TRINITY WALLMAN v. DWIGHT NEVON WARDEN NDOC (2026)

ORDER OF AFFIRMANCE

Trinity Wallman appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on June 26, 2025. Eighth Judicial District Court, Clark County; Mary Kay Holthus, Judge.

Wallman was convicted, pursuant to a guilty plea, of first-degree kidnapping, battery with the use of a deadly weapon resulting in substantial bodily harm, and attempted sexual assault. The judgment of conviction was entered on November 9, 2018, and Wallman did not file a direct appeal.

Wallman filed the instant petition more than six years after entry of the judgment of conviction. Thus, Wallman's petition was untimely filed. See NRS 34.726(1). Moreover, Wallman's petition was successive because she had previously filed a postconviction petition for a writ of habeas corpus that was decided on the merits.¹ See NRS 34.810(3). Wallman's petition was procedurally barred absent a demonstration of good cause and actual prejudice, see NRS 34.726(1); NRS 34.810(4), or a showing she is actually innocent such that “the failure to consider the petition on its merits would amount to a fundamental miscarriage of justice,” Berry v. State, 131 Nev. 957, 966, 363 P.3d 1148, 1154 (2015).

Wallman does not argue on appeal that the district court erred in determining she failed to demonstrate good cause to overcome the procedural bars. Rather, she contends the procedural bars should be excused because she is innocent of the charge of attempted sexual assault. To demonstrate a fundamental miscarriage of justice sufficient to overcome the procedural bars, “a petitioner must make a colorable showing of actual innocence—factual innocence, not legal innocence.” Brown v. McDaniel, 130 Nev. 565, 576, 331 P.3d 867, 875 (2014). “This means that the petitioner must show that it is more likely than not that no reasonable juror would have convicted [her] in the light of ․ new evidence.” Berry, 131 Nev. at 966, 363 P.3d at 1154 (internal quotation marks omitted); see also 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.” (quotation marks omitted)); Schlup v. Delo, 513 U.S. 298, 316 (1995) (“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.”).

In her petition, Wallman contended the victim was not credible, and she attached various statements from the victim, including excerpts from police statements and the grand jury hearing, to show the victim's alleged inconsistencies or fabrications. This evidence does not constitute new evidence of actual innocence. Cf. Chappell v. State, 137 Nev. 780, 802, 501 P.3d 935, 959 (2021) (rejecting a petitioner's claim of actual innocence where the petitioner “focuse[d] on perceived inconsistencies or insufficiencies in the evidence”). Likewise, documentation indicating crime scene analysts “were not able to swab the flooring [in a bathroom] for potential biological evidence” does not constitute new evidence of actual innocence. Cf. Brown, 130 Nev. at 576, 331 P.3d at 875 (recognizing a claim that there is insufficient evidence of guilt is a legal claim and does not constitute new evidence of innocence).²

To the extent Wallman attached letters from friends indicating that they had seen the victim at Wallman's home around the time the crimes were committed and that the victim did not appear to be in danger or present against her will, Wallman failed to demonstrate that it is more likely than not that no reasonable juror would have convicted her in light of all the evidence presented.³ Therefore, we conclude the district court did not err by denying the petition as procedurally barred. Accordingly,⁴ we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   See Wallman v. Neven, No. 80434, 2020 WL 5652409 (Nev. Sep. 18, 2020) (Order of Affirmance).

2.   In addition, Wallman's legal claims that trial-level counsel provided ineffective assistance do not implicate her actual innocence. See id.

3.   We note that the victim testified to the facts of the crimes at the grand jury hearing and that the victim's testimony was corroborated in several respects, including by one of the aforementioned letters, which acknowledged Wallman physically assaulted the victim. See Alfaro v. State, 139 Nev. 216, 220, 534 P.3d 138, 145 (2023) (recognizing “the testimony of a sexual assault victim alone [can be] sufficient to uphold a conviction” (quotation marks omitted)).

4.   Having concluded that the district court did not err by denying Wallman's petition as procedurally barred, we further conclude that the district court did not err by denying Wallman's motion to appoint counsel. See NRS 34.750(1). To the extent Wallman raises arguments not specifically addressed in this order, we have considered the same and conclude that they do not present a basis for relief or need not be reached given our disposition.