denied the motion as procedurally barred. Appellant's motion was filed more than twelve years after issuance of the remittitur on direct appeal on July 9, 2001. Sutton v. State, Docket No. 34165 (Order of Affirmance, June 11, 2001). Thus, appellant's motion was untimely filed. See NRS 34.726(1). Moreover, appellant's motion was an abuse of the writ as he raised claims new and different from those raised in his previous petitions. 2 See NRS 34.810(2). Appellant's motion was procedurally barred absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(3).

Appellant claimed that the procedural bars did not apply because he suffered from a fundamental miscarriage of justice. 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); Calderon v. Thompson, 523 U.S. 538, 559 (1998). Appellant did not demonstrate actual innocence as his claims involved legal innocence and appellant failed to demonstrate that they were based upon newly discovered evidence. Therefore, appellant 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).

2Sutton v. State, Docket No. 40477 (Order of Affirmance, July 8, 2004); Sutton v. State, Docket No. 53466 (Order of Affirmance, January 12, 2010); Sutton v. State, Docket No. 64244 (Order of Affirmance, June 11, 2014).

SUPREME COURT OF NEVADA (0) 19474 Because the district court did not err in denying the motion, we ORDER the judgment of the district court AFFIRMED.

Hardesty

J.

Douglas

cc: Hon. Jennifer P. Togliatti, District Judge Kevin Devon Sutton Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA (0) 1947A efe.