erroneous but review the court's application of the law to those facts de 

novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). 

First, appellant argues that the State violated Brady v. 

Maryland, 373 U.S. 83 (1963), when it failed to disclose the entire contents 

of a letter that appellant's sentencing judge wrote and requested to be 

placed in codefendant M. Woomer's parole file. Although procedurally 

barred, demonstrating the second and third elements of a Brady claim 

satisfies the good cause and prejudice requirements to overcome that 

procedural bar. State v. Huebler, 128 Nev., Adv. Op. 19, 275 P.3d 91, 95 

(2012). "To prove a Brady violation, the accused must make three 

showings: (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." Id. (internal quotations omitted). 

Even assuming without deciding that the State withheld 

favorable evidence, appellant has not demonstrated the third element, 

that he was prejudiced. Appellant argues that the letter's contents justify 

a lower sentence than he received and that he was denied the opportunity 

to make the arguments contained in the letter because he did not know 

about them. However, the letter's author was also appellant's sentencing 

judge, and appellant has not demonstrated how he was prejudiced by 

being denied the opportunity to echo the judge's own thoughts back to him 

at sentencing. Further, although the sentencing judge felt Woomer was 

instrumental" in swinging the bat despite Woomer's statements to the 

contrary, the judge did not feel this was exculpatory vis-a-vis appellant. 

The sentencing judge noted that it was appellant who carried the bloody 

bat out of the house, and he discussed the "sinister" use of the batting 

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glove—which was solely associated with appellant—in his final remarks. 

In failing to demonstrate this third Brady element, appellant has also 

failed to overcome the procedural bar. 

Second, appellant argues that the district court erred in 

denying grounds three through five of his petition as procedurally barred, 

because he has demonstrated that he is actually innocent such that the 

failure to consider those claims on their merits would result in a 

fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 314- 

15 (1995); see also Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 

(2001) (adopting the Schlup test). To prove actual innocence as a gateway 

to reach procedurally-barred constitutional claims of error, a petitioner 

must show that "it is more likely than not that no reasonable juror would 

have convicted him in light of the new evidence." Calderon v. Thompson, 

523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 327); see also 

Pellegrini, 117 Nev. at 887, 34 P.3d at 537. Appellant has failed to 

demonstrate a gateway claim of actual innocence. 

"To be credible, a claim of actual innocence must be based on 

reliable evidence." Calderon, 523 U.S. at 559 (internal quotations 

omitted). In his recantation and evidentiary-hearing testimony, Woomer 

took sole credit for thinking up and carrying out the robbery and murder, 

indicating that appellant was in no way involved. The district court 

clearly did not consider Woomer to be credible or reliable. Woomer's 

recitation of events in his declaration and postconviction testimony, if 

believed, would have absolved appellant of any of the crimes with which 

he was charged. But despite Woomer's recantation, the district court 

nevertheless found that the evidence does not support that appellant is 

actually innocent of the crimes for which he was convicted. We defer to 

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the district court's implicit findings regarding Woomer's credibility, which 

are supported by substantial evidence in the record. See State v. Rincon, 

122 Nev. 1170, 1177, 147 P.3d 233, 238 (2006) ("[T]he district court is in 

the best position to adjudge the credibility of the witnesses and the 

evidence, and unless this court is left with the definite and firm conviction 

that a mistake has been committed, this court will not second-guess the 

trier of fact." (internal quotations omitted)). 

Moreover, the district court's finding that appellant failed to 

demonstrate that he was actually innocent is also supported by 

substantial evidence in the record. Appellant was convicted of robbery 

with use of a deadly weapon, conspiracy to commit robbery, and firstdegree murder with use of a deadly weapon. The trial testimony of other 

witnesses was that appellant left the crime scene carrying a bat covered in 

the victim's blood and was in control of the proceeds of the robbery, 

supporting that appellant was an active participant in the illegal activity. 

And one of the theories of first-degree murder was felony murder, such 

that if appellant had not struck the fatal blows, he would nevertheless 

have been convicted of first-degree murder. See NRS 200.030(1)(b). 

Accordingly, appellant has failed to demonstrate that it is more likely than 

not that no reasonable juror would have convicted him in light of the new 

evidence. For this same reason, we conclude that the district court did not 

err in denying appellant's freestanding claim of actual innocence in which 

he requested a new trial on the basis of newly discovered evidence 

(Woomer's recantation of his trial testimony). 2 See Schlup, 513 U.S. at 

2The district court separated this argument into two claims: a 

freestanding claim of actual innocence, and a request for new trial based 

on newly discovered evidence. 

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316-17 (suggesting that the test for any freestanding claim of actual 

innocence would be more stringent than that for a gateway claim); Callier 

v. Warden, 111 Nev. 976, 990, 901 P.2d 619, 627-28 (1995) (setting out a 

four-element test for determining whether a petitioner is entitled to a new 

trial based on a newly discovered recantation, the fourth element being 

that "it is probable that had the false testimony not been admitted, a 

different result would have occurred at trial"). 

For the foregoing reasons, we conclude that the district court 

has not erred in denying appellant's petition as procedurally barred, and 

we 

ORDER the judgment of the district court AFFIRMED. 

Okk 

Parraguirre 

/ 11—C7reLti 

Cherry 

...continued 

It is unclear whether either iteration of the claim is cognizable in a 

postconviction habeas petition. NRS 34.724(1) limits the scope of such 

petitions to "claims that the conviction was obtained, or that the sentence 

was imposed, in violation of the Constitution of the United States or the 

Constitution or laws of this State." Appellant's claim of newly discovered 

evidence does not allege any constitutional violation. Further, neither this 

court nor the United States Supreme Court has ever held that 

freestanding claims of actual innocence are available. See McQuiggin v. 

Perkins, 569 U.S. „ 133 S. Ct. 1924, 1931 (2013). However, as 

discussed herein, the claim would nevertheless fail on the merits. 

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(0) I947A igetp 

, J. 
cc: Hon. Nancy L. Porter, District Judge 

Federal Public Defender/Las Vegas 

Attorney General/Carson City 

Elko County District Attorney 

Elko County Clerk 

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