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 his 

claim 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 

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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 

(quoting Schlup 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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