Allen (Brian) v. State

NRS 34.726(1); NRS 34.810(3). A petitioner may be entitled to review of defaulted claims if failure to review the claims would result in a fundamental miscarriage of justice. Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). In order to demonstrate a fundamental miscarriage of justice, a petitioner must make a colorable showing of actual innocence of the crime. Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). Appellant's claim that new case law, knowledge and information excused his procedural defaults was insufficient as he failed to provide any facts or specific arguments identifying the new case law, knowledge or information or explain how these excused his fourth late petition. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). To the extent that appellant claimed that a fundamental miscarriage of justice should overcome application of the procedural bars, appellant did not demonstrate actual innocence because 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 v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini, 117 Nev. at 887, 34 P.3d at 537; Mazzan, 112 Nev. at 842, 921 P.2d at 922. We therefore conclude that the district court did not err in dismissing appellant's petition. Accordingly, we ORDER the judgment of the district court AFFIRMED.

Pickering

Picht tue r J.

J. j'

Parraguirre Saitta SUPREME COURT

OF

NEVADA (C11 1947A cc: Hon. Brent T. Adams, District Judge

Brian Lee Allen

Attorney General/Carson City

Washoe County District Attorney

Washoe District Court Clerk

SUPREME COURT

OF

NEVADA (0) 1947A ses.