SUPREME COURT 

OF 

NEVADA 

1131 Nev., Advance Opinion 94, 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

DEMARLO ANTWIN BERRY, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 66474 

FLED 

DEC 2 2015 

TRACE K LINDEMAN 

CLERK OF SUPREME COURT 

ay • ‘` 

DEPUTY CLERK 

Appeal from a district court order dismissing a postconyiction 

petition for writ of habeas corpus. Eighth Judicial District Court, Clark 

County; Michael Villani, Judge. 

Reversed and remanded. 

Weil & Drage, APC, and John T. Wendland, Henderson; Richards Brandt 

Miller Nelson and Lynn S. Davies, Craig C. Coburn, Joel K. Kittrell, and 

Steven H. Bergman, Salt Lake City, Utah, 

for Appellant. 

Adam Paul Lank, Attorney General, Carson City; Steven B. Wolfson, 

District Attorney, and Christopher F. Burton, Deputy District Attorney, 

Clark County, 

for Respondent. 

BEFORE SAITTA, GIBBONS and PICKERING, JJ. 

OPINION 

By the Court, PICKERING, J.: 

Demarlo Berry appeals from an order dismissing his third 

postconviction petition for a writ of habeas corpus. The district court 

dismissed Berry's petition as procedurally barred, without allowing 

discovery or conducting an evidentiary hearing. Berry supported his 

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petition with declarations under penalty of perjury that, if true, may 

establish a gateway claim of actual innocence. We conclude that the 

district court improperly discounted the declarations offered in support of 

Berry's petition, which were sufficient in form and content to merit 

discovery and an evidentiary hearing on Berry's gateway actual innocence 

claim. We therefore reverse and remand. 

I. 

A. 

Shortly after 8 p.m. on April 24, 1994, Charles Burkes was 

murdered in the course of a robbery at the Carl's Jr. fast-food restaurant 

in Las Vegas where Burkes worked as a manager. On that night, an 

African-American male entered the Carl's Jr., went behind the front 

counter, and pulled a gun on the cashier, Rae Metz, demanding that she 

open the cash registers. As Metz started to comply, the robber passed 

behind her and she escaped out a side door. Outside, Metz encountered 

another Carl's Jr. employee, who was on a cigarette break. The two ran to 

a nearby bar, the Long Branch Saloon, to call 9-1-1. They then left the 

bar, followed by several bar patrons. The group saw a man come out of the 

Carl's Jr., who brandished a gun at them, jumped the low wall separating 

the Carl's Jr. parking lot from the Blue Angel Motel parking lot next door, 

and got into a waiting black Cadillac, which drove off. 

Burkes was found lying face-down near the rear of the Carl's 

Jr. He died from a single gunshot wound through the back of his left 

shoulder. Two shots were heard by an employee who had gone into the 

restroom to hide while the crime was in progress. Burkes's autopsy 

recovered a single .357 or .38 caliber projectile. A second projectile, 

matching that recovered during the autopsy, was found on the floor near 

the safe. 

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In April of 1994, when the murder occurred, appellant 

Demarlo Berry was 18 years old, weighed 140 to 145 pounds, and was 5'8" 

or 5'9" tall. Six of the eyewitnesses the police interviewed immediately 

after the crime—including Metz who had the best, although most 

terrifying look at him—described the man they believed to be the 

perpetrator as between 5'10" and 6' tall and weighing 175 to 200 pounds. 

Another eyewitness, who had had approximately 12 beers that night, 

described the man he saw run away as 5'6" tall. 

The police received phone calls providing information about 

possible culprits, and eventually Berry became a suspect. The police 

created a photographic lineup that included a picture of Berry and showed 

it to Metz and three other eyewitnesses. Metz positively identified Berry; 

the others were less committal but stated that his picture resembled that 

of the perpetrator. Their certainty grew over time, and by trial, each 

identified Berry as the perpetrator, as did a fifth eyewitness. 

The police had difficulty locating Berry, who before the crime 

had been a regular customer at the Carl's Jr. and was often seen hanging 

out by the Long Branch Saloon. When they found Berry, he was 

uncooperative. Berry was arrested and at some point briefly shared a 

holding cell with a number of other arrestees, including a man named 

Richard Iden. Iden had been arrested in Ohio, where he was attending to 

his critically ill father, and brought back to Nevada to face bad-check 

charges dating back to 1990. Iden testified for the State at Berry's trial, 

stating that, while the two were in the holding cell together, Berry 

confessed to him that he had committed the robbery/murder at the Carl's 

Jr. 

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Iden had been employed by the Sheriffs Office in Knox 

County, Ohio, before becoming addicted to crack cocaine and resorting to 

theft and crimes of deception to finance his habit. He was cross-examined 

extensively at trial about his criminal history and the timing and details 

of the plea deal he received, by which he was given probation despite his 

numerous convictions. Iden was also examined about the inconsistencies 

in his accounts of Berry's confession—first, he told police that Berry told 

him that he and two others robbed "this guy," possibly at a restaurant, 

and killed him when he failed to cooperate; in a second statement, Iden 

said Berry told him that he and two others murdered the "assistant 

manager" while robbing "the Carl's Jr. on the corner of Eastern and 

Freemont Street," as another person stayed outside, and he alleged that 

Berry said he was facing Burkes when he shot him; finally, at trial, Iden 

could not recall if Berry stated the crime occurred at a restaurant. These 

details conflict with the eyewitness testimony, which reported two 

perpetrators—the gunman and the getaway driver—and the physical 

facts, which establish that Burkes was shot in the shoulder from the back, 

not facing his assailant. 

Berry testified in his own defense at trial. He denied any 

involvement in the crime, except as a witness. Specifically, Berry testified 

that he and a friend, Larry Walker, had been walking up and down 

Fremont Street that night selling drugs. They separated near the Blue 

Angel Motel, so Berry could go to the Carl's Jr. to get something to eat. As 

he neared the front door of the restaurant, he saw a man behind the 

counter who was not wearing a Carl's Jr uniform, and a scared-looking 

female employee, presumably Metz. Berry stayed outside to watch. The 

man and the woman left his view, and then he saw the man come out and 

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run away. Berry recognized the man as Steven "Sindog" Jackson, the 

leader of the San Bernardino Grips gang. Berry left the scene without 

giving a statement to the police and rejoined Walker. The pair watched 

the police activity from a distance and, roughly 40 minutes to an hour 

after the shooting, were approached by a K-9 officer who patted them 

down and asked if they knew what had happened. When Berry responded 

that they did not, the officer told them to go home. 

Berry denied confessing to Iden and disputed Iden's repeated 

assertions that he and Berry knew each other from 1990, when Iden 

testified he was in Las Vegas and bought drugs from Berry. Berry 

explained that he did not volunteer information about Jackson to the 

police, or cooperate with them initially, because he feared retaliation 

against him and his family by the Grips. Berry called a San Bernardino 

police officer at trial who testified that Jackson was the leader of the San 

Bernardino "Tre 57" Grips, and dangerous. 

Jackson's name also was reported to the police in the phone 

calls and tips they received after the crime. Like Berry, Jackson is 

African-American. At the time of the crime, he stood 6'0" and weighed 235 

pounds. The police created a separate photographic lineup that included a 

picture of Jackson—his picture was not in the photographic lineup that 

included Berry's picture—but they did not show the lineup with Jackson's 

picture to the eyewitnesses they showed Berry's photographic lineup to. 

The police explained that their information suggested Jackson was the 

getaway driver, not the gunman, and that they could not find the 

eyewitness who could have placed Jackson as the driver of the getaway 

car. Marriage license records confirmed that Jackson was in Las Vegas to 

get married several weeks before the crime occurred. 

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The police never found the murder weapon. They collected 32 

latent fingerprints and palm prints from the crime scene, none of which 

were a match for Berry's. On the second to last day of trial, the State 

presented a witness who had been asked during trial to attempt to 

compare Jackson's prints to those collected at the crime scene. While the 

comparison did not produce a match, this result was inconclusive because 

the examiner was working from fax copies and there was confusion over 

whether the set used for comparison purposes belonged to Jackson or 

Jackson's brother, "D-Dog," also a Crip. 

B. 

Berry was charged with burglary, robbery, and first-degree 

murder, with the use of a deadly weapon, and the State filed a notice of 

intent to seek the death penalty. After the guilt phase of the trial, the jury 

deadlocked 11-1. They did not report whether the 11-person majority 

favored conviction or acquittal. The State agreed to withdraw its notice of 

intent to seek the death penalty if Berry would stipulate to waive his right 

to a unanimous jury verdict as to guilt. He did, and the jury returned an 

11-1 verdict finding him guilty of all charges. A penalty phase followed as 

to whether Berry should receive life with, or life without, the possibility of 

parole, on which the jury again deadlocked. The district judge discharged 

the jury. Berry waived his right to have a three-judge panel decide his 

sentence on the murder charge in exchange for the State agreeing not to 

seek life without the possibility of parole. Berry was sentenced to 10 years 

on the burglary count, 15 years on the robbery count, and life with the 

possibility of parole for first-degree murder, the robbery and life sentences 

carrying equal and consecutive terms for the deadly weapon enhancement, 

and all running consecutively to each other. 

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Berry timely filed a notice of appeal. This court affirmed his 

conviction, Berry v. State, Docket No. 27585 (Order Dismissing Appeal, 

June 17, 1997), and the remittitur issued on February 9, 1998. There 

followed a timely postconviction petition for a writ of habeas corpus, in 

which Berry asserted his trial counsel had been ineffective in counseling 

him to stipulate to a non-unanimous verdict. The petition was denied, and 

the denial was affirmed on appeal to this court. Berry v. State, Docket No. 

35201 (Order of Affirmance, April 6, 2001). Acting pro se, Berry filed a 

second postconviction petition for a writ of habeas corpus on September 

17, 2008, asserting that he received a flawed jury instruction on the 

elements of first-degree murder under Kazalyn v. State, 108 Nev. 67, 825 

P.2d 578 (1992), a decision from which this court retreated in Byford v. 

State, 116 Nev. 215, 235, 994 P.2d 700, 713-14 (2000). The petition was 

denied, and this court again affirmed. Berry v. State, Docket No. 52905 

(Order of Affirmance, September 23, 2009). 

C. 

In 2005, an investigator working on Berry's behalf contacted 

Steven "Sindog" Jackson in prison in California, attempting 

unsuccessfully to secure a confession from him. In 2011, Berry contacted 

the Rocky Mountain Innocence Center (RMIC), which in 2012 agreed to 

take his case. On May 2, 2014, Berry filed his third postconviction 

petition for a writ of habeas corpus, alleging newly discovered evidence 

and asserting the following nine claims: (1) the new evidence, considered 

with the trial evidence, demonstrates that Berry is actually innocent; (2) 

the State elicited and failed to correct perjured testimony from Richard 

Iden, in violation of Napue v. Illinois, 360 U.S. 264 (1959), and also failed 

to disclose transcripts of meetings with him at which he was coached, in 

violation of Brady v. Maryland, 373 U.S. 83 (1963); (3) the police engaged 

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in misconduct by not adequately investigating Jackson; (4) the State's 

misconduct as set forth in claims 2 and 3 rendered Berry's trial 

fundamentally unfair, in violation of his due process rights; (5) judicial 

error in giving the Kazalyn instruction; (6) that the judge who presided 

over Berry's trial had a conflict of interest in that he also sentenced Iden, 

precluding a fair trial; (7) the non-unanimous verdict was 

unconstitutional; (8) ineffective assistance of counsel in mishandling the 

issues described in claims 6 and 7; and (9) cumulative error. 

Chief among the evidence Berry offered to support his petition 

were four declarations. The first was from Jackson. In his declaration, 

Jackson confesses to the crimes and states: "I committed the robbery that 

resulted in the murder of Charles Burkes. DeMarlo Berry did not commit 

this crime, nor did he have any involvement in the commission of this 

crime." The Jackson declaration runs three handwritten, single-spaced 

pages and describes the crime in fair detail, including what he was 

wearing, his directions to Burkes to open the safe, Burkes's fumbling with 

the locks on the safe, and his fear that Burkes was stalling for time for 

help to arrive, whereupon, after directing Burkes to "hurry up," he shot 

him. 

The second declaration was from Richard Iden. In his 

declaration, Iden recants his trial testimony about Berry's jailhouse 

confession and states, among other things, that "I testified falsely . . . at 

Demarlo Berry's murder trial in 1995 . . . Demarlo Berry never confessed 

to me. All of the details of my testimony were given to me by Detective 

Good, her partner, D.A. Booker, and/or the D.A.'s investigator." After 

addressing the details of his plea bargain, the Iden declaration discloses 

that, "[in addition, the State paid my airfare to return to Ohio and back to 

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Las Vegas twice. They also paid a per diem and hotel/meals during the 

course of the trial." Iden ends his declaration by admitting, as Berry has 

maintained throughout, that his testimony that Berry and he first met in 

1990 when Iden bought drugs from Berry in Las Vegas was false: "I had 

never met Demarlo Berry prior to my brief conversation with him in [the] 

holding [cell]." 

The third declaration came from Elizabeth Fasse, the RMIC 

lawyer who conducted the interview of Jackson that produced his 

confession. The Fasse declaration describes the Jackson interview in 

detail, and narrates that, after stating that he "had become a Jehovah's 

witness and 'wanted to get this off his chest and clear his 

conscience'. . . Mr. Jackson then proceeded to describe the facts and 

events leading up to and including the Crimes in significant detail and his 

direct involvement therein, interrupted only by occasional clarifying 

questions," adding that "[alt no time during Mr. Jackson's narrative did 

we relay any information to Mr. Jackson about the Crimes." 

The fourth declaration came from a woman named Maisha 

Mack, who attests that she "was acquaintances with Steven Jackson (aka 

`Sindog') in 1993-1994." The Mack declaration reports that, "shortly after 

the murder. . . on April 24, 1994," she was with Sindog and his brother in 

the "Sierra Vista area of Las Vegas" when "Mr. Jackson confessed to me 

that he, with the help of his brother, committed the 

murder . . . . Specifically, Mr. Jackson said he was the one who shot the 

victim, Charles Burke[s] , which killed him." 

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The district court dismissed Berry's petition on motion, 

without allowing discovery or conducting an evidentiary hearing.' It 

determined that the declarations in which Jackson confessed and Iden 

recanted his testimony that Berry confessed were "belied by the record." 

Addressing the Jackson declaration, the district court stated that it was 

"troubled by the number of omissions and their significance to the 

narrative," citing as examples the omission of any reference to Metz, 

whom the robber first encountered, or the black Cadillac, in which he fled. 

Of note, the district court's written decision does not acknowledge or 

address the Fasse declaration, which recited some of the details Jackson 

brought up during their interview, including the presence of two other 

Carl's Jr. employees in the restaurant besides Burkes (Metz and the 

employee who hid in the bathroom) and the fact that Jackson refused to 

name the getaway driver, which may explain the lack of reference to the 

black Cadillac. The district court also questioned whether Jackson could 

have shot Burkes by the safe, when trial photographs showed Burkes's 

body was found some distance away with no blood trail leading back to the 

safe. 

"The district court resolved this case by written "decision" rather 

than a document entitled "findings of fact and conclusions of law." But see 

NRS 34.830 ("Any order that finally disposes of a petition, whether or not 

an evidentiary hearing was held, must contain specific findings of fact and 

conclusions of law supporting the decision of the court."). After this appeal 

was filed, the• State obtained an expanded ruling from the district court 

entitled "findings of fact and conclusions of law." Berry appealed, and the 

appeal was dismissed on the State's agreement that the findings should be 

stricken from the record. Berry v. State, Docket No. 66877 (Order 

Dismissing Appeal, March 20, 2015). 

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Addressing the Iden declaration, the district court found the 

plea deal and Iden's "tenuous credibility" to have been thoroughly explored 

at trial, quoting Iden's trial testimony "that he would do or say anything to 

get money for his next high." As noted, the district court also deemed the 

Iden declaration, like the Jackson declaration, "belied by the record," and 

further dismissed both the Iden declaration and the Mack declaration as 

containing nothing more than "naked allegations." The decision 

concludes: 

The Petition for Writ of Habeas Corpus fails 

to set forth any newly discovered evidence of 

actual innocence that is not belied by the record. 

Because the evidence of actual innocence fails, the 

Petition's procedurally barred by NRS 34.726 and 

NRS 34.810. Moreover, Petitioner fails to 

overcome the prejudice to the State pursuant to 

NRS 34.800. Therefore, this Court DENIES Mr. 

Berry's Petition without an evidentiary hearing 

and GRANTS the State's Motion to Dismiss. 

A. 

Berry filed the petition underlying this appeal on May 2, 2014, 

more than 15 years after this court's February 9, 1998, issuance of 

remittitur from his direct appeal. Therefore, Berry's petition is untimely. 

See NRS 34.726(1). As this is Berry's third petition, it is successive. See 

NRS 34.810(2). Also, since the State affirmatively pleaded laches, Berry 

must overcome the presumption of prejudice to the State. See NRS 

34.800(2). 

A habeas petitioner may overcome these bars and secure 

review of the merits of defaulted claims by showing that the failure to 

consider the petition on its merits would amount to a fundamental 

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miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 314-15 (1995); 

Mitchell v. State, 122 Nev. 1269, 1274, 149 P.3d 33, 36 (2006); Pellegrini v. 

State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). This standard is naet 

when the "petitioner makes a colorable showing he is actually innocent of 

the crime." Pellegrini, 117 Nev. at 887, 34 P.3d at 537. This means that 

"the petitioner must show that it is more likely than not that no 

reasonable juror would have convicted him in the light of the new 

evidence." Schlup, 513 U.S. at 327. "[A] petition supported by a 

convincing Schlup gateway showing 'raises [s] sufficient doubt about [the 

petitioner's] guilt to undermine confidence in the result of the trial 

without the assurance that that was untainted by constitutional error'; 

hence, 'a review of the merits of the constitutional claims' is justified." 

House v. Bell, 547 U.S. 518, 537 (2006) (quoting Schlup, 513 U.S. at 317). 2 

Here, Berry requests an evidentiary hearing on whether he is 

actually innocent so that he may pass through the Schlup gateway and 

2Schlup's gateway claim of actual innocence was "not itself a 

constitutional claim, but instead a gateway through which a habeas 

petitioner must pass to have his otherwise barred constitutional claim 

considered on the merits." Schlup, 513 U.S. at 315 (internal quotations 

omitted). Nevada's postconviction habeas statute permits a petitioner to 

challenge a conviction that was obtained in violation of the United States 

or Nevada Constitutions or state law. NRS 34.724. Our case law does not 

resolve whether a state habeas petitioner, who passes through the Schlup 

actual innocence gateway, may have his procedurally defaulted nonconstitutional claims heard on the merits, as well as defaulted 

constitutional claims. The parties suggest but do not adequately brief this 

issue, resolution of which is unnecessary given the reversal and remand 

here. 

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have his procedurally defaulted claims heard on the merits. 3This court 

"has long recognized a petitioner's right to a postconviction evidentiary 

hearing when the petitioner asserts claims supported by specific factual 

allegations not belied by the record that, if true, would entitle him to 

relief." Mann v. State, 118 Nev. 351, 354, 46 P.3d 1228, 1230 (2002). 

We see no reason to depart from the Mann standard in 

determining whether Berry is entitled to an evidentiary hearing on the 

gateway issue of actual innocence. We have not limited the use of the 

Mann standard to the grounds for relief in a habeas corpus petition. For 

instance, we have used this standard in deciding whether a petitioner may 

receive an evidentiary hearing to establish good cause to overcome the 

procedural bar in NRS 34.726(1). See Hathaway v. State, 119 Nev. 248, 

255, 71 P.3d 503, 508 (2003) (reversing and remanding for an evidentiary 

hearing on the petitioner's good cause allegations because he had "raised a 

claim supported by specific facts not belied by the record, which if true, 

would entitle him to relief'). 

Further, federal circuit courts similarly hold that an 

evidentiary hearing regarding actual innocence is required where the new 

evidence, "if credited," would show that it is more likely than not that no 

reasonable jury would find the petitioner guilty beyond a reasonable 

doubt. See Coleman v. Hardy, 628 F.3d 314, 319-20 (7th Cir. 2010) 

3Berry's petition suggests that he is making a free-standing actual 

innocence claim, in addition to a gateway actual innocence claim. This 

court has yet to address whether and, if so, when a free-standing actual 

innocence claim exists. See also McQuiggin v. Perkins, 569 U.S. , 

133 S. Ct. 1924, 1931 (2013) (stating that the Supreme Court also has not 

"resolved whether a prisoner may be entitled to habeas relief based on a 

freestanding claim of actual innocence"); note 2, supra. 

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(holding that within the context of 28 U.S.C. § 2254(e)(2)(B) an evidentiary 

hearing "should be granted if it could enable a habeas applicant to prove 

his petition's factual allegations, which, if true, would entitle him to 

federal habeas relief'); Jaramillo v. Stewart, 340 F.3d 877, 883 (9th Cir. 

2003) (remanding for an evidentiary hearing to resolve whether the 

evidence proffered to show actual innocence was credible because that 

"evidence if credible, and considered in light of all the evidence, 

demonstrate[d] that it [was] more likely than not that no reasonable juror 

would have convicted [the petitioner] of the charged offenses"); Amrine v. 

Bowersox, 128 F.3d 1222, 1229 (8th Cir. 1997) (providing petitioner made 

a sufficient showing to require an evidentiary hearing on his actual 

innocence allegation because, "if credited, his evidence could establish 

actual innocence"). 

B. 

Applying this standard means that Berry would be entitled to 

an evidentiary hearing on his gateway actual innocence claim if he has 

presented specific factual allegations that, if true, and not belied by the 

record, would show that it is more likely than not that no reasonable juror 

would have convicted him beyond a reasonable doubt given the new 

evidence. This requires the district court to evaluate whether the new 

evidence presents specific facts that are not belied by the record and then, 

if so, to evaluate whether the new evidence, considered in light of all the 

evidence at trial, would support a conclusion that the petitioner has met 

the actual-innocence test—the caveat being that the district court must 

assume the new evidence is true when determining whether to conduct an 

evidentiary hearing. 

Above, we provided a recitation of the facts to emphasize that 

this is a highly factual inquiry, even at the stage of determining whether 

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the petitioner should be granted an evidentiary hearing on his actual 

innocence claim. See Schlup, 513 U.S. at 301-13 (setting forth, in great 

detail, the facts supporting the petitioner's requested relief). The district 

court "must make its determination concerning the petitioner's innocence 

in light of all the evidence." Id. at 328. It must review both the reliability 

of the new evidence and its materiality to the conviction being challenged, 

which in turn requires an examination of the quality of the evidence that 

produced the original conviction. See House, 547 U.S. at 538 ("Schlup 

makes plain that the habeas court must consider all the evidence, old and 

new, incriminating and exculpatory, without regard to whether it would 

necessarily be admitted under rules of admissibility that would govern at 

trial. Based on this total record, the court must make a probabilistic 

determination about what reasonable, properly instructed jurors would 

do." (internal quotations omitted)); Schlup, 513 U.S. at 331-32 ("[T]he 

District Court must assess the probative force of the newly presented 

evidence in connection with the evidence of guilt adduced at trial."). Still, 

the "court's function is not to make an independent factual determination 

about what likely occurred, but rather to assess the likely impact of the 

evidence on reasonable jurors." House, 547 U.S. at 538. Since the jury did 

not hear the new evidence, the district court should "assess how 

reasonable jurors would react to the overall, newly supplemented record." 

Id. 

Unlike in summary judgment proceedings, the district court 

may make some credibility determinations based on the new evidence in 

determining whether to conduct an evidentiary hearing. See Schlup, 513 

U.S. at 332 ("[T]he court may consider how. . . the likely credibility of the 

affiants bear on the probable reliability of that evidence."). For instance, 

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an affidavit from a death row inmate confessing to a defendant's crime 

may have less probative force than an affidavit from a disinterested 

witness who claims to have seen the inmate commit the crime. See House, 

547 U.S. at 552 (recognizing that the claim of two eyewitnesses, with no 

motive to lie, that the husband spontaneously confessed to murdering his 

wife after the defendant was convicted had more probative value than 

"incriminating testimony from [fellow] inmates, suspects, or friends or 

relations of the accused"). Though a district court would be required to 

assume that the death row inmate's confession was true, it still must 

determine how reasonable jurors would react to the overall record. Thus, 

if there was strong evidence at trial linking the defendant to the crime, 

such as DNA or video evidence, a reasonable jury may convict the 

defendant, even in light of the inmate's confession, because the strength of 

the other evidence may still lead a reasonable jury to convict the 

defendant beyond a reasonable doubt. 

Finally, it bears emphasizing that the actual-innocence 

"standard is demanding and permits review only in the extraordinary 

case." Id. at 538 (internal quotations omitted). Confidence in the 

petitioner's trial "must be 'undermined' before he is entitled to a hearing 

'for the purpose of developing the evidence needed to pass his procedurally 

defaulted habeas claims through the actual innocence gateway." Sibley v. 

Gulliver, 377 F.3d 1196, 1206 (11th Cir. 2004) (quoting Davis v. Gammon, 

27 F. App'x 715, 717 (8th Cir. 2001)). 

C. 

With these principles in mind, we turn to the district court's 

denial of Berry's request for an evidentiary hearing, which we review for 

an abuse of discretion. See Rubio v. State, 124 Nev. 1032, 1047, 194 P.3d 

1224, 1234 (2008). The district court need not hold an evidentiary hearing 

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where a claim or allegation is repelled or belied by the record, or 

"necessarily false." Mann, 118 Nev. at 354-55, 46 P.3d at 1230. But a 

claim "is not 'belied by the record' just because a factual dispute is created 

by the pleadings or affidavits filed during the postconviction proceedings. 

A claim is 'belied' when it is contradicted or proven to be false by the 

record as it existed at the time the claim was made." Id. at 354, 46 P.3d 

1230. 

The district court determined that Jackson's declaration was 

belied by the record, in part, because the declaration made no mention of 

the assailant's initial contact with the Carl's Jr. cashier, Metz, and the fact 

that, after the robbery and murder, the assailant fled in a waiting black 

Cadillac. These omissions do not render the averments in the Jackson 

declaration `belied by the record" because the declaration does not affirm 

or deny the encounter with Metz or his departure in the Cadillac; the 

declaration is merely silent on both points. Jackson does aver that after 

leaving the restaurant he jumped over the brick wall and fled This leaves 

open the possibility that Jackson fled in the Cadillac. Had he said he fled 

on foot, or by motorcycle, it would be more problematic. Additionally, the 

Fasse declaration, which the district court did not acknowledge, arguably 

explains the Jackson declaration's failure to mention the Cadillac—

Jackson's insistence that he not implicate anyone else involved in the 

crime, here, the getaway driver, which the Mack declaration suggests was 

Jackson's brother. A declaration cannot be expected to contain every 

detail of a crime that occurred more than 20 years ago and, as noted 

above, Jackson's declaration, on the whole, was fairly detailed. The 

omissions may be fodder for cross-examination at an evidentiary hearing 

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but they do not render the Jackson declaration's averments "belied by the 

record." 

The district court was also troubled that Jackson's declaration 

stated that he shot the victim near the safe, while crime scene 

photographs and trial testimony established that Burkes died in the back 

of the restaurant, away from the safe, with no blood trail showing that the 

victim moved or was moved. But, again, the Jackson declaration is not 

necessarily false in light of the record because the victim did not have an 

exit wound and the crime scene photos show a bullet casing by the safe, 

which supports Jackson's statement that he fired his gun from that area 

(two shots were fired, not one). Thus, Jackson's affidavit creates one or 

more factual disputes: whether the victim could have moved without 

creating a blood trail, and whether the assailant could have shot him from 

the area by the safe as the victim fled to the back of the restaurant. 4The 

district court abused its discretion by resolving this dispute with its 

finding that the lack of a trail of blood necessarily means that the victim 

could not have been shot as the Jackson declaration describes. See 

Vaillancourt v. Warden, 90 Nev. 431, 432, 529 P.2d 204, 205 (1974) 

("Where. . . something more than a naked allegation has been asserted, it 

is error to resolve the apparent factual dispute without granting the 

accused an evidentiary hearing."). 

We do not discount the district court's concern with allowing 

one inmate's confession to exonerate another inmate, years after the 

crime. But in this case, exploring these issues at an evidentiary hearing is 

4The district court observed that there was "blood around the 

victim's shoulder, on his hand, and coming from his mouth." 

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more appropriate than rejecting the evidence of actual innocence out of 

hand. The Jackson declaration provides specific details about the crime 

that were corroborated by other witnesses, such as one customer entering 

and leaving the restaurant as soon as he realized something was amiss, 

Jackson demanding that the manager open up the safe, and Jackson 

running away from a crowd and jumping over a wall between the Carl's 

Jr. and the Blue Angel Motel. Though Jackson is currently imprisoned on 

a life sentence in California, his admission to this crime opens up the 

possibility of the death penalty—something he was aware of when he 

confessed. And Mack's affidavit supports that Jackson committed the 

murder and there is nothing in the record that indicates she has an 

ulterior motive for her statement. Additionally, Berry maintained at trial 

that Jackson was the murderer and there was no physical evidence 

presented at trial that indicated Berry committed the murder. Therefore, 

since the Jackson affidavit states specific factual allegations that are not 

belied by the record and is supported by other evidence, it was an abuse of 

discretion for the district court to discredit it without conducting an 

evidentiary hearing. 

The district court also incorrectly discounted the Mack and 

Iden affidavits as naked allegations even though they both contained 

specific factual assertions. See Hargrove v. State, 100 Nev. 498, 502, 686 

P.2d 222, 225 (1984) (noting that a petitioner's allegation that certain 

witnesses could establish his innocence "was not accompanied by the 

witness fee names or descriptions of their intended testimony" and thus 

was just a bare or naked claim without any specific factual assertions). 

Mack's affidavit stated that: she was acquainted with Jackson from 1993- 

1994; she saw him with his brother in Las Vegas soon after the crime; at 

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that time, Jackson "confessed to me that he, with the help of his brother, 

committed the murder of Charles Burkes at Carl's Jr. on April 24, 1994"; 

and "Mr. Jackson said he was the one who shot the victim, Charles 

Burkes, which killed him." The affidavit of Iden, who originally stated 

Berry confessed to him while in the holding cell, contains specific factual 

allegations, such as: the names of the detectives who approached him after 

he briefly spoke with Berry in the holding cell; that the detectives told 

Iden information about the murder and encouraged him to state that 

Berry had confessed to him during the brief conversation in holding; the 

name of the district attorney who approached him "for the same purpose" 

and who agreed to recommend a suspended sentence on a pending charge 

in exchange for the false testimony; that the detectives and district 

attorney coached him multiple times before he testified; and that he 

"testified falsely as instructed" at Berry's trial and "Berry never confessed 

to me." Thus, these affidavits present specific factual allegations of 

Berry's innocence that are not belied by the record. 

To be sure, Idea has changed his story multiple times and is 

now claiming that everything he said on the stand was a lie. Standing 

alone, his recantation and allegations of prosecutorial misconduct would 

be difficult to credit. However, the material part of the affidavit for these 

proceedings—that his testimony that Berry confessed to him was a 

complete fabrication—is not without other evidentiary support. Berry 

testified at trial that he did not confess to Iden and that Jackson, not 

Berry, committed the crime. Now, Jackson admits to murdering the 

victim, and Mack claims that Jackson told her he killed the victim, shortly 

after murdering him. Furthermore, nothing in the record indicates that 

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Iden currently has a reason to lie. Thus, Iden's affidavit cannot be 

completely discredited without an evidentiary hearing. 

Finally, the district court considered the fact that it took 20 

years for the declarants to come forward and exonerate Berry. See 

McQuiggin v. Perkins, 569 U.S. 133 S. Ct, 1924, 1935 (2013) 

("Unexplained delay in presenting new evidence bears on the 

determination whether the petitioner has made the requisite showing."); 

Schlup, 513 U.S. at 300 (stating that the district court "may consider how 

the submission's timing. bear[s] on the probable reliability of that 

evidence"). The district court was not persuaded by Berry's explanation 

that Jackson found religion while serving his sentence or that Iden, who 

was "scheduled to be released from incarceration in another state ... may 

want a clean start." However, the district court was not required to be 

persuaded by the offered explanations. Rather, the district court had to 

determine how the delay affected the reliability of the evidence or why it 

prevented Berry from meeting the high standard of an actual innocence 

claim. For instance, in McQuiggin, the state was concerned that a 

"prisoner might lie in wait and use stale evidence to collaterally attack his 

conviction. . . when an elderly witness has died and cannot appear at a 

hearing to rebut new evidence." 133 S. Ct. at 1936. The Court noted that 

the timing of such a petition "should seriously undermine the credibility of 

the actual-innocence claim." Id. Presumably, this is because waiting 

provided the petitioner with an advantage. No concerns similar to those at 

issue in McQuiggin have been suggested in this case. Although the 

declarants' decisions to wait 20 years to exonerate a potentially innocent 

man in this case is regrettable, to say the least, we fail to see how it 

undermines the credibility of Berry's actual innocence claim or makes his 

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evidence of actual innocence so unreliable that he does not deserve 

discovery and an evidentiary hearing. 

D. 

After determining that Berry has presented specific factual 

allegations of his innocence that are not belied by the record and assuming 

that the new evidence is credible, we must decide what a reasonable juror 

would have done if presented with the trial evidence and this new 

evidence in order to determine whether Berry was entitled to an 

evidentiary hearing. The trial evidence consisted of multiple eyewitness 

accounts alleging Berry was the murderer, but no physical evidence, such 

as fingerprints or DNA evidence, linking Berry to the crime. With these 

eyewitness accounts, the hypothetical jury hearing the new evidence 

would have also heard a confession by Jackson, whom Berry testified at 

trial was the real perpetrator; an uninterested witness's statement that 

Jackson confessed to her that he committed the murder soon after it 

occurred; and Iden's testimony that Berry did not confess to him and the 

prosecution, along with police detectives, who instructed him to testify 

falsely (or, possibly, Iden's testimony would not have been admitted at all). 

A jury considering such a record—assuming the truth of the newly 

presented evidence, as we must at this stage—would likely have 

reasonable doubt that Berry committed the murder. Jackson's confession, 

Mack's support for the confession, and Berry's trial testimony that it was 

Jackson who committed the murder would likely lead to the jury finding 

that Jackson was the murderer, not Berry. We emphasize again that it is 

not only the strength of the new evidence that is material. A district court 

should examine the evidence that led to the original conviction and 

especially whether the new evidence diminishes the strength of the 

evidence presented at trial. 

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Here, the testimony of Jackson and Mack could lead a 

reasonable jury to seriously question the reliability of the eyewitness 

accounts. Obviously, Men's recantation significantly weakens his original 

claim that Berry confessed to him. Thus, it's clear that the new evidence, 

if true, supports the allegation that Jackson committed the murder and it 

casts serious doubt on the central evidence that led to the original 

conviction. Therefore, we are satisfied that this new evidence, if true, 

shows that it is more likely than not that no reasonable jury would convict 

Berry beyond a reasonable doubt. As such, the district court abused its 

discretion by denying Berry an evidentiary hearing, and we remand for an 

evidentiary hearing on whether Berry is actually innocent, such that the 

procedural bars no longer apply, and Berry can have his procedurally 

defaulted claims heard on the merits. 

Next, the State argues that even if Berry succeeds on his 

fundamental miscarriage of justice claim at the evidentiary hearing, he 

still must show "that the petition is based on grounds of which [Berry] 

could not have had knowledge by the exercise of reasonable diligence 

before the circumstances prejudicial to the State occurred," NRS 

34.800(1)(a), to overcome the presumption of prejudice to the State. Berry 

responds that a fundamental miscarriage of justice overcomes all 

procedural bars, including NRS 34.800(1)(a). The declarations Berry has 

filed demonstrate that his petition depends in large measure on Jackson's 

confession. Jackson was interviewed by Berry's investigator in 2005 and 

refused to cooperate, so presumably his confession was unavailable to 

Berry before then. It was only in 2013, after Jackson became a Jehovah's 

Witness, that his confession was forthcoming. The delay in obtaining 

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Jackson's confession was due to Jackson, not Berry's failure to exercise 

reasonable diligence. 

Finally, we note that the district court did not address Berry's 

alternative arguments of good cause and prejudice. See Pellegrini, 117 

Nev. at 886, 34 P.3d at 537 ("To overcome the procedural bars of NRS 

34.726 and NRS 34.810, Pellegrini had the burden of demonstrating good 

cause for delay in bringing his new claims or for presenting the same 

claims again and actual prejudice."). The district court's order recognizes 

only that Berry asserts the actual innocence excuse for his otherwise 

barred claims. It is unnecessary for the district court to address Berry's 

alternative arguments because if Berry cannot show a fundamental 

miscarriage of justice at the evidentiary hearing, then his claim will be 

barred by laches and a showing of good cause and actual prejudice will be 

immaterial. Thus, we reverse the judgment of the district court and 

remand for proceedings consistent with this opinion. 

Gibbons 

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