NRS
34.960 Filing of petition; notice and copy of petition to be served on
prosecuting agency; contents; review by court; grounds for dismissal;
explanation of decision by court; preservation of evidence; proceedings
governed by Nevada Rules of Civil Procedure.
1. At any time after the expiration of the
period during which a motion for a new trial based on newly discovered evidence
may be made pursuant to NRS 176.515, a
person who has been convicted of a felony may petition the district court in
the county in which the person was convicted for a hearing to establish the
factual innocence of the person based on newly discovered evidence. A person
who files a petition pursuant to this subsection shall serve notice and a copy
of the petition upon the prosecuting agency.
2. A petition filed pursuant to subsection
1 must contain an assertion of factual innocence under oath by the petitioner
and must aver, with supporting affidavits or other credible documents, that:
(a) Newly discovered evidence exists that is
specifically identified and, if credible, establishes a bona fide issue of
factual innocence;
(b) The newly discovered evidence identified by
the petitioner:
(1) Establishes innocence and is material
to the case and the determination of factual innocence;
(2) Is not merely cumulative of evidence
that was known, is not reliant solely upon recantation of testimony by a
witness against the petitioner and is not merely impeachment evidence; and
(3) Is distinguishable from any claims
made in any previous petitions;
(c) If some or all of the newly discovered
evidence alleged in the petition is a biological specimen, that a genetic
marker analysis was performed pursuant to NRS
176.0918, 176.09183 and 176.09187 and the results were favorable
to the petitioner; and
(d) When viewed with all other evidence in the
case, regardless of whether such evidence was admitted during trial, the newly
discovered evidence demonstrates the factual innocence of the petitioner.
3. In addition to the requirements set
forth in subsection 2, a petition filed pursuant to subsection 1 must also
assert that:
(a) Neither the petitioner nor the petitioner’s
counsel knew of the newly discovered evidence at the time of trial or
sentencing or in time to include the evidence in any previously filed
post-trial motion or postconviction petition, and the evidence could not have
been discovered by the petitioner or the petitioner’s counsel through the
exercise of reasonable diligence; or
(b) A court has found ineffective assistance of
counsel for failing to exercise reasonable diligence in uncovering the newly
discovered evidence.
4. The court shall review the petition and
determine whether the petition satisfies the requirements of subsection 2. If
the court determines that the petition:
(a) Does not meet the requirements of subsection
2, the court shall dismiss the petition without prejudice, state the basis for
the dismissal and send notice of the dismissal to the petitioner and the
prosecuting agency.
(b) Meets the requirements of subsection 2, the
court shall determine whether the petition satisfies the requirements of
subsection 3. If the court determines that the petition does not meet the
requirements of subsection 3, the court may:
(1) Dismiss the petition without
prejudice, state the basis for the dismissal and send notice of the dismissal
to the petitioner and the prosecuting agency; or
(2) Waive the requirements of subsection 3
if the court finds the petition should proceed to a hearing and that there is
other evidence that could have been discovered through the exercise of
reasonable diligence by the petitioner or the petitioner’s counsel at trial,
and the other evidence:
(I) Was not discovered by the
petitioner or the petitioner’s counsel;
(II) Is material upon the issue of
factual innocence; and
(III) Has never been presented to a
court.
5. Any second or subsequent petition filed
by a person must be dismissed if the court determines that the petition fails
to identify new or different evidence in support of the factual innocence claim
or, if new and different grounds are alleged, the court finds that the failure
of the petitioner to assert those grounds in a prior petition filed pursuant to
this section constituted an abuse of the writ.
6. The court shall provide a written
explanation of its order to dismiss or not to dismiss the petition based on the
requirements set forth in subsections 2 and 3.
7. A person who has already obtained
postconviction relief that vacated or reversed the person’s conviction or
sentence may also file a petition pursuant to subsection 1 in the same manner
and form as described in this section if no retrial or appeal regarding the
offense is pending.
8. After a petition is filed pursuant to
subsection 1, any prosecuting agency, law enforcement agency or forensic
laboratory that is in possession of any evidence that is the subject of the
petition shall preserve such evidence and any information necessary to
determine the sufficiency of the chain of custody of such evidence.
9. A petition filed pursuant to subsection
1 must include the underlying criminal case number.
10. Except as otherwise provided in NRS 34.900 to 34.990, inclusive, the Nevada Rules of
Civil Procedure govern all proceedings concerning a petition filed pursuant to
subsection 1.
11. As used in this section:
(a) “Biological specimen” has the meaning
ascribed to it in NRS 176.09112.
(b) “Forensic laboratory” has the meaning
ascribed to it in NRS 176.09117.
(c) “Genetic marker analysis” has the meaning
ascribed to it in NRS 176.09118.
(Added to NRS by 2019,
2977; A 2023,
1633)
Notes of Decisions
Bennett (ashley) v. State, 2022 NV 29 (Nev. 2022).
· cites it 51× “970(3) provides that "the district court shall order a hearing on a petition to establish factual innocence if the court determines that the petition satisfies the pleading requirements set forth in subsections 2 and 3 of NRS 34.960 and "that there is a bona fide issue of…”
Sanchez (hugo) v. State, 561 P.3d 35 (Nev. 2024).
· cites it 26× “The district court dismissed the petition without prejudice, concluding that Sanchez failed to meet the pleading requirements under NRS 34.960. In this opinion, we consider an issue of first impression— whether an order dismissing a petition to establish factual innocence…”
Cochran (Scott) Vs. State, 472 P.3d 190 (Nev. 2020).
“We further note that a convicted person may file a petition to establish factual innocence pursuant to NRS 34.960. We express no opinion as to whether appellant can satisfy the procedural requirements for such a petition.”
— Nev. Rev. Stat. § 34.960(1) — 1 case
Sanchez (hugo) v. State, 561 P.3d 35 (Nev. 2024).
“The district court dismissed the petition without prejudice, concluding that Sanchez failed to meet the pleading requirements under NRS 34.960. In this opinion, we consider an issue of first impression— whether an order dismissing a petition to establish factual innocence…”
— Nev. Rev. Stat. § 34.960(2) — 2 cases
Bennett (ashley) v. State, 2022 NV 29 (Nev. 2022).
“970(3) provides that "the district court shall order a hearing on a petition to establish factual innocence if the court determines that the petition satisfies the pleading requirements set forth in subsections 2 and 3 of NRS 34.960 and "that there is a bona fide issue of…”
Sanchez (hugo) v. State, 561 P.3d 35 (Nev. 2024).
“The district court dismissed the petition without prejudice, concluding that Sanchez failed to meet the pleading requirements under NRS 34.960. In this opinion, we consider an issue of first impression— whether an order dismissing a petition to establish factual innocence…”
— Nev. Rev. Stat. § 34.960(2)(a) — 1 case
Bennett (ashley) v. State, 2022 NV 29 (Nev. 2022).
“970(3) provides that "the district court shall order a hearing on a petition to establish factual innocence if the court determines that the petition satisfies the pleading requirements set forth in subsections 2 and 3 of NRS 34.960 and "that there is a bona fide issue of…”
— Nev. Rev. Stat. § 34.960(2)(b) — 2 cases
Bennett (ashley) v. State, 2022 NV 29 (Nev. 2022).
“970(3) provides that "the district court shall order a hearing on a petition to establish factual innocence if the court determines that the petition satisfies the pleading requirements set forth in subsections 2 and 3 of NRS 34.960 and "that there is a bona fide issue of…”
Sanchez (hugo) v. State, 561 P.3d 35 (Nev. 2024).
“The district court dismissed the petition without prejudice, concluding that Sanchez failed to meet the pleading requirements under NRS 34.960. In this opinion, we consider an issue of first impression— whether an order dismissing a petition to establish factual innocence…”
— Nev. Rev. Stat. § 34.960(2)(b)(2) — 1 case
Bennett (ashley) v. State, 2022 NV 29 (Nev. 2022).
“970(3) provides that "the district court shall order a hearing on a petition to establish factual innocence if the court determines that the petition satisfies the pleading requirements set forth in subsections 2 and 3 of NRS 34.960 and "that there is a bona fide issue of…”
— Nev. Rev. Stat. § 34.960(2)(b)(3) — 1 case
Bennett (ashley) v. State, 2022 NV 29 (Nev. 2022).
“970(3) provides that "the district court shall order a hearing on a petition to establish factual innocence if the court determines that the petition satisfies the pleading requirements set forth in subsections 2 and 3 of NRS 34.960 and "that there is a bona fide issue of…”
— Nev. Rev. Stat. § 34.960(2)(d) — 2 cases
Bennett (ashley) v. State, 2022 NV 29 (Nev. 2022).
“970(3) provides that "the district court shall order a hearing on a petition to establish factual innocence if the court determines that the petition satisfies the pleading requirements set forth in subsections 2 and 3 of NRS 34.960 and "that there is a bona fide issue of…”
Sanchez (hugo) v. State, 561 P.3d 35 (Nev. 2024).
“The district court dismissed the petition without prejudice, concluding that Sanchez failed to meet the pleading requirements under NRS 34.960. In this opinion, we consider an issue of first impression— whether an order dismissing a petition to establish factual innocence…”
— Nev. Rev. Stat. § 34.960(3) — 2 cases
Bennett (ashley) v. State, 2022 NV 29 (Nev. 2022).
“970(3) provides that "the district court shall order a hearing on a petition to establish factual innocence if the court determines that the petition satisfies the pleading requirements set forth in subsections 2 and 3 of NRS 34.960 and "that there is a bona fide issue of…”
Sanchez (hugo) v. State, 561 P.3d 35 (Nev. 2024).
“The district court dismissed the petition without prejudice, concluding that Sanchez failed to meet the pleading requirements under NRS 34.960. In this opinion, we consider an issue of first impression— whether an order dismissing a petition to establish factual innocence…”
— Nev. Rev. Stat. § 34.960(3)(a) — 2 cases
Bennett (ashley) v. State, 2022 NV 29 (Nev. 2022).
“970(3) provides that "the district court shall order a hearing on a petition to establish factual innocence if the court determines that the petition satisfies the pleading requirements set forth in subsections 2 and 3 of NRS 34.960 and "that there is a bona fide issue of…”
Sanchez (hugo) v. State, 561 P.3d 35 (Nev. 2024).
“The district court dismissed the petition without prejudice, concluding that Sanchez failed to meet the pleading requirements under NRS 34.960. In this opinion, we consider an issue of first impression— whether an order dismissing a petition to establish factual innocence…”
— Nev. Rev. Stat. § 34.960(4) — 1 case
Bennett (ashley) v. State, 2022 NV 29 (Nev. 2022).
“970(3) provides that "the district court shall order a hearing on a petition to establish factual innocence if the court determines that the petition satisfies the pleading requirements set forth in subsections 2 and 3 of NRS 34.960 and "that there is a bona fide issue of…”
— Nev. Rev. Stat. § 34.960(4)(a) — 1 case
Sanchez (hugo) v. State, 561 P.3d 35 (Nev. 2024).
“The district court dismissed the petition without prejudice, concluding that Sanchez failed to meet the pleading requirements under NRS 34.960. In this opinion, we consider an issue of first impression— whether an order dismissing a petition to establish factual innocence…”
— Nev. Rev. Stat. § 34.960(5) — 1 case
Sanchez (hugo) v. State, 561 P.3d 35 (Nev. 2024).
“The district court dismissed the petition without prejudice, concluding that Sanchez failed to meet the pleading requirements under NRS 34.960. In this opinion, we consider an issue of first impression— whether an order dismissing a petition to establish factual innocence…”
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