                                                   1           94,
                                                   131 Nev., Advance Opinion
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                DEMARLO ANTWIN BERRY,                                   No. 66474
                Appellant,
                vs.
                THE STATE OF NEVADA,                                     FLED
                Respondent.
                                                                         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




                            2 Schlup'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 non-
                      constitutional 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. 3 This 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)


                          3 Berry'spetition 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. 4 The
                     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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