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 claimed that this court's decision in Nika v. State, 124 Nev. 1272, 198 P.3d 839 (2008), provided good cause to raise hisclaim that he received a flawed jury instruction on the elements of firstdegree murder because the jury was given the Kazalyn instruction on premeditation. Kazalyn v. State, 108 Nev. 67, 75-76, 825 P.2d 578, 583-84 (1992), receded from by Byford v. State, 116 Nev. 215, 235, 994 P.2d 700, 713-14 (2000). Even assuming Nika provided good cause when that decision was issued, appellant failed to excuse the entire delay because he waited approximately four years from the Nika decision before he filed this petition. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). Further, appellant failed to demonstrate actual prejudice. This court concluded on direct appeal that there was sufficient evidence for appellant's murder conviction under the felony-murder rule. Garner,116 Nev. at 782, 6 P.3d at 1021. Therefore, appellant cannot demonstrate prejudice related to the premeditation instruction.

Second, appellant claimed that the prison's law library was inadequate and the inadequacies caused the delay in raising his current claims. Appellant asserted he has been actively litigating his case in federal court and has previously litigated two post-conviction petitions for a writ of habeas corpus in Nevada state court. Appellant's prior petitions indicate adequate access to the prison library, and thus he failed to demonstrate official interference caused him to be unable to comply with the procedural bars. See Hathaway, 119 Nev. at 252, 71 P.3d at 506. Moreover, appellant failed to demonstrate that inadequate law libraries or

SUPREME COURT OF NEVADA

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J. inadequate assistance from legally trained persons caused a lack of meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817, 828 (1977), limited by Lewis v. Casey, 518 U.S. 343 (1996). Therefore, the district court did not err in concluding that appellant failed to overcome the procedural bars.

Next, appellant claimed the procedural bars should not apply because he is actually innocent. 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 v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001); Calderon v. Thompson, 523 U.S. 538, 559 (1998). Appellant did not demonstrate actual innocence as all of his claims involved legal innocence, and therefore, 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 (quotingSchlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini, 117 Nev. at 887, 34 P.3d at 537; Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). Therefore, the district court did not err in denying the petition as procedurally barred. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Saitta

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### cc: Hon. Michelle Leavitt, District Judge Tyrone Lafayette Garner Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

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OF NEVADA

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