Garcia (Jose) v. State

 RS 34.810(1)(b)(2); NRS 34.810(2). Appellant's petition was procedurally
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arred absent a demonstration of good cause and actual prejudice.
RS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3). Good cause must be an
impediment external to the defense and may be demonstrated when the
See
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
3 Actual 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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