NRS 34.726(1). To the extent that the petition raised the same claims 

that were raised in prior petitions, the petition was successive. NRS 

34.810(2). The petition was therefore procedurally barred absent a 

demonstration of good cause and prejudice. NRS 34.726(1); NRS 

34.810(1)(b), (3). 

As cause to overcome the procedural default rules, Wilson 

contends that: (1) his guilty plea was invalid as it was premised on an 

understanding of first-degree murder that was held invalid by Byford v. 

State, 116 Nev. 215, 994 P.2d 700 (2000); (2) his prior counsel were 

ineffective; and (3) the inconsistent and discretionary application of 

procedural bars prohibits the use of procedural bars to deny him relief. 

Validity of guilty plea 

Wilson argues that his guilty plea was invalid because it was 

premised on an understanding of the elements of first-degree murder as 

described by the Kazalyn instruction,' which this court held was erroneous 

under Byford, 116 Nev. 215, 994 P.2d 700. He asserts that the Ninth 

Circuit Court of Appeals' decision in Polk u. Sandoval, 503 F.3d 903 (9th 

Cir. 2007), provided a basis for this court to revisit this claim. 

In Byford, we disapproved of the Kazalyn instruction 

regarding the mens rea required for a first-degree murder conviction 

based on willful, deliberate, and premeditated murder, and provided the 

district courts with instructions to use in the future. Byford, 116 Nev. at 

233-37, 994 P.2d at 712-15. In Nika v. State, 124 Nev. 1272, 1301, 198 

P.3d 839, 859 (2008), we concluded that Byford does not apply to cases 

that were final when it was decided. Wilson's conviction was final roughly 

17 years before Byford was decided and therefore Byford does not apply. 

i-Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992), prospectively 

modified by Byford, 116 Nev. at 236-37, 994 P.2d at 714. 

SUPREME COURT 

OF 

NEVADA 2 

(0) 1947A 
SUPREME Count 

OF 

NEVADA 

Wilson acknowledges Nika but argues that the decision 

ignores the constitutional vagueness concerns attendant to the Kazalyn 

instruction and fails to determine whether Byford should apply 

retroactively as a substantive rule of criminal law. He asserts that this 

court should overrule Nika and adopt the Ninth Circuit's analysis in Polk. 

Neither argument warrants relief Until Byford, this court consistently 

upheld the Kazalyn instruction and rejected constitutional challenges 

similar to this one. Byford did not alter the law in effect when Wilson's 

conviction became final; rather, it changed the law prospectively. And 

because that change concerned a matter of state law, the Byford decision 

did not implicate federal constitutional concerns. Further, the Ninth 

Circuit's recent decision in Babb v. Lozowsky, 719 F.3d 1019, 1029-30 (9th 

Cir. 2013), cert. denied, U .S. , 134 S. Ct. 526 (2013), disapproved of 

Polk, and noted its effective overruling by Nika. Accordingly, Wilson 

cannot demonstrate that a continued adherence to the prior ruling would 

work a manifest injustice in this case. 

Ineffective assistance of prior counsel 

Wilson contends that the district court erred in denying his 

petition as procedurally barred because the ineffective assistance of prior 

counsel provided him with good cause to excuse the procedural bars. He 

asserts that his appellate and post-conviction counsel failed to challenge 

the definition of premeditation. We disagree. Wilson failed to explain how 

appellate and post-conviction counsels' alleged deficiencies precluded him 

from filing his fourth petition until over 25 years after the resolution of his 

direct appeal and over 9 years after the order affirming the district court's 

denial of his first post-conviction petition. See Hathaway v. State, 119 

Nev. 248, 252-53, 71 P.3d 503, 506 (2003) ("Irk constitute adequate cause, 

the ineffective assistance of counsel claim itself must not be procedurally 

defaulted."); see also Edward v. Carpenter, 529 U.S. 446, 452-53 (2000) 

3 

(0) L947A 
SUPREME COURT 

OF 

NEVADA 

(concluding that procedurally defaulted claim of ineffective assistance of 

counsel cannot serve as cause for another procedurally defaulted claim). 

To the extent Wilson contends that any procedural default should be 

excused due to second and third post-conviction counsel's ineffective 

assistance, he was not entitled to the effective assistance of second and 

third post-conviction counsel. See Crump v. Warden, 113 Nev. 293, 303, 

934 P.2d 247, 253 (1997) (stating that "petitioner who has counsel 

appointed by statutory mandate is entitled to the effective assistance of 

that counsel"); NRS 34.820(1) (requiring appointment of counsel to 

represent capital petitioner on first petition). Therefore, counsel's 

ineffectiveness, if any, did not excuse the procedural default. 

Inconsistent application of procedural bars 

Wilson argues that the district court erred by relying upon 

procedural-default rules because this court applies them inconsistently 

and in its discretion. We have repeatedly rejected this argument, see, e.g., 

State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 236, 112 P.3d 

1070, 1077 (2005); Pellegrini v. State, 117 Nev. 860, 886, 34 P.3d 519, 536 

(2001), and reject it here as well. 

Fundamental miscarriage of justice 

When a petitioner cannot demonstrate good cause, the district 

court may nevertheless excuse a procedural bar if the petitioner 

demonstrates that failing to consider the petition would result in a 

fundamental miscarriage of justice. Pellegrini, 117 Nev. at 887, 34 P.3d at 

537. A fundamental miscarriage of justice requires "a colorable showing' 

that the petitioner "is actually innocent of the crime or is ineligible for the 

death penalty." Id. When claiming a fundamental miscarriage based on 

ineligibility for the death penalty, the petitioner "must show by clear and 

convincing evidence that, but for a constitutional error, no reasonable 

juror would have found him death eligible." Id. 

4 

(0 1947A 
Wilson asserts that he is actually innocent of the death 

penalty. He contends that the felony aggravating circumstances are 

invalid under McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004), and 

the pecuniary-gain aggravating circumstance is improperly based on the 

same facts as one of the felony aggravating circumstances (robbery) in 

violation of Lane v. State, 114 Nev. 299, 956 P.2d 88 (1998). He asserts 

that there was a reasonable probability that he would not have been 

sentenced to death absent these aggravating circumstances. 

We conclude that Wilson is not entitled to relief for two 

reasons. First, Wilson did not raise a claim of actual innocence related to 

the penalty phase of trial in his petition below. Accordingly, we will not 

address this argument on appeal. See Davis v. State, 107 Nev. 600, 606, 

817 P.2d 1169, 1173 (1991) (noting that this court need not consider •

arguments raised on appeal that were not presented in the district court 

in the first instance), overruled on other grounds by Means v. State, 120 

Nev. 1001, 103 P.3d 25 (2004). Second, Wilson raised this argument in his 

third post-conviction petition and this court concluded that it was without 

merit. Wilson IV, 127 Nev. at n.3, 267 P.3d at 61-62, 63 n.3; see 

Wickliffe v. Sunrise Hosp., Inc., 104 Nev. 777, 780, 766 P.2d 1322, 1324 

(1988) ("When an appellate court states a principle or rule of law 

necessary to a decision, the principle or rule becomes the law of the case 

and must be followed throughout its subsequent progress, both in the 

lower court and upon subsequent appeal."). While this court has the 

discretion to "revisit the wisdom of its legal conclusions when it 

SUPREME COURT 

OF 

NEVADA 

determines that further discussion is warranted," Pellegrini, 117 Nev. at 

885, 34 P.3d at 535-36, and may 'depart from [its] prior holdings only 

where [it] determine[s] that they are so clearly erroneous that continued 

adherence to them would work a manifest injustice,' Tien Fu Hsu v. Cnty. 

of Clark, 123 Nev. 625, 631, 173 P.3d 724, 729 (2007) (quoting Clem v. 

5 

(0) 1947A 
Gibbons 

et_,LA 

Parraguirre 

( , J. 

J. 

State, 119 Nev. 615, 620, 81 P.3d 521, 525 (2003)), Wilson has not cited 

any authority decided since the denial of his last petition that necessitates 

a departure from our prior holding 

Having considered Wilson's arguments and concluded that no 

relief is warranted, we 

ORDER the judgment of the district court AFFIRMED. 2 

A—Lt 

Hardesty 

ta-E 

Douglas 

Saitta 

cc: Hon. Elliott A. Sattler, District Judge 

Boies, Schiller & Flexner, LLP 

Attorney General/Carson City 

Washoe County District Attorney 

Washoe District Court Clerk 

2The Honorable Kristina Pickering, Justice, voluntarily recused 

herself from participation in this matter. 

SUPREME COURT 

OF 

NEVADA 6 

(0) 1947A