                 34.810(2). To the extent that the petition raised claims which could have
                 been raised in a prior proceeding, the petition constituted an abuse of the
                 writ. NRS 34.810(1)(b). The petition was therefore procedurally barred
                 absent a demonstration of good cause and prejudice. NRS 34.726(1); NRS
                 34.810(1)(b), (3).
                              The State also pleaded laches. Under NRS 34.800, a petition
                 may be dismissed if the delay in filing the petition prejudices the State.
                 NRS 34.800(1). Prejudice is presumed when a petition is filed five years
                 after a decision on direct appeal of a judgment of conviction.     See   NRS
                 34.800(2). NRS 34.800 bars claims unless the petitioner can demonstrate
                 that he was reasonably diligent in discovering the facts underlying his
                 petition to overcome the presumed prejudice to the State in responding to
                 the petition, see NRS 34.800(1)(a), or that the failure to consider the
                 petition amounts to a fundamental miscarriage of justice to overcome the
                 presumed prejudice to the State in retrying the defendant,         see   NRS
                 34.800(1)(b). NRS 34.800 may consequently bar petitions even though a
                 petitioner can show good cause and actual prejudice to satisfy NRS 34.726
                 and NRS 34.810. Therefore, even if Lopez could demonstrate that the
                 district court erred in concluding that he failed to demonstrate good cause
                 and prejudice, he has not asserted that the district court erred in applying
                 the more onerous laches bar set forth in NRS 34.800. His failure to
                 challenge the district court's application of laches warrants affirmance of
                 the district court's decision. Nevertheless, we address his arguments
                 concerning good cause and prejudice to determine whether the district
                 court erred in concluding that the allegations failed to overcome the
                 presumption of prejudice.



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                                As cause to overcome the procedural default rules, Lopez
                    contends that the State violated Brady v. Maryland, 373 U.S. 83 (1963) in
                    failing to disclose evidence related to: (1) hair fibers; (2) Arturo Montes, a
                    purported witness to Lopez's abuse; and (3) Maria Lopez, Lopez's wife.
                    Brady obliges a prosecutor to reveal evidence favorable to the defense
                    when that evidence is material to guilt, punishment, or impeachment.
                    Brady, 373 U.S. at 87; Mazzan v. Warden, 116 Nev. 48, 66-67, 993 P.2d 25,
                    36-37 (2000) (identifying the three components of a successful Brady
                    claim). As the State pleaded laches, Lopez must demonstrate that he
                    could not have discovered the Brady evidence "by the exercise of
                    reasonable diligence," NRS 34.800(1)(a), and that the evidence
                    demonstrates a fundamental miscarriage of justice occurred, NRS
                    34.800(1)(b). See also Rippo v. State, 113 Nev. 1239, 1257, 946 P.2d 1017,
                    1028 (1997) ("[A] Brady violation does not result if the defendant,
                    exercising reasonable diligence, could have obtained the information."). A
                    fundamental miscarriage of justice requires "a colorable showing" that the
                    petitioner is "actually innocent of the crime or is ineligible for the death
                    penalty." Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
                                Hair evidence
                                Lopez contends that the State failed to disclose evidence
                    related to hair fibers that he asserts undermines the State's expert
                    testimony at trial. During the litigation of his federal habeas petition,
                    Lopez obtained (1) crime scene analyst Carla Noziglia's report about hair
                    recovered from the crime scene, (2) Noziglia's bench notes, and (3) a
                    property report noting that Deputy District Attorney (DDA) Ray Jeffers
                    instructed a detective to take possession of a brown extension cord that
                    was purportedly used to abuse the victim but was not introduced at trial.

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                  Lopez also deposed Dan Berkabile, the expert who testified at trial, about
                  Noziglia's notes.
                              We conclude that Lopez failed to demonstrate that he
                  employed reasonable diligence in discovering Noziglia's report and notes.
                  See NRS 34.800(1)(a); McClesky v. Zant, 499 U.S. 467, 498 (1991) (noting a
                  "petitioner must conduct a reasonable and diligent investigation aimed at
                  including all relevant claims and grounds for relief' in a first post-
                  conviction petition). The trial record informed Lopez in 1985 that Noziglia
                  performed some work on the hair fiber evidence. Although the State
                  described her work as irrelevant, Lopez eventually disagreed with that
                  representation and sought her bench notes during discovery in his second
                  federal habeas petition. He did not allege that he requested the Noziglia
                  documents during the litigation of a prior state or federal petition or the
                  State improperly withheld them during either of those proceedings. Lopez
                  further failed to demonstrate that the reports and physical evidence were
                  exculpatory and therefore the withholding of them amounted to a
                  fundamental miscarriage of justice.       See NRS 34.800(1)(b). Berkabile's
                  testimony and Noziglia's report were not so materially inconsistent as to
                  demonstrate his actual innocence. They agreed that the hairs taken from
                  the cords and macrame holder were consistent with Jessica's hair. The
                  testimony and reports indicate that the experts tested different hair fibers;
                  therefore, inconsistencies in the length of the hair fibers did not
                  undermine the trial testimony. Moreover, even if Noziglia's report and
                  notes impeached Berkabile's conclusion to some extent, Lopez failed to
                  demonstrate that no rational juror would have found him guilty. Maria's
                  testimony about Lopez repeatedly hanging Jessica by her hair was
                  supported by other physical evidence: hair removed from the macrame

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                holder was only consistent with Jessica's hair; damage to the closet was
                consistent with Maria's description of Jessica falling from the closet rod
                she had been hung on; and the medical examiner testified that it would
                take considerable force to remove the amount of hair from Jessica's head
                that was missing at the time of her death. As Maria asserted that Lopez
                used the cord that was not introduced at trial in the abuse, it was not
                exculpatory evidence and the State had no duty to disclose it. See Furbay
                v. State, 116 Nev. 481, 487, 998 P.2d 553, 557 (2000) ("The prosecutor is
                under no general duty to provide inculpatory, as opposed to exculpatory,
                evidence to the defense."). However, the failure to disclose this evidence
                violated the State's open file policy.     See id. ("When the prosecution
                purports to give all inculpatory evidence in its control, it may not withhold
                evidence for later use."). Nevertheless, Lopez has failed to demonstrate
                that the failure to disclose evidence which could further inculpate him in
                criminal activity amounted to a fundamental miscarriage of justice.
                            Arturo Montes evidence
                            Lopez argues that the State withheld evidence that impeached
                Montes' testimony that he saw Lopez abuse Jessica. During the litigation
                of his federal petition, Lopez received (1) arrest and detention records from
                the Las Vegas Metropolitan Police Department (LVMPD) indicating that
                Montes was incarcerated in the Clark County Detention Center on the
                dates he claimed to have seen Lopez abuse Jessica; (2) witness vouchers in
                the Clark County Comptroller's Office indicating that Montes had been
                compensated by the Clark County District Attorney's Office for pretrial
                interviews with the district attorney's office and three post-trial meetings;
                (3) a declaration from Maria's aunt declaring that Montes was not a friend
                of the family and did not baptize her daughter as he claimed during trial;

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                  and (4) a declaration from Montes' half-brother, Carlos Montes, stating
                  that Montes had never married and did not have a child as he claimed
                  during tria1. 1 When confronted with this evidence, Montes recanted his
                  trial testimony and accused the State of pressuring him to testify falsely
                  during the trial.
                              We conclude that Lopez failed to demonstrate that the facts
                  underlying his claim could not have been discovered sooner through the
                  exercise of reasonable diligence. Lopez knew Montes made false claims
                  about being Maria's brother in 1986. Based on that knowledge,
                  reasonably diligent counsel should have investigated Montes' credibility.
                  Lopez could have then uncovered that Montes lied about being married,
                  having a child, and baptizing Jessica's cousin within the time period for
                  filing a timely post-conviction petition. Further, as the evidence
                  undermining these aspects of Montes' testimony was provided by his
                  family members, Lopez cannot demonstrate that reliance on the State's
                  open file policy hindered his exercise of reasonable diligence. Post-
                  conviction counsel acknowledged that he could have run a background
                  check on Montes which would have revealed any arrests. Thereafter,
                  reasonable diligent counsel would have investigated Montes' custody
                  status as a result of those arrests. Lastly, Lopez failed to demonstrate
                  that the prosecution was in possession of evidence that Montes was in jail


                        'Lopez also asserted that the trial record indicated that the State
                  had conducted a National Crime Information Center check on Montes. He
                  contended that the report would have shown that the State was aware
                  that Montes was in custody at the time he purportedly witnessed abuse to
                  which he testified at trial and thus would prove that the State suborned
                  perjury. However, the disclosure revealed that the document had been
                  mislabeled and was actually a Department of Motor Vehicles report.


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                during the time period he asserted he saw Jessica abused.          See United
                States v. Blanco, 392 F.3d 382, 393-94 (9th Cir. 2004) (noting obligation to
                disclose    Brady   evidence in the possession of the prosecutor or
                investigating agency). While the prosecution has an obligation to disclose
                Brady evidence in the possession of the prosecutor or investigative agency,
                the detention center holding Montes was not involved in investigating
                Lopez.     See, e.g., United States v. Rodriguez, 360 F. App'x 743, 747 (9th
                Cir. 2009) (providing that prosecution was not deemed to possess evidence
                of attack on codefendant in prison because the prison was not an
                investigating agency). In addition, considering Maria's testimony and the
                physical evidence, Lopez failed to demonstrate that no reasonable juror
                would have convicted him
                              Maria Lopez evidence
                              Lopez contends that a newly disclosed Notice of Denial of
                Request to prosecute Maria and a detective's statements during her
                interview demonstrate that the State's decision not to prosecute her was
                arrived at too swiftly. He further contends that Rosaura Tanon's records,
                statements that indicated that the police feared Maria might flee the
                jurisdiction, statements that detectives made a deal with Maria for her
                testimony, and evidence that immigration and other state benefits were
                sought for Maria indicate that her testimony was not credible. 2


                      Lopez also contends that a correspondence between Ted Salazar
                      2

                and the district attorney's office contradicts DDA Jeffers' representation
                during argument on a motion for mistrial based on a Brady violation, that
                he did not know that Salazar was translating for Maria's interviews.
                However, as this evidence relates to the State's representations during a
                motion and has no bearing on Lopez's guilt or innocence, it is insufficient
                to demonstrate a fundamental miscarriage of justice.


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                            We conclude that Lopez failed to demonstrate that he
                exercised reasonable diligence in discovering this evidence. Much of the
                evidence that Lopez relied upon concerning Maria was not in the
                possession of the State.    See Strickler v. Greene, 527 U.S. 263, 287-88
                (1999) ("In the context of a Brady claim, a defendant cannot conduct the
                'reasonable and diligent investigation' mandated by McClesky to preclude
                a finding of procedural default when the evidence is in the hands of the
                State."). He obtained the documents through record requests to a victims'
                organization and the Immigration and Naturalization Service (INS).
                Lopez could have also obtained statements about threats by the
                prosecution prior to the instant petition. Because he received these
                documents from individuals and other agencies, he could not assert that
                the reliance on the State's open file policy impeded his ability to discover
                these documents in prior post-conviction litigation.     See Steese v. State,
                114 Nev. 479, 495, 960 P.2d 321, 331 (1998) ("Brady does not require the
                State to disclose evidence which is available to the defendant from other
                sources, including diligent investigation by the defense.").
                            Moreover, Lopez failed to demonstrate that the failure to
                consider the evidence would result in a fundamental miscarriage of
                justice. Tanon's opinion as to Maria's credibility was not admissible.    See
                Perez v. State, 129 Nev., Adv. Op. 90, 313 P.3d 862, 870 (2013) ("A witness
                may not vouch for the testimony of another or testify as to the
                truthfulness of another witness."). Contrary to Lopez's assertion, the INS
                records do not indicate that the State sought permanent immigration
                benefits for Maria prior to her testimony; the State only requested that the
                INS refrain from deporting Maria until after she had testified in the case.
                Further, the records indicated that Maria was already familiar with and

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                      was receiving state welfare benefits and it does not indicate that the State
                      secured her benefits in addition to what she was already receiving Lopez
                      cannot demonstrate that no rational juror would have concluded that
                      Maria's testimony was believable because she received the alleged
                      inducements. Therefore, the district court did not err in denying this
                      claim as barred by laches under NRS 34.800.
                      Fundamental miscarriage of justice
                                   Lopez argues that the district court erred in denying his
                      separate claims of actual innocence of first-degree murder and of the death
                      penalty. A fundamental miscarriage of justice requires "a colorable
                      showing" that the petitioner is "actually innocent of the crime or is
                      ineligible for the death penalty." Pellegrini, 117 Nev. at 887, 34 P.3d at
                      537 This requires the petitioner to present new evidence of his innocence.
                      See House v. Bell, 547 U.S. 518, 537 (2006) ("[A] gateway claim requires
                      'new reliable evidence—whether it be exculpatory scientific evidence,
                      trustworthy eyewitness accounts, or critical physical evidence—that was
                      not presented at trial." (quoting Schlup u. Delo, 513 U.S. 298, 324 (1995));
                      Schlup, 513 U.S. at 316 ("Without any new evidence of innocence, even the
                      existence of a concededly meritorious constitutional violation is not in
                      itself sufficient to establish a miscarriage of justice that would allow a
                      habeas court to reach the merits of a barred claim."). When claiming a
                      fundamental miscarriage of justice based on actual innocence, the
                      petitioner "must show that it is more likely than not that no reasonable
                      juror would have convicted him absent a constitutional violation."
                      Pellegrini, 117 Nev. at 887, 34 P.3d at 537. In this context, "actual
                      innocence means factual innocence, not mere legal insufficiency." Mitchell
                      v. State,   122 Nev. 1269, 1273-74, 149 P.3d 33, 36 (2006) (internal

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                      quotation marks and citations omitted). Similarly, when claiming a
                      fundamental miscarriage of justice based on ineligibility for the death
                      penalty, the petitioner "must show by clear and convincing evidence that,
                      but for a constitutional error, no reasonable juror would have found him
                      death eligible." Pellegrini, 117 Nev. at 887, 34 P.3d at 537.
                                  Actual innocence of first-degree murder
                                  Lopez argues that the district court erred in denying his claim
                      that he is actually innocent of first-degree murder based on newly
                      discovered evidence about Montes. 3 We conclude that, despite Montes'
                      perjury, having considered all of the available evidence, Lopez has not
                      satisfied his heavy burden to prove that the failure to consider his
                      constitutional claim would result in a fundamental miscarriage of justice
                      because some reasonable jurors would believe Maria's testimony and not
                      have reasonable doubt about his guilt. At trial, the jury chose to believe
                      Maria and convict Lopez. Her subsequent recantation, in and of itself, is
                      not sufficient to undermine her trial testimony.      See Baldree v. Johnson,
                      99 F.3d 659, 663 (5th Cir. 1996) (noting that "affidavits which recant
                      witnesses' trial testimony are viewed with extreme suspicion by the
                      courts"). She recanted while surrounded by Lopez's family and repeatedly


                            3 Lopez  also asserts that the district court employed the wrong legal
                      standard and excluded exculpatory evidence from its consideration, did
                      not consider the "cumulative exculpatory effect of Maria's recantation as
                      compared against her trial testimony," and failed to consider other
                      exculpatory physical evidence. We disagree. Although initially concluding
                      that it should not consider all of the post-trial information in its actual-
                      innocence analysis because it was not all newly discovered, the district
                      court also• concluded in its order that "even if [all of] this [post-trial]
                      information could be considered, the Court still cannot conclude, by the
                      appropriate standard, that no reasonable juror would have convicted
                      Petitioner or sentenced him to death."

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                expressed a desire to end the interview. Although she denied that Lopez
                burned Jessica and hung her by her hair, she did not disavow his other
                abuse which included him striking her head on surfaces in the home. In
                subsequent interviews, she was evasive about the details surrounding
                Jessica's death but stated that she believed Lopez was guilty. In addition,
                the remaining evidence Lopez contends undermines Maria's trial
                testimony is insufficient to demonstrate actual innocence. The INS
                records do not support the contention that the State sought permanent
                benefits for Maria. The record also indicates that the family had already
                been receiving state welfare benefits prior to the murder.
                            Actual innocence of the death penalty
                             Lopez argues that the district court erred in denying his claim
                that he is actually innocent based on invalid aggravating circumstances.
                He contends that the depravity-of-mind aggravating circumstance found
                by the jury has no basis in law and the torture aggravating circumstance
                instructions did not inform the jury that the torture "must be intended to
                inflict pain beyond the killing itself."
                             We conclude that this argument lacks merit. The jury found
                two aggravating circumstances: the murder involved (1) torture and (2)
                depravity of mind. Since the verdict, this court has concluded that the
                depravity-of-mind aggravating circumstance, in and of itself, is not a valid
                aggravating circumstance upon which to find a defendant death eligible.
                See Smith v. State,    114 Nev. 33, 37 n.3, 953 P.2d 264, 266 n.3 (1998);
                Domingues v. State, 112 Nev. 683, 702, 917 P.2d 1364, 1377 (1996); Robins
                v. State, 106 Nev. 611, 629, 798 P.2d 558, 570 (1990); see also Godfrey v.
                Georgia, 446 U.S. 420 (1980). Here, however, the jury also found a
                separate aggravating circumstance, torture. Lopez contends that this

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                aggravating circumstance is also invalid because the jury was not
                instructed that the torture had to be some act of physical abuse beyond the
                act of killing itself.   See Robins, 106 Nev. at 629, 798 P.2d at 570;
                Domingues, 112 Nev. at 702, 917 P.2d at 1377; Smith, 114 Nev. at 37 n.3,
                953 P.2d at 266 n.3. 4 While Lopez may be correct about the instruction,
                this instructional error does not make the torture aggravating
                circumstance invalid. Had the jury been properly instructed that the
                torture aggravating circumstance required some act of physical abuse
                beyond the act of killing itself, some reasonable jurors would have believed
                Maria's testimony and concluded that his acts of abuse satisfied the
                torture aggravating circumstance making him eligible for the death
                penalty.   See Pellegrini, 117 Nev. at 887, 34 P.3d at 537. For these
                reasons, Lopez cannot demonstrate that the failure to consider his petition
                would result in a fundamental miscarriage of justice.'




                      4 Lopez also contends that the torture aggravating circumstance
                instruction removed the element of malice from the jury's consideration.
                Lopez is mistaken. Malice is supplied by the definition of torture. See
                Hernandez v. State, 124 Nev. 978, 985, 194 P.3d 1235, 1239 (2008),
                overruled on other grounds by Armenta-Carpio v. State, 129 Nev., Adv. Op.
                54, 306 P.3d 395 (2013).

                      "Lopez also argues that his substantive constitutional claims require
                the reversal of his conviction and death sentence. However, as he failed to
                demonstrate that the district court erred in applying the procedural bars,
                consideration of these claims is unnecessary.


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                              Having considered Lopez's contentions and concluded that
                 they lack merit, we
                              ORDER the judgment of the district court AFFIRMED.G



                    At at-X.\
                 Hardesty
                                         , C.J.
                                                            Parraguicre


                                               J.                                        J.
                 Dou



                 Gibbons


                 CHERRY, J., dissenting:
                              I respectfully dissent. In my view, the district court erred in
                 concluding that Lopez failed to overcome the bar of laches regarding his
                 claim concerning Arturo Montes' perjury. I further conclude that the jury
                 instruction regarding torture amounted to a fundamental miscarriage of
                 justice as Lopez was ineligible for the death penalty.
                 Montes' perjured testimony
                              As cause to overcome the procedural bars, Lopez argued that
                 the State violated Brady v. Maryland, 373 U.S. 83 (1963), in failing to
                 disclose evidence that Montes committed perjury. This evidence included
                 (1) records indicating that Montes was incarcerated on the dates he


                       6 We
                          deny the State's motion to strike portions of the reply brief as
                 moot. We also deny Lopez's "Motion to Transmit Prosecution File Under
                 Seal."

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                 claimed to have seen Lopez abuse Jessica; (2) vouchers indicating that
                 Montes had been compensated for pretrial interviews and post-trial
                 meetings; (3) a declaration from Maria's aunt declaring that Montes was
                 not a friend of the family and did not baptize her daughter as he claimed
                 during trial; and (4) a declaration from Montes' half-brother, Carlos
                 Montes, stating that Montes had never married and did not have a child
                 as he claimed during trial When confronted with this evidence, Montes
                 recanted his trial testimony and accused the State of pressuring him to
                 testify falsely during the trial.
                              To overcome the burden of laches, Lopez needed to
                 demonstrate that he was reasonably diligent in discovering the facts
                 underlying his petition to overcome the presumed prejudice to the State in
                 responding to the petition, see NRS 34.800(1)(a); see also Rippo v. State,
                 113 Nev. 1239, 1257, 946 P.2d 1017, 1028 (1997) ("[A] Brady violation does
                 not result if the defendant, exercising reasonable diligence, could have
                 obtained the information."), and that the failure to consider the petition
                 amounts to a fundamental miscarriage of justice to overcome the
                 presumed prejudice to the State in retrying him, see NRS 34.800(1)(b);
                 Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001) (providing
                 that a fundamental miscarriage of justice requires "a colorable showing"
                 that the petitioner is "actually innocent of the crime or is ineligible for the
                 death penalty"). The majority concludes that Lopez failed to overcome the
                 bar of laches because much of the evidence could have been obtained
                 sooner by diligent counsel and that Lopez failed to demonstrate that no
                 reasonable juror would have convicted him had this evidence been
                 presented. I disagree with both these conclusions.



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                                 I conclude that diligent counsel could not have discovered all
                  the evidence underlying Lopez's claim regarding Montes. Arguably, much
                  of the evidence presented was obtained from interviewing members of
                  Montes' and the victim's families. However, defense attorneys do not have
                  unlimited resources to chase down every lead that presents itself.        See
                  Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (recognizing that a
                  defense case does not "contemplate the employment of wholly unlimited
                  time and resources"). They must make reasonable investigations with the
                  time and resources at their disposal. The majority conclusion hinges a
                  great deal on the fact that counsel could have launched an investigation
                  into Montes based on his comment to a reporter in 1986. This issue was
                  litigated in a motion for a new trial that was denied. Defense counsel
                  could not be expected to deploy more of its resources on an avenue of
                  investigation that did not yield results. Moreover, Montes' arrest and
                  detention records, which conclusively refuted his testimony about
                  witnessing abuse by Lopez, were in the possession of the State. Therefore,
                  even the most diligent counsel could not be expected to have recovered this
                  evidence absent the cooperation of the State.      See Banks v. Dretke, 540
                  U.S. 668, 695-96 (2004) (noting that "[o]ur decisions lend no support to the
                  notion that defendants must scavenge for hints of undisclosed Brady
                  material when the prosecution represents that all such material has been
                  disclosed").
                                 The majority also concludes that, even if counsel was
                  reasonably diligent in uncovering the evidence related to Montes, Lopez
                  failed to demonstrate that no reasonable juror would have convicted him.
                  I do not share the majority's view of the strength of the evidence against
                  Lopez. Physical evidence showed that Jessica had been abused and what

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                implements were used to perpetrate this abuse. But that evidence did not
                identify the abuser. The only evidence that Lopez was responsible for the
                abuse was Maria's testimony that Lopez abused Jessica on many occasions
                and Montes' testimony that he witnessed Lopez drag Jessica off by her
                hair. Thus, the only witnesses that pointed to Lopez's guilt were Maria—
                the only other adult responsible for Jessica's care and another possible
                perpetrator of the abuse—and Montes, whose testimony was rendered
                wholly incredible by the undisclosed Brady evidence.
                            The majority relies on Maria's testimony as a sufficient basis
                on which the jury could have concluded that Lopez was responsible for
                Jessica's death regardless of the veracity of Montes' testimony. However,
                Maria's testimony is problematic for many reasons. First, Maria's
                testimony contained notable inconsistencies. When questioned by police,
                she was not forthright with the investigators and did not immediately
                implicate Lopez in the abuse. Her testimony was inconsistent regarding
                when she contends that Lopez burned Jessica, how the burns occurred,
                and how she discovered the burns. Further, her testimony that much of
                the abuse occurred in her home without her knowledge or intervention
                and that she left her severely burnt four-year-old child alone to attend a
                party at her in-laws' residence was inconsistent with what one would
                expect of a reasonable person exercising common sense. Second, when
                questioned by the police about the crimes, whether or not the belief was
                encouraged by the officers, Maria appeared to believe that the State
                offered her a plea deal and would not prosecute her if it prosecuted Lopez.
                Third, several years after Maria testified, she left the country and
                recanted her testimony.



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                            Therefore, as the State failed to turn over evidence that
                completely undermined Montes' testimony and the remaining evidence
                against Lopez did not conclusively point to his guilt, I conclude that the
                district court erred in denying Lopez's petition as barred by laches.
                Torture instruction
                            I also conclude that the district court erred in denying Lopez's
                claim that he is actually innocent based on an invalid torture aggravating
                circumstance because, in my view, but for the instructional error, "no
                reasonable juror would have found him death eligible."        Pellegrini, 117
                Nev. at 887, 34 P.3d at 537. The jury found two aggravating
                circumstances: the murder involved (1) torture and (2) depravity of mind
                As recognized by the majority decision, the latter circumstance is invalid.
                See Smith v. State,   114 Nev. 33, 37 n.3, 953 P.2d 264, 266 n.3 (1998);
                Domingues v. State, 112 Nev. 683, 702, 917 P.2d 1364, 1377 (1996); Robins
                v. State, 106 Nev. 611, 629, 798 P.2d 558, 570 (1990); see also Godfrey v.
                Georgia, 446 U.S. 420 (1980). Although the jury also found the torture
                aggravating circumstance, the instruction failed to includeS necessary
                language that "the murderer must have intended to inflict pain beyond the
                killing itself." Domingues v. State, 112 Nev. 683, 702, 917 P.2d 1364, 1377
                (1996).
                            I conclude that had the jury been properly instructed that the
                torture aggravating circumstance required some act of physical abuse
                beyond the act of killingS itself, no reasonable juror would have found
                Lopez death eligible. "[M]ost murders do not qualify as torture murders."
                Id. at 702 n.6, 917 P.2d at 1377 n.6. It is difficult to prove that the murder
                was committed with the "intent to inflict pain beyond the killing itself'



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                  and for the purpose of "revenge, extortion, persuasion," or some "sadistic[ 7   ]




                  purpose." Hernandez v. State, 124 Nev. 978, 984, 194 P.3d 1235, 1239
                  (2008), overruled on other grounds by Armenta-Carpio v. State, 129 Nev.
                  Adv. Op. 54, 306 P.3d 395 (2013). Thus, the burden of showing a murder
                  by torture is a difficult one to meet as demonstrated by cases with far
                  more compelling evidence that nonetheless failed to meet that burden. In
                  Chappell v. State, 114 Nev. 1403, 1410, 972 P.2d 838, 842 (1998), the
                  defendant severely beat the victim and stabbed her in the groin, chest, and
                  neck. Some of the wounds even penetrated the spinal cord. Id. This court
                  concluded that the pattern of violence against the victim was not sufficient
                  for the jury to conclude that "the [defendant] intended to cause [the
                  victim] cruel suffering for the purposes of revenge, persuasion, or other
                  sadistic pleasure" and did not "rise to the level of torture."   Id.   And in

                  Domingues, 112 Nev. at 702-03, 917 P.2d at 1378, this court concluded
                  that the defendant's attempted electrocution and repeated stabbing of a
                  child did not amount to torture.
                                The facts presented in this case do not show that Lopez
                  engaged in acts intending to inflict pain beyond the killing itself. The
                  evidence showed that Lopez's repeated acts of abuse occurred while
                  disciplining Jessica. His reactions to her perceived misbehavior were
                  excessive and the methods employed to address the behavior were rash


                        7 TheAmerican Heritage Concise Dictionary defines "sadism" as
                  "[t]he association of sexual gratification with the infliction of pain on
                  others" or the "delight in cruelty."     The American Heritage Concise
                  Dictionary 722 (3d ed. 1994); see also Webster's Third New International
                  Dictionary 1997-98 (2002) ("the infliction of pain upon a love object as a
                  means of obtaining sexual release" or the "delight in physical or mental
                  cruelty").


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                       and horrendously cruel. But the evidence did not indicate that Lopez
                       delighted or took sadistic pleasure in the cruelty in which he engaged.
                       Further, the acts, in and of themselves, caused pain, but were insufficient
                       to cause the victim's death. In fact, the victim died due to an ulcer that
                       was caused by the aggregate abuse. As no act by Lopez was sufficient to
                       cause the victim's death, the acts could not be viewed as intended to inflict
                       pain above and beyond the killing. Accordingly, I conclude that the
                       district court erred in concluding that Lopez failed to demonstrate a
                       fundamental miscarriage of justice based on this claim.
                                   Consequently, I would reverse the district court order denying
                       Lopez's petition and remand with instructions to grant the petition.




                       cc:   Hon. Kenneth C. Cory, District Judge
                             Federal Public Defender/Las Vegas
                             Attorney General/Carson City
                             Clark County District Attorney
                             Eighth District Court Clerk




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(0) 1947A    441p4),
