2023 Nevada Revised Statutes › Chapter 34 - Writs; Petition to Establish Factual Innocence › NRS 34.960 - Filing of petition; notice and copy of petition to be served on prosecuting agency; contents; review by court; grounds for dismissal; explanation of decision by court; preservation of evidence; proceedings governed by Nevada Rules of Civil Procedure.

1. At any time after the expiration of the period during which a motion for a new trial based on newly discovered evidence may be made pursuant to NRS 176.515, a person who has been convicted of a felony may petition the district court in the county in which the person was convicted for a hearing to establish the factual innocence of the person based on newly discovered evidence. A person who files a petition pursuant to this subsection shall serve notice and a copy of the petition upon the prosecuting agency.
2. A petition filed pursuant to subsection 1 must contain an assertion of factual innocence under oath by the petitioner and must aver, with supporting affidavits or other credible documents, that:
(a) Newly discovered evidence exists that is specifically identified and, if credible, establishes a bona fide issue of factual innocence;
(b) The newly discovered evidence identified by the petitioner:
(1) Establishes innocence and is material to the case and the determination of factual innocence;
(2) Is not merely cumulative of evidence that was known, is not reliant solely upon recantation of testimony by a witness against the petitioner and is not merely impeachment evidence; and
(3) Is distinguishable from any claims made in any previous petitions;
(c) If some or all of the newly discovered evidence alleged in the petition is a biological specimen, that a genetic marker analysis was performed pursuant to NRS 176.0918, 176.09183 and 176.09187 and the results were favorable to the petitioner; and
(d) When viewed with all other evidence in the case, regardless of whether such evidence was admitted during trial, the newly discovered evidence demonstrates the factual innocence of the petitioner.
3. In addition to the requirements set forth in subsection 2, a petition filed pursuant to subsection 1 must also assert that:
(a) Neither the petitioner nor the petitioner’s counsel knew of the newly discovered evidence at the time of trial or sentencing or in time to include the evidence in any previously filed post-trial motion or postconviction petition, and the evidence could not have been discovered by the petitioner or the petitioner’s counsel through the exercise of reasonable diligence; or
(b) A court has found ineffective assistance of counsel for failing to exercise reasonable diligence in uncovering the newly discovered evidence.
4. The court shall review the petition and determine whether the petition satisfies the requirements of subsection 2. If the court determines that the petition:
(a) Does not meet the requirements of subsection 2, the court shall dismiss the petition without prejudice, state the basis for the dismissal and send notice of the dismissal to the petitioner and the prosecuting agency.
(b) Meets the requirements of subsection 2, the court shall determine whether the petition satisfies the requirements of subsection 3. If the court determines that the petition does not meet the requirements of subsection 3, the court may:
(1) Dismiss the petition without prejudice, state the basis for the dismissal and send notice of the dismissal to the petitioner and the prosecuting agency; or
(2) Waive the requirements of subsection 3 if the court finds the petition should proceed to a hearing and that there is other evidence that could have been discovered through the exercise of reasonable diligence by the petitioner or the petitioner’s counsel at trial, and the other evidence:
(I) Was not discovered by the petitioner or the petitioner’s counsel;
(II) Is material upon the issue of factual innocence; and
(III) Has never been presented to a court.
5. Any second or subsequent petition filed by a person must be dismissed if the court determines that the petition fails to identify new or different evidence in support of the factual innocence claim or, if new and different grounds are alleged, the court finds that the failure of the petitioner to assert those grounds in a prior petition filed pursuant to this section constituted an abuse of the writ.
6. The court shall provide a written explanation of its order to dismiss or not to dismiss the petition based on the requirements set forth in subsections 2 and 3.
7. A person who has already obtained postconviction relief that vacated or reversed the person’s conviction or sentence may also file a petition pursuant to subsection 1 in the same manner and form as described in this section if no retrial or appeal regarding the offense is pending.
8. After a petition is filed pursuant to subsection 1, any prosecuting agency, law enforcement agency or forensic laboratory that is in possession of any evidence that is the subject of the petition shall preserve such evidence and any information necessary to determine the sufficiency of the chain of custody of such evidence.
9. A petition filed pursuant to subsection 1 must include the underlying criminal case number.
10. Except as otherwise provided in NRS 34.900 to 34.990, inclusive, the Nevada Rules of Civil Procedure govern all proceedings concerning a petition filed pursuant to subsection 1.
11. As used in this section:
(a) "Biological specimen" has the meaning ascribed to it in NRS 176.09112.
(b) "Forensic laboratory" has the meaning ascribed to it in NRS 176.09117.
(c) "Genetic marker analysis" has the meaning ascribed to it in NRS 176.09118.
(Added to NRS by 2019, 2977; A 2023, 1633)