nev. 638, 647, 878 P.2d 272, 278 (1994). Further, we note that 

the affidavit filed in support of the petition was not dated nor was it 

signed by appellant's co-defendant. Therefore, the district court did not 

err in denying this claim. 

Finally, appellant also appeared to argue he was actually 

innocent based on the location of the water bottle and the fact that a 

witness identified appellant's counsel as the driver of the vehicle rather 

than appellant. These claims have been previously litigated, see Duarte v. 

State, Docket No. 42256 (Order of Affirmance, June 15, 2005); Duarte v. 

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State, Docket No. 49279 (Order Affirming in Part, Reversing in Part, and 

Remanding, September 18, 2008), and the doctrine of law of the case 

prevents further litigation of these issues, see Hall v. State, 91 Nev. 315- 

16, 535 P.2d 797, 798-99 (1975). We therefore conclude that the district 

court did not err in denying appellant's petition, and we 

ORDER the judgment of the district court AFFIRMED. 

J. 

J. 

Douglas 

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efil 

Saitta 

cc: Hon. Jennifer P. Togliatti, District Judge 

Pedro Rafael Duarte 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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