BRIAN KERRY KEEFE v. THE STATE OF NEVADA (2025)

ORDER REVERSING IN PART, DISMISSING IN PART, AND REMANDING

Brian Kerry O'Keefe appeals from a district court order denying a petition to establish factual innocence filed on October 23, 2024. Eighth Judicial District Court, Clark County; Mary Kay Holthus, Judge.

O'Keefe argues the district court erred by denying his petition to establish factual innocence pursuant to NRS 34.960(4) and NRS 34.960(5), without conducting a hearing. Under the postconviction remedy established by the legislature in NRS 34.900-.990, a court reviewing a petition to establish factual innocence must first determine whether the petition meets the pleading requirements in NRS 34.960(2). To satisfy NRS 34.960(2), the petition “must contain an assertion of factual innocence [made] under oath by the petitioner and must aver, with supporting affidavits or other credible documents, that ․ [n]ewly discovered evidence exists that is specifically identified and, if credible, establishes a bona fide issue of factual innocence.” NRS 34.960(2)(a). Further, if the petitioner has previously filed a petition to establish factual innocence, the petitioner is required “to identify new or different evidence in support of the factual innocence claim.” NRS 34.960(5). If the petition does not meet the pleading requirements of NRS 34.690(2), the district court “shall dismiss the petition without prejudice.” NRS 34.960(4)(a). And if the petition does not meet the pleading requirements of NRS 34.960(5), the petition “must be dismissed.” NRS 34.960(5).

The district court found that O'Keefe did not allege new evidence in his petition as required by NRS 34.960(2). The district court also found O'Keefe had previously made the same allegation of factual innocence in a prior petition to establish factual innocence. The district court determined that O'Keefe’s petition did not meet the pleading requirements of either NRS 34.960(2) or NRS 34.960(5). The district court acknowledged in its order that it should dismiss the petition. However, rather than dismissing the petition without prejudice pursuant to NRS 34.960(4)(a), or dismissing the petition pursuant to NRS 34.960(5), the district court “denied” the petition. The district court's denial of the petition was in error because, upon concluding the petition did not satisfy the pleading requirements of NRS 34.960,¹ the district court's resolution of the petition was limited to dismissal of the petition. NRS 34.960(4)(a); NRS 34.960(5); see also Sanchez v. State, 140 Nev., Adv. Op. 78, 561 P.3d 35, 38 (2024). Thus, we reverse this portion of the appeal and remand for the district court to enter an order dismissing the petition.

O'Keefe also appeals the district court's decision to deny his motion for summary judgment. The denial of a motion for summary judgment is not an appealable order, and we lack jurisdiction to consider an appeal from the denial of this motion. See Taylor Constr. Co. v. Hilton Hotels Corp., 100 Nev. 207, 209, 678 P.2d 1152, 1153 (1984). Accordingly, we dismiss this portion of the appeal, and we

ORDER the judgment of the district court REVERSED IN PART, DISMISS the appeal IN PART, AND REMAND this matter to the district court for proceedings consistent with this order.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   We make no determination with respect to the merits of the district court's conclusion. See generally Sanchez v. State, 140 Nev., Adv. Op. 78, 561 P.3d 35 (2024).