KEEFE v. STATE (2021)

ORDER OF AFFIRMANCE

O'Keefe appeared to base his claim of factual innocence upon assertions that the State improperly filed an amended information and his retrial should have been barred under the Double Jeopardy Clause. An offender may seek to have his felony conviction vacated and his records sealed through a petition to establish factual innocence filed pursuant to NRS 34.900 through NRS 34.990. See NRS 34.970(7). “Factual innocence” means the person did not engage in the conduct for which he was convicted, engage in conduct constituting a lesser included or inchoate offense of the crime for which he was convicted, commit any other crimes reasonably arising from the facts alleged in the charging document upon which he was convicted, and commit the conduct alleged in the charging document under any theory of criminal liability. NRS 34.920.

O'Keefe’s contentions concerning an amended information or his double jeopardy rights were insufficient to demonstrate he did not engage in the conduct for which he was convicted or commit any other crime arising out of or reasonably connected to the facts supporting the charging document upon which he was convicted. Because O'Keefe’s allegations concerning the amended information and his double jeopardy rights were insufficient to demonstrate that he was factually innocent, he was not entitled to relief. Therefore, we conclude that the district court did not err by dismissing the petition, and we

ORDER the judgment of the district court AFFIRMED.¹

FOOTNOTES

1.   The district court dismissed the petition because it found that O'Keefe was previously declared a vexatious litigant and he should not have been permitted to file the petition. However, the order declaring O'Keefe a vexatious litigant is not contained within the record before this court, and this court is unable to review the scope of any limitations placed upon O'Keefe’s ability to file documents in the district court. However, we affirm the district court's order because it properly concluded that O'Keefe was not entitled to relief. See Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970).