Moore (James) v. State ( 2014 )

 petition was procedurally barred absent a demonstration of good cause
and actual prejudice. See NRS 34326(1); NRS 34.810(1)(b); NRS
34.810(3). Moreover, because the State specifically pleaded laches,
appellant was required to overcome the rebuttable presumption of
prejudice. NRS 34.800(2).
First, appellant claimed he had good cause because he recently
discovered that there is no statute that specifically makes attempted
robbery with the use of a deadly weapon a crime This claim was
reasonably available to be raised in a timely petition and appellant failed
to demonstrate that an impediment external to the defense precluded him
from raising this claim in a timely manner See Hathaway v. State, 119
Nev. 248, 252, 71 P.3d 503, 506 (2003). Appellant also fails to
demonstrate actual prejudice for this claim because attempted robbery
with the use of a deadly weapon is a crime by application of NRS 193.165,
NRS 193.330, and NES 200.380.
Second, appellant claimed that he was actually innocent of
attempted robbery with the use of a deadly weapon because the legislature
had not enacted a statute that caused it to be a crime. 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);
. . continued
December 9, 2010); Moore v. State, Docket No. 57969 (Order of Affirmance
July 13, 2011). Appellant also filed a post-conviction petition for a writ of
habeas corpus in the district court on February 10, 2012, but he did not
appeal the denial of that petition.
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Calderon v. Thompson, 523 U.S. 538, 559 (1998). Appellant did not
demonstrate actual innocence as his claim 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).
Finally, appellant failed to overcome the presumption of
prejudice to the State. Therefore, the district court did not err in denying
the petition. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Pickering
Saitta
cc: Hon. Elissa F. Cadish, District Judge
James Lamont Moore
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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