IN THE SUPREME COURT OF THE STATE OF NEVADA 

EVARISTO JONATHAN GARCIA, 

Appellant, 

vs. 

JAMES DZURENDA, DIRECTOR, 

Respondent. 

ORDER OF AFFIRMANCE 

No. 80255 

FILED 

This is an appeal from the denial of an untimely post-conviction 

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

County; David M. Jones, Judge. 

Appellant Evaristo Garcia was convicted of killing a fifteenyear-old boy in front of a high school. Following the denial of his first postconviction petition, he learned that the State never disclosed to him police 

records kept by the Clark County School District Police Department 

(CCSDPD). Those records indicated that a witness's initial description of 

the shooter was inconsistent with all of her other descriptions, and that 

CCSDPD, shortly after the shooting, stopped a suspect in the vicinity of 

where witnesses said the shooter ran, but the suspect was quickly released 

when a witness stated he was not the shooter. Evaristo filed the underlying 

habeas petition, which the district court denied as procedurally barred. 

A post-conviction petition for a writ of habeas corpus must be 

filed within one year and successive petitions are not permitted when the 

second petition alleges new or different grounds and the judge determines 

that the failure to assert those grounds previously constitutes an abuse of 

the writ. NRS 34.726(1); NRS 34.810(2). Garcia's petition is thus time 

22._- tooLiz. 
barred unless he can demonstrate good cause. NRS 34.726(1). Given he 

alleges a Brady v. Maryland, 373 U.S. 83 (1963), violation, good cause must 

be shown by proving the following: "(1) the evidence is favorable to the 

accused, either because it is exculpatory or impeaching; (2) the State 

withheld the evidence, either intentionally or inadvertently; and (3) 

prejudice ensued, i.e., the evidence was material." State v. Huebler, 128 

Nev. 192, 198, 275 P.3d 91, 95 (2012) (internal quotation marks omitted) 

(explaining that the second and third prongs of a Brady violation mirror the 

two requirements for demonstrating good cause for the delay in filing the 

habeas petition); NRS 34.726(1). This court reviews a district coures 

decision resolving a Brady claim de novo. Huebler, 128 Nev. at 198, 275 

P.3d at 95-96. 

Garcia satisfied the second prong by showing that the State 

withheld the evidence. The State has an affirmative duty to disclose 

favorable evidence in its possession regardless of whether the defense has 

made a discovery request. State v. Bennett, 119 Nev. 589, 601, 81 P.3d 1, 9 

(2003). The State is "charged with constructive knowledge and possession 

of evidence withheld by other state agents, such as law enforcement 

officers," id. at 603, 81 P.3d at 10 (internal quotation marks omitted), even 

if the evidence "is known only to police investigators and not to the 

prosecutor," Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) 

(internal quotation marks omitted). The State concedes that CCSDPD is a 

law enforcement agency. The record demonstrates that the first officer on 

the scene was a CCSDPD officer, seven CCSDPD officers assisted with 

securing the scene and investigating the crime, and CCSDPD officers 

stopped a potential suspect. Thus, the State had constructive knowledge 

that the CCSDPD was involved in the investigation and may have drafted 

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reports. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) (providing that "the 

individual prosecutor has a duty to learn of any favorable evidence known 

to the others acting on the government's behalf in the case); Bennett, 119 

Nev. at 603, 81 P.3d at 10-11 (charging the State with constructive 

knowledge of evidence in a Utah police officer's possession because the State 

was aware of the Utah police's assistance in the investigation of the crime). 

Nevertheless, Garcia did not demonstrate that the evidence was 

material. Evidence must be disclosed if it is exculpatory and "provides 

grounds for the defense to attack the reliability, thoroughness, and good 

faith of the police investigation, to impeach the credibility of the state's 

witnesses, or to bolster the defense case against prosecutorial attacks." 

Mazzan v. Warden, Ely State Prison, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000). 

If the defense only makes "a general request for information, the evidence 

is material when a reasonable probability exists that the result would have 

been different had it been disclosed," and if a specific request is made, "the 

evidence is material upon the lesser showing that a reasonable possibility 

exists of a different result had there been disclosure." Bennett, 119 Nev. at 

600, 81 P.3d at 8. Even under the lower standard for materiality, Garcia 

was unable to demonstrate that the evidence was material. 

Garcia matched the description of the shooter, his fingerprints 

were on the gun, a witness testified that he rode in a car with Garcia to the 

scene of the crime and watched the gun owner hand Garcia the gun, and 

another individual testified that Garcia told him he had shot the victim. 

Additionally, the evidence that a witness's initial description of the shooter 

was different would not have supported Garcia's defense at trial that one of 

two other individuals was the shooter because neither of those individual's 

fingerprints were on the gun. Further, that witness impeached her own 

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testimony at trial because she indicated that she forgot things due to her 

age. Additionally, in light of the significant evidence of Garcia's guilt at 

trial, the fact that another individual was stopped near the scene of the 

crime would not have created the possibility of a different outcome because 

there was no evidence that the individual was connected t,o the crime or 

connected to any of the other individuals involved in the crime. Therefore, 

because Garcia could not demonstrate that the suppressed evidence was 

material, the district court properly denied Garcia's petition for a writ of 

habeas corpus as procedurally barred. Accordingly, we 

ORDER the judgment of the district court AFFIRMED.2 

J. 

Hardesty 

J. 

Stiglich 

J. 

1Because Garcia was unable to demonstrate the third Brady prong 

and all prongs are necessary for a Brady claim, we need not consider 

whether he properly demonstrated the first prong. 

2We also conclude that Garcia's argument that the district court's 

adoption of the States language into its order violated Garcia's 

Constitutional rights and the separation of powers doctrine lacks merit. 

The record demonstrates that the district court did not adopt the State's 

proposed order verbatim, and EDCR 7.21 requires the prevailing party to 

provide the court with a draft order or judgment. 

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cc: Hon. David M. Jones, District Judge 

Federal Public Defender/Las Vegas 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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((1) I947A 440. 

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