Richardson (Lorne) v. State ( 2013 )

 of the writ as he raised claims new and different from those raised in his
previous petition. 3 See 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(3). Moreover, because the
State specifically pleaded laches, appellant was required to overcome the
rebuttable presumption of prejudice. See NRS 34.800(2).
Appellant first claimed the procedural bars should not apply
because this court disapproved of the natural-and-probable-consequences
doctrine regarding aiding and abetting in Mitchell v. State, 122 Nev. 1269,
149 P.3d 33 (2006), and that ruling came out after appellant filed his first
petition. The Mitchell case discussed and applied this court's conclusions
from Sharma v. State, 118 Nev. 648, 56 P.3d 868 (2002). 122 Nev. at
1275-1277, 149 P.3d at 37-38. As Sharma was issued prior to appellant's
first petition, the legal grounds for appellant's claim were available to be
raised in an earlier petition. Appellant also provided no explanation for
the delay from the issuance of the Mitchell decision in 2006. See
Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). In
addition, the Mitchell and Sharma cases had no bearing on appellant's
conviction because appellant was charged as the person who actually
stabbed the victims and not as an aider and abettor. Therefore, appellant
failed to overcome the procedural bars.
Next, appellant claimed it would be a fundamental
miscarriage of justice to apply the procedural bars because he is actually
innocent. In order to demonstrate a fundamental miscarriage of justice, a
3Richardson v. Warden, Docket No. 41296 (Order of Affirmance,
February 11, 2004).
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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 involve
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 as procedurally barred and barred by laches. Accordingly, we
ORDER the judgment of the district court AFFIRMED. 4
4We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
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cc: Hon. Abbi Silver, District Judge
Lorne Douglas Richardson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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