from those raised in his previous petition. 2See 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).

3 Appellant 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.

SUPREME COURT OF NEVADA

(0) 1947A 2demonstrating 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.

SUPREME COURT OF NEVADA

(0) 1947A 3State, 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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