FN

RS 34.810(1)(b)(2); NRS 34.810(2). Appellant's petition was procedurally 

arred absent a demonstration of good cause and actual prejudice. See 

RS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3). Good cause must be an 

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impediment external to the defense and may be demonstrated when the 

factual basis for a claim was not reasonably available to be raised in a 

timely petition. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 

506 (2003). 

Moreover, because the State specifically pleaded laches, 

appellant was required to overcome the rebuttable presumption of 

prejudice. NRS 34.800(2). To overcome application of the procedural bars 

and the presumption of prejudice to the State, a petitioner must 

demonstrate a fundamental miscarriage of justice—a colorable showing of 

actual innocence. 3 Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 

(2001); Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). In 

order to demonstrate actual innocence, a petitioner must 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. 

Appellant claimed that new evidence that the victim had 

recanted her story provided good cause for his late and successive petition 

3Actual innocence serves as a gateway to litigate constitutional 

violations in an otherwise procedurally-barred petition. A freestanding 

claim of actual innocence is not permitted in a post-conviction petition for 

a writ of habeas corpus. See NRS 34.724(1). 

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nd that the new evidence demonstrated actual innocence sufficient to 

overcome application of the procedural bars. Appellant asserted that he 

learned in July 2012 that the victim had told Guillermina Castrejon and 

Carlos Garcia that appellant had never sexually abused the victim and 

hat she lied at trial because she wanted to marry appellant. Appellant 

indicated that the recantation was recorded and that supporting 

documents would be presented with the petition. However, no such 

documents were presented with the petition. The district court denied the 

petition without appointing counsel and without conducting an 

evidentiary hearing. 

Based upon our review of the record on appeal, we cannot 

affirm the decision of the district court to deny the petition without an 

evidentiary hearing. Appellant is entitled to an evidentiary hearing if he 

raised claims that, if true, would entitle him to relief and if his claims 

were not belied by the record. See Hargrove v. State, 100 Nev. 498, 503, 

686 P.2d 222, 225 (1984). Here, appellant made a specific, factual 

argument that the victim had told others that she was not sexually abused 

by appellant and that she lied at trial. The record does not belie 

appellant's claim that the victim recanted her story of sexual abuse and 

that he only learned of the recantation in July 2012. Given the nature of 

the offenses, the victim's testimony was critical to the State's case. 

Appellant may be able to demonstrate that it is more likely than not that 

no reasonable juror would have convicted him in light of the recantation, if 

in fact the victim has recanted her story. 

While appellant's argument that he was actually innocent has 

been previously rejected, Garcia v. State, Docket No. 53154 (Order of 

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Affirmance, February 4, 2010), the recantation claim in the instant 

etition is dissimilar enough to his prior actual-innocence claim of 

abricated testimony to withstand application of the doctrine of the law of 

he case. And while the district court correctly noted that appellant failed 

to provide his evidence of recantation with the petition, the post-conviction 

procedures set forth in NRS chapter 34 do not require affidavits be 

submitted with a petition and only require that a petitioner allege specific 

facts in support of the petition. See NRS 34.735 (setting forth the pleading 

requirements for a form petition). NRS 34.790 further allows the district 

court to direct the parties to expand the record with additional materials, 

including affidavits, relevant to the determination of the merits of the 

petition when an evidentiary hearing is required. Appellant's failure to 

provide the supporting documents with his petition is troubling, especially 

considering the fact that he asserts they are attached to the petition, but 

his failure is not a basis for determining an evidentiary hearing is not 

warranted. 

Accordingly, we reverse the decision of the district court to 

deny the petition without an evidentiary hearing and remand the matter 

to the district court to conduct an evidentiary hearing on the issue of the 

recantation and actual innocence. As a preliminary matter, the district 

court may require appellant to submit his supporting documents, and the 

district court may elect to hear testimony from appellant's witnesses and 

evaluate their credibility in order to determine the necessity of the victim's 

presence at any hearing. See NRS 34.790(4) (providing that the district 

court must require the authentication of any material submitted to expand 

the record). Given the complexities of litigating an actual-innocence 

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argument based on the alleged recantation of the victim and the 

significant sentence imposed, we direct the district court to appoint 

counsel to assist appellant in the post-conviction proceedings. See NRS 

34.750(1). Accordingly, we 

ORDER the judgment of the district court REVERSED AND 

REMAND this matter to the district court for proceedings consistent with 

this order. 

J. 

Hardesty 

Parraguirre 

014.2 

Cherry 

cc: Hon. Michael Villani, District Judge 

Jose Lopez Garcia 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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