raise claims that are supported by specific factual findings that are not 

belied by the record and, if true, would entitle him to relief). He further 

contends that even if he cannot demonstrate good cause to overcome the 

applicable procedural bars, the district court erred by denying his petition 

because the failure to consider it on the merits resulted in a fundamental 

miscarriage of justice. 

Procedural bars 

Because Castillo filed his petition ten years after the 

remittitur issued in his direct appeal, Castillo v. State, 114 Nev. 271, 956 

P.2d 103 (1998), the petition was untimely under NRS 34.726(1). The 

petition was also successive because he previously filed a post-conviction 

petition for a writ of habeas corpus, and it constituted an abuse of the writ 

as he raised claims new and different from those raised in his previous 

petition.' See NRS 34.810(1)(b)(2); 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(3). 

As cause to overcome the procedural default-rules, Castillo 

advances three arguments: (1) his first post-conviction counsel was 

ineffective; (2) the inconsistent and discretionary application of procedural 

bars prohibits their use to deny him relief; and (3) any delay was not his 

fault. 

Ineffective assistance of first post-conviction counsel 

'Castillo v. State, Docket No. 40982 (Order of Affirmance, February 

5, 2004). 

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Castillo argues that the district court erred by denying his 

petition as procedurally barred because his first post-conviction counsel 

was ineffective for failing to adequately investigate mitigation evidence 

presented at the penalty phase. While post-conviction counsel's 

ineffectiveness may constitute good cause to file claims in an untimely and 

successive petition, those claims are subject to NRS 34.726(1), State v. 

Eighth Judicial District Court (Riker), 121 Nev. 225, 235, 112 P.3d 1070, 

1077 (2005); Pellegrini v. State, 117 Nev. 860, 869-78, 34 P.3d 519, 525-31 

(2001), and must be raised within a reasonable time after they become 

available, Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 

(2003). Here, Castillo's post-conviction-counsel claims became available, 

at the latest, once this court resolved the appeal from the denial of his first 

post-conviction petition. Yet, he waited nearly five years after the 

remittitur issued from that appeal to file the instant petition. Therefore, 

his claims of ineffective assistance of post-conviction counsel are 

procedurally barred and cannot serve as good cause for the delay in filing 

his petition. See Stewart v. LaGrand, 526 U.S. 115, 120 (1999) (concluding 

that ineffective-assistance-of-counsel claim failed as good cause because 

the ineffective-assistance claim was itself procedurally defaulted); 

Hathaway, 119 Nev. at 252, 71 P.3d at 506 ("[T]o constitute adequate 

cause, the ineffective assistance of counsel claim itself must not be 

procedurally defaulted."); Riker, 121 Nev. at 235, 112 P.3d at 1077; 

Pellegrini, 117 Nev. at 869-70, 34 P.3d at 526. Therefore, the district court 

did not err in denying this claim without an evidentiary hearing. 

Challenge to the application of the procedural bars 

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Castillo argues that the district court erred by denying his 

post-conviction petition as procedurally barred because the default rules 

are discretionary and this court inconsistently applies them. Contrary to 

Castillo's argument, we have held that procedural-default rules are 

mandatory, see Clem v. State, 119 Nev. 615, 623 n.43, 81 P.3d 521, 527 

n.43 (2003); Pellegrini, 117 Nev. at 886, 34 P.3d at 536, and have rejected 

claims that we have discretion to ignore them, Riker, 121 Nev. at 236, 238- 

39, 112 P.3d at 1077, 1079. Similarly, we have rejected claims that we 

inconsistently apply procedural default rules. Id. at 236, 112 P.3d at 1077. 

Even assuming any inconsistent application, we have rejected claims that 

any prior inconsistency excuses procedural default in other cases. Id. 

Therefore, the district court did not err in denying this claim without an 

evidentiary hearing. 

Fault 

Castillo argues that the district court erred by denying his 

petition as procedurally barred because NRS 34.726 does not apply to him, 

as the delay in filing the petition was not his fault but rather counsel's. In 

this, he contends that the plain language of NRS 34.726(1) evinces the 

Legislature's intent that petitioner himself must act or fail to act to cause 

delay. We reject Castillo's interpretation. We have held that NRS 34.726 

requires "a petitioner [to] show that an impediment external to the 

defense prevented him or her from complying with the state procedural 

default rules." Hathaway, 119 Nev. at 252, 71 P.3d at 506. This language 

contemplates that the delay in filing a petition must be caused by a 

circumstance not within the actual control of the defense team as a whole, 

not solely the defendant. Accepting Castillo's interpretation ascribes a 

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meaning to this statute not contemplated by the Legislature and would 

eviscerate NRS 34.726—as long as the defendant is represented by counsel 

(appointed or retained), the defendant would have good cause to file an 

untimely petition. Moreover, even if we accepted Castillo's construction of 

NRS 34.726(1), he waited nearly five years after this court resolved his 

appeal concerning his first post-conviction petition to file the instant 

petition, and the only explanation for the delay is that he was seeking 

relief in federal court. The election to go to federal court prior to pursuing 

state remedies does not provide good cause to excuse the procedural bars. 

See Colley v. State, 105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989). 

Further, Castillo's claim that Colley should not apply to him 

because he suffers from neurological and psychological disorders is not 

persuasive for two reasons. First, Castillo filed his prior petition in proper 

person, and he fails to demonstrate why his alleged neurological and 

psychological disorders prevented him from filing his second petition in 

the same manner. Second, Castillo has been continuously represented by 

counsel since at least 2004, and he fails to demonstrate how his alleged 

neurological and psychological disorders prevented counsel from filing the 

petition in a timely manner. Therefore, the district court did not err in 

denying this claim without an evidentiary hearing. 

Fundamental miscarriage of justice 

Castillo argues that even if he cannot demonstrate good cause 

to overcome the procedural bars, the district court's failure to consider his 

post-conviction petition on the merits resulted in a fundamental 

miscarriage of justice because he is actually innocent of first-degree 

murder under this court's decision in Byford v. State, 116 Nev. 215, 994 

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P.2d 700 (2000), regarding the first-degree murder instruction. 2We 

disagree. In Byford, this court disapproved of the commonly-known 

Kazalyn 3 instruction and provided the district courts with instructions to 

use in the future. Id. at 233-37, 994 P.2d at 712-15. However, we 

concluded in Nika v. State, that Byford does not apply to cases that were 

final when it was decided. 124 Nev. 1272, 1276, 198 P.3d 839, 842 (2008). 

Castillo's conviction was final before Byford was decided and therefore 

Byford does not apply. 

Castillo acknowledges Nika but argues that the decision 

ignores the constitutional vagueness arguments attendant to the Kazalyn 

instruction and failed to determine whether Byford should apply 

retroactively as a substantive rule of criminal law. We disagree. Until 

Byford, this court consistently upheld the Kazalyn instruction and rejected 

constitutional challenges similar to Castillo's. Byford did not alter the law 

in effect when Castillo'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. 

2Castillo also appears to argue that it would be a fundamental 

miscarriage of justice if this court did not consider his claim that if the 

additional mitigation evidence presented in the post-conviction 

proceedings had been presented at trial, the jury would have concluded 

that the mitigation evidence would have outweighed the aggravating 

circumstances and he would not have been sentenced to death. However, 

this claim is conclusory and not sufficiently developed to warrant relief. 

Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987). 

3Kazalyn v. State, 108 Nev. 67, 75, 825 P.2d 578, 583 (1992). 

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Further, Castillo's claim that the use of the Kazalyn 

instruction in this case resulted in a fundamental miscarriage of justice 

because the jury would have found him guilty of second-degree murder 

rather than first-degree murder lacks merit. 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, 117 Nev. at 887, 34 P.3d at 537; Calderon v. Thompson, 523 

U.S. 538, 559 (1998). Castillo's claim relating to the jury instructions is 

not a claim regarding factual innocence and he fails to demonstrate that, 

had the jury not received the Kazalyn instruction, "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)); accord Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 

920, 922 (1996). Beyond those hurdles to his actual-innocence claim, the 

underlying idea that Castillo would not have been convicted of first-degree 

murder but for the Kazalyn instruction is fundamentally flawed. Castillo 

was charged with first-degree murder based on two theories; that the 

murder was committed in the perpetration or attempted perpetration of 

two felonies (burglary and robbery) and that the murder was willful, 

deliberate, and premeditated. The evidence supported a conclusion that 

Castillo murdered Berendt during the perpetration of a burglary and 

robbery, and he was convicted of burglary and robbery. The evidence also 

supported a finding that the murder was premeditated and deliberate—

Castillo entered Berendt's home with a tire iron, hit the sleeping 86-yearold woman with the tire iron, and then smothered her with a pillow. 

Because there was substantial evidence that Castillo was guilty of first7 
J. 

degree murder under both the felony-murder theory and premeditation 

theory, he could not demonstrate even legal innocence based on the 

Kazalyn instruction. Therefore, the district court did not err in denying 

this claim without an evidentiary hearing. Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 4 

A 

Pickering 

L7 , C.J. 

tfat...4.41 , J. 

Hardesty 

troisot 

Parraguirre 

4The Honorable Nancy Saitta voluntarily recused herself from 

participation in the decision of this matter. 

8 
cc: Hon. David B. Barker, District Judge 

Federal Public Defender/Las Vegas 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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