SUPREME COURT

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(0) 1947A 2 Appellant's reliance upon the Chambers decision was misplaced as Chambers did not announce any new proposition, but rather discussed and applied decisions entered previously. Specifically, the Chambers court discussed and applied the decision in Polk, which itself discussed this court's decision in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000). Because it is the substantive holdings in Polk andByford that appellant sought to apply in this case, it is those cases that provide the marker for filing timely claims and not the later case, Chambers, which merely discussed and applied those cases. Appellant's 2009 petition was filed almost two years after entry ofPolk and more than nine years after this court's decision in Byford. Under these circumstances, appellant failed to demonstrate good cause for the entire length of his delay.

Appellant's reliance upon the Byford decision is further misplaced. TheByford decision addressed use of an instruction discussed in Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992), a case decided by this court six years after appellant was convicted. The Kazalyn instruction was not used in appellant's trial. Even assuming, without deciding, that the instructions given in appellant's trial were similar to the Kazalyn instruction, appellant cannot demonstrate error as use of the instruction would not have been error in this case because appellant's conviction was final before this court's decision that the Kazalyn instruction should not be given. See Nika v. State, 124 Nev. 1272, 1284- 85, 198 P.3d 839, 848 (2008); see also Griffith V. Kentucky, 479 U.S. 314, 322-23 (1987) (discussing that new rules are applied to criminal cases that are pending on direct appeal and, therefore, not yet final).

Further, this court concluded on direct appeal that there was overwhelming evidence of appellant's "involvement in the planning,we

Douglas

SUPREME COURT

OF NEVADA
(0) 1947A 3 Saitta ORDER the judgment of the district court AFFIRMED.

ERRORS execution and cover-up of the murder." Yates, 103 Nev. at 206, 734 P.2d at 1256. Therefore, appellant fails to demonstrate actual prejudice related to the deliberation and premeditation instructions. Accordingly, the district court did not err in concluding that appellant failed to overcome the procedural bars.

Second, appellant argues he has good cause because he does not have legal training, relies on fellow prisoners for legal assistance, and has lost legal paperwork while incarcerated. This fails to demonstrate good cause for filing an untimely post-conviction petition as appellant fails to demonstrate his claims could not have been raised in a timely manner. See Phelps v. Dir., Nev. Dep't of Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988) (holding that petitioner's claim of organic brain damage, borderline mental retardation and reliance on assistance of inmate law clerk unschooled in the law did not constitute good cause for the filing of a successive post-conviction petition).

Finally, appellant fails to overcome the presumption of prejudice to the State because he failed to demonstrate a fundamental miscarriage of justice. See NRS 34.800(1)(b). Therefore, the district court did not err in dismissing the petition as procedurally barred. Accordingly,

J.

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EIBEN 

### cc: Hon. Elliott Sattler, II, District Judge Mary Lou Wilson Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk

SUPREME COURT

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(0) 1947A