                Appellant's petition was also successive and an abuse of the writ. 2 See
                NRS 34.810(2). Appellant's petition was procedurally barred absent a
                demonstration of good cause and actual prejudice.        See NRS 34.726(1);
                NRS 34.810(3). Moreover, because the State specifically pleaded laches,
                appellant was required to overcome the rebuttable presumption of
                prejudice to the State. NRS 34.800(2).
                            First, appellant argues that he has good cause to excuse the
                procedural bars because he did not receive his files from counsel until
                2008. Appellant fails to demonstrate good cause. Appellant did not
                attempt to obtain his files from counsel until nearly one year after entry of
                the judgment of conviction and thus has not demonstrated diligence in
                attempting to obtain his files. Accordingly, any delay in obtaining the files
                does not demonstrate good cause.
                            Second, relying in part on Martinez v. Ryan, 566 U.S.         132
                S. Ct. 1309 (2012), appellant argues that he has good cause to excuse the
                procedural bars because he did not have counsel in the first post-
                conviction proceedings. We conclude that this argument lacks merit. The
                appointment of counsel was discretionary in the first post-conviction
                proceedings, see NRS 34.750(1), and appellant fails to demonstrate an
                abuse of discretion. Further, this court has recently held that Martinez
                does not apply to Nevada's statutory post-conviction procedures.          See
                Brown v. McDaniel, 130 Nev. , 331 P.3d 867, 874 (2014).



                      2Israel   v. State, Docket No. 52609 (Order Dismissing Appeal,
                November 19, 2008).



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                            Third, appellant argues that he has good cause to excuse the
                procedural bars because the State violated its duty to provide the defense
                with the victim's medical records and the exculpatory statements of
                witnesses, in violation of Brady v. Maryland, 373 U.S. 83 (1963). A Brady
                violation occurs when "the evidence at issue is favorable to the accused;
                the evidence was withheld by the state, either intentionally or
                inadvertently; and prejudice ensued, i.e., the evidence was material."
                Mazzan v. Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000). "[P]roving
                that the State withheld the evidence generally establishes cause, and
                proving that the withheld evidence was material establishes prejudice."
                State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003). In assessing the
                materiality of withheld evidence in the context of a guilty plea, the court
                must consider the following factors:
                            (1) the relative strength and weakness of the
                            State's case and the defendant's case; (2) the
                            persuasiveness of the withheld evidence; (3) the
                            reasons, if any, expressed by the defendant for
                            choosing to plead guilty; (4) the benefits obtained
                            by the defendant in exchange for the plea; and (5)
                            the thoroughness of the plea colloquy.
                State v. Huebler, 128 Nev.    „ 275 P.3d 91, 99 (2012). Appellant fails
                to demonstrate good cause and prejudice. Appellant merely speculates
                that the witnesses who prepared the declarations in support of his petition
                had previously provided similar information to the State, and accordingly,
                he fails to demonstrate that the State withheld any evidence contained in
                the declarations. To the extent that the victim's medical records, which
                showed no physical injury to the victim, were favorable to the defense and
                withheld by the State, they were not material. Although the State's case


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                was not strong and the plea colloquy was not particularly thorough, the
                medical records showing no injury are not particularly persuasive where,
                as here, the alleged sexual assault was based on a brief touching of the
                victim's genitals that would not be expected to result in physical injury.
                Further, appellant received a significant benefit in exchange for his guilty
                plea in that he was sentenced for the sexual assault to a term of 5 to 20
                years when it should have been a term of 15 to 40 years or life with the
                possibility of parole after 20 years.   See 2003 Nev. Stat., ch. 461, § 1, at
                2825-26.
                            Appellant thus fails to demonstrate good cause to overcome
                the untimely, successive, and abusive nature of his petition. Those
                procedural bars may nevertheless be overcome by demonstrating that the
                failure to consider the petition would result in a fundamental miscarriage
                of justice. Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
                This may be demonstrated by showing that appellant is actually innocent,
                that is, that "'it is more likely than not that no reasonable juror would
                have convicted" him "in light of all the evidence,' both new and
                previously presented. Bousley v. United States, 523 U.S. 614, 623 (1998)
                (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)); see also Mazzan v.
                Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996). Yet even the
                demonstration of actual innocence would not, alone, overcome the
                rebuttable presumption of prejudice to the State occasioned by the delay in
                filing the instant petition. To rebut the presumed prejudice, appellant
                must demonstrate both actual innocence and "that the petition is based
                upon grounds of which the petitioner could not have had knowledge by the
                exercise of reasonable diligence before the circumstances prejudicial to the


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                State occurred." NRS 34.800(1); see also NRS 34.800(2). Appellant alleges
                facts that are not belied by the record, if true, may demonstrate actual
                innocence and overcome the presumption of prejudice to the State such
                that he would be entitled to have his underlying constitutional claims
                heard on their merits.
                              The district court's finding that the victim's declaration could
                have been discovered earlier with the exercise of reasonable diligence is
                not supported by evidence in the record. Rather, the evidence suggests the
                contrary. Appellant's post-conviction investigator noted that investigators
                had been in contact with the victim's parents since January 2010, that
                this most recent investigator had been in contact with them since April
                2012, and that the parents had refused to allow the investigator to speak
                with the victim before March 2013. The parents' apparent reluctance to
                allow the appellant's post-conviction team to speak with the victim
                suggests that appellant may not have been able to previously discover the
                victim's statement disavowing any penetration, even with the exercise of
                reasonable diligence.
                              The district court's conclusion that appellant's claim of
                fundamental miscarriage of justice was "unpersuasive" was also not
                supported by evidence in the record. 3 The evidence against appellant,


                      3 The  district court made no findings of fact to support this
                conclusion, although it cited, without any analysis, to Callier v. Warden,
                which established the standard for analyzing recantation testimony in a
                post-conviction petition for a writ of habeas corpus. 111 Nev. 976, 989,
                901 P.2d 619, 627 (1995). To the extent the district court implicitly found
                that the victim's declaration was not reliable because it was a recantation,
                such a finding is not supported by the evidence in the record. The victim's
                                                                    continued on next page...

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                 insofar as contained in the record before this court, was primarily the four-
                 year-old victim's statement to the police and testimony at the preliminary
                 hearing, as well as appellant's statement to the police. Appellant told the
                 detective that he had accidentally hit the victim with a piece of wood "in
                 her vagina," the victim was going to cry so he placed her on the edge of the
                 van into which he was loading the wood, and he pulled out her shorts and
                 rubbed her "vagina" briefly under her panties. When asked whether his
                 finger could have penetrated a little bit past the victim's vaginal lips,
                 appellant stated that he could not say. The victim told the detective that
                 appellant had grabbed her "tail" and, when asked what happened, related
                 that appellant put his hands inside her pants but over her panties. At the
                 preliminary hearing, the victim testified that appellant "poked" her under
                 her clothes with his finger, that "[i]t hurt," and that she was never inside
                 the van. The victim's mother testified that the victim told her the
                 following morning that it hurt when she urinated.
                             In support of his actual-innocence claim, appellant presents
                 two declarations by the victim, together relating that appellant had
                 accidentally hit her in her "private parts" with a piece of wood, she cried,
                 appellant placed her in the van and rubbed her "private parts" so it could
                 feel better, the act was not sexual in nature, and at no point did any part
                 of appellant's body enter her "genital opening" Based on the record before
                 this court, the victim's declarations, if credible, make it more likely than



                 ...continued
                 new declarations are not substantively inconsistent with either her earlier
                 statement to the police or her testimony at the preliminary hearing.



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                 not that no reasonable juror would have convicted appellant of sexual
                 assault because the declarations establish the absence of the element of
                 "sexual penetration," see NRS 200.366(1), or of kidnapping because the
                 movement was thus not for the purposes of committing sexual assault, see
                 NRS 200.310(1). 4
                             Because appellant's claims, if true, could overcome the
                 presumption of prejudice to the State, demonstrate actual innocence to
                 overcome the remaining procedural bars, and entitle him to have the
                 merits of his case addressed below, the district court erred in denying the
                 petition as procedurally barred without first conducting an evidentiary
                 hearing. Further, because the actual-innocence inquiry concerns factual
                 innocence, the State must be allowed to rebut appellant's claim of actual
                 innocence with "any admissible evidence of [appellant's] guilt even if that
                 evidence was not presented during [his] plea colloquy."   Bousley, 523 U.S.
                 at 624. For the foregoing reasons, we reverse the district court's order
                 dismissing the petition as procedurally barred for the failure to overcome
                 the presumption of prejudice to the State arising out of laches and to
                 demonstrate actual innocence, and we remand for the district court to
                 conduct an evidentiary hearing and make the appropriate findings.


                       4Appellant  need not demonstrate that he is actually innocent of the
                 lewdness charge because it is not a more serious charge that the State
                 forwent in the course of plea bargaining. See Bousley, 523 U.S. at 624.
                 Since the only alleged criminal contact between appellant and the victim
                 was the single contact with the victim's genitals, appellant could not have
                 been convicted of both sexual assault and lewdness. See Crowley v. State,
                 120 Nev. 30, 31, 83 P.3d 282, 284 (2004). Thus in pursuing the sexual
                 assault charge, the State did not forgo a more serious charge.



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                  Docket No. 64685
                              This court has recently held that post-conviction motions to
                  withdraw guilty pleas should be construed as post-conviction petitions for
                  a writ of habeas corpus. See Harris v. State, 130 Nev. , , 329 P.3d
                  619, 628 (2014). We note that the claims appellant raised in his motion
                  are substantially similar to those raised in his post-conviction petition for
                  a writ of habeas corpus, and we conclude that the district court did not err
                  in denying the motion.
                              For the foregoing reasons, we
                              ORDER the judgment of the district court in Docket No. 64685
                  AFFIRMED and the judgment of the district court in Docket No. 64393
                  REVERSED AND REMAND that matter to the district court for
                  proceedings consistent with this order.




                                                      Parraguirre


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                                                      Douglas
                                                              ui                      J.



                                                            tue-A
                                                         erry


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


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