I N T H E S U P R E M E C O U RT O F T H E S TAT E O F N E VA D A

FREDERICK LEE STEESE,

No. 54344

Appellant,
v s .

THE STATE OF NEVADA.

Respondent.

FILED
NOV 0 5 2010
K LlNuEUAN
: ; m u r t

^RK

OEPUri CLERK

ORDER OF REVERSAL AND REMAND

This is an appeal from an order of the district court denying
appellant's post-conviction petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Elissa F. Cadish, Judge.
Appellant filed his petition on April 7, 2009, nearly 11 years
after this court's June 9, 1998, issuance of the remittitur from his direct

appeal. See Steese v. State. 114 Nev. 479, 960 P.2d 321 (1998).
Appellant's petition is therefore untimely filed. See NRS 34.726(1), It is
also successive and an abuse of the writ.' See NRS 34.810(l)(b)(2): NRS
34.810(2). Thus, appellant's petition is procedurally barred absent a
demonstration of good cause and actual prejudice. See NRS 34.726(1);
NRS 34.810(l)(b); NRS 34.810(3). Further, because the State specifically
pleaded laches, appellant is required to overcome the presumption of
prejudice to the State. See NRS 34.800(2).
^See Steese v. State. No. 35404 (Order Affirming in Part, Reversing
in Part and Remanding, January 21, 2003) (appellant did not appeal the
denial of his petition after remand); Steese v. State. No. 43553 (Order of
Affirmance, November 24, 2004).

S u PA E M e C o u r t
O F

N e v a d a

lO)

 Appellant does not argue that he has good cause, but rather
that his procedural defects should be excused because he is actually
innocent. When a petitioner raises constitutional claims that are
otherwise procedurally barred, he may overcome those bars and have his
claims decided on the merits if he presents new, rehable evidence of his
i n n o c e n c e t h a t e r o d e s c o n fi d e n c e i n t h e o u t c o m e o f t h e t r i a l , S c h l u p v.

Delp, 513 U.S. 298, 316 (1995); PeUesrini v. State. 117 Nev. 860, 887, 34
P.3d 519, 537 (2001). In rejecting appellant's actual-innocence claim, the
district court improperly conflated the constitutional-claim and new-

evidence requirements, denying appellant's petition as procedurally
barred because the new evidence did not itself implicate a constitutional
violation. Here, appellant's petition raises several claims of constitutional
error, and he presents new evidence that, if reliable, may erode confidence

in the trial's outcome. Appellant is therefore entitled to an evidentiary
hearing on his actual-innocence claims. See Hargrove v. State. 100 Nev.
498, 502-03, 686 P.2d 222, 225 (1984) (holding that appellants are entitled

to evidentiary hesirings where they make specific factual allegations that,
if true, would entitle them to rehef).
At the evidentiary hearing, the district court must determine

whether appellant's new evidence is reliable and, if so, whether appellant
has demonstrated that, in light of all the evidence, "it is more likely than
not that no reasonable juror would have found [him] guilty beyond a
reasonable doubt." Schlup. 513 U.S. at 327; accord Pellegrini. 117 Nev. at
887, 34 P.3d at 537. The district court must consider the credibility of
affiant Robert Steese and weigh the evidence presented at trial in light of
the new evidence in order to determine if appellant met his burden of
proof. See Schlup. 513 U.S. at 330. Finally, if the district court

2

 determines that appellant's evidence demonstrates actual innocence,
appellant has overcome the procedural bar, and the district court must
address on the merits the constitutional claims raised in appellant's
petition, again starting with whether appellant is entitled to an
evidentiary hearing on those claims.
For the foregoing reasons, we
ORDER the judgment of the district court REVERSED AND

REMAND this matter to the district court for proceedings consistent with
t h i s o r d e r. 2

Hardesty

Douglas

Pickering

^Because we are reversing the decision and remanding this case to

the district court, we need not address appellant's arguments regarding
the phone records and statements of R. Rock.
Further, appellant's request for post-conviction genetic marker
(DNA) analysis must be pursued through the provisions of NRS 176.0918.
All other requests for discovery raised in the petition should be pursued
through motions filed with the district court.

Supreme Court
O F

Nevada

'/• V'.'. A'-' ' .'V '*9

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

SuPKEMe COJRT
O F

Nevada

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