v. State, 110 Nev. 349, 359, 871 P.2d 944, 950 (1994). The district court 

denied the Lozada petition, and this court upheld the judgment, Lancaster 

v. Warden, Docket No. 51446 (Order of Affirmance and Limited Remand to 

Correct the Judgment of Conviction, October 26, 2009). Appellant filed 

the instant post-conviction petition on August 2, 2011. Because appellant 

filed his petition more than 8 years after the entry of the judgment of 

conviction, the petition was untimely under NRS 34.726. It also was 

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). If appellant 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 appellant is "actually innocent of the crime." 

Id. He "must show that it is more likely than not that no reasonable juror 

would have convicted him absent a constitutional violation." Id. In this 

context, actual innocence means "factual innocence, not mere legal 

insufficiency." Mitchell v. State, 122 Nev. 1269, 1273-74, 149 P.3d 33, 36 

(2006) (internal quotation marks and citation omitted). 

As good cause to overcome the procedural bars, appellant 

argues that counsel was ineffective on a number of grounds, including that 

counsel had a conflict of interest based on counsel's alleged agreement 

with the victim's family members to prevent the victim's appearance at 

court appearances in exchange for payment. While an ineffectiveassistance-of-counsel claim may excuse a procedural default, "the 

ineffective assistance of counsel claim itself must not be procedurally 

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defaulted." Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). 

Because appellant's claims of ineffective assistance of counsel are 

untimely, they cannot serve as good cause for the delay in filing his 

petition and he has not explained why he could not have raised those 

claims in his prior post-conviction petition. Appellant also argues that his 

physical and mental health issues establish good cause for the delay in 

filing his petition. However, he has not explained how those matters 

prevented him from filing his petition for 8 years after the filing of the 

judgment of conviction. We therefore conclude that the district court did 

not err by denying his post-conviction petition as procedurally barred 

without conducting an evidentiary hearing on his good-cause claims.' 

Appellant next argues that he is actually innocent because his 

physical limitations precluded him from becoming sexually aroused and 

therefore he could not have committed his crimes. Because appellant 

pleaded guilty, he must demonstrate not only that he is factually innocent 

of the charges to which he pleaded guilty but also that he is factually 

innocent of any more serious charges forgone in the plea bargaining 

process. Bousley v. United States, 523 U.S. 614, 623-24 (1998). Appellant 

does not address actual innocence relative to any charges relinquished by 

the State during negotiations. Nevertheless, we conclude that his claim 

lacks merit because the offense of lewdness with a child does not require 

'To the extent appellant argues that NRS 34.726 should be subject 

to equitable tolling, we reject that argument because the plain language of 

that statute provides that a petitioner must demonstrate good cause for a 

delay in filing a post-conviction petition and that good cause may exist if 

he demonstrates that the delay was not his fault and prejudice. See NRS 

34.726(1)(a), (b). 

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Parraguirre '41 Cherry 

that the criminal act arouse the defendant. See NRS 201.230(1) (requiring 

the criminal act was committed "with the intent of arousing, appealing to, 

or gratifying the lust or passions or sexual desires of that person or of that 

child"). Accordingly, we conclude that the district court did not err by 

denying his claim of actual innocence without conducting an evidentiary 

hearing. 2 

Having considered appellant's arguments and concluded that 

they lack merit, we 

ORDER the judgment of the district court AFFIRMED. 

(c:L. 

Hardesty 

cc: Hon. Jerome Polaha, District Judge 

Karla K. Butko 

Attorney General/Carson City 

Washoe County District Attorney 

Washoe District Court Clerk 

2To the extent appellant argues that trial counsel's ineffective 

assistance establishes actual innocence, his claim lacks merit as the actual 

innocence exception requires him to show that he is factually innocent of 

the crimes charged, see Mitchell, 122 Nev. at 1273-74, 149 P.3d at 36, and 

his ineffective-assistance-of counsel claims make no such showing. 

, J 

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