Wilson (Edward) v. State (Death Penalty-Pc) ( 2014 )

 NRS 34.726(1). To the extent that the petition raised the same claims
that were raised in prior petitions, the petition was successive. NRS
34.810(2). The petition was therefore procedurally barred absent a
demonstration of good cause and prejudice. NRS 34.726(1); NRS
34.810(1)(b), (3).
As cause to overcome the procedural default rules, Wilson
contends that: (1) his guilty plea was invalid as it was premised on an
understanding of first-degree murder that was held invalid by Byford v.
State, 116 Nev. 215, 994 P.2d 700 (2000); (2) his prior counsel were
ineffective; and (3) the inconsistent and discretionary application of
procedural bars prohibits the use of procedural bars to deny him relief.
Validity of guilty plea
Wilson argues that his guilty plea was invalid because it was
premised on an understanding of the elements of first-degree murder as
described by the Kazalyn instruction,' which this court held was erroneous
under Byford, 116 Nev. 215, 994 P.2d 700. He asserts that the Ninth
Circuit Court of Appeals' decision in Polk u. Sandoval, 503 F.3d 903 (9th
Cir. 2007), provided a basis for this court to revisit this claim.
In Byford, we disapproved of the Kazalyn instruction
regarding the mens rea required for a first-degree murder conviction
based on willful, deliberate, and premeditated murder, and provided the
district courts with instructions to use in the future. Byford, 116 Nev. at
233-37, 994 P.2d at 712-15. In Nika v. State, 124 Nev. 1272, 1301, 198
P.3d 839, 859 (2008), we concluded that Byford does not apply to cases
that were final when it was decided. Wilson's conviction was final roughly
17 years before Byford was decided and therefore Byford does not apply.
i-Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992), prospectively
modified by Byford, 116 Nev. at 236-37, 994 P.2d at 714.
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Wilson acknowledges Nika but argues that the decision
ignores the constitutional vagueness concerns attendant to the Kazalyn
instruction and fails to determine whether Byford should apply
retroactively as a substantive rule of criminal law. He asserts that this
court should overrule Nika and adopt the Ninth Circuit's analysis in Polk.
Neither argument warrants relief Until Byford, this court consistently
upheld the Kazalyn instruction and rejected constitutional challenges
similar to this one. Byford did not alter the law in effect when Wilson's
conviction became final; rather, it changed the law prospectively. And
because that change concerned a matter of state law, the Byford decision
did not implicate federal constitutional concerns. Further, the Ninth
Circuit's recent decision in Babb v. Lozowsky, 719 F.3d 1019, 1029-30 (9th
Cir. 2013), cert. denied, U .S. , 134 S. Ct. 526 (2013), disapproved of
Polk, and noted its effective overruling by Nika. Accordingly, Wilson
cannot demonstrate that a continued adherence to the prior ruling would
work a manifest injustice in this case.
Ineffective assistance of prior counsel
Wilson contends that the district court erred in denying his
petition as procedurally barred because the ineffective assistance of prior
counsel provided him with good cause to excuse the procedural bars. He
asserts that his appellate and post-conviction counsel failed to challenge
the definition of premeditation. We disagree. Wilson failed to explain how
appellate and post-conviction counsels' alleged deficiencies precluded him
from filing his fourth petition until over 25 years after the resolution of his
direct appeal and over 9 years after the order affirming the district court's
denial of his first post-conviction petition. See Hathaway v. State, 119
Nev. 248, 252-53, 71 P.3d 503, 506 (2003) ("Irk constitute adequate cause,
the ineffective assistance of counsel claim itself must not be procedurally
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(concluding that procedurally defaulted claim of ineffective assistance of
counsel cannot serve as cause for another procedurally defaulted claim).
To the extent Wilson contends that any procedural default should be
excused due to second and third post-conviction counsel's ineffective
assistance, he was not entitled to the effective assistance of second and
third post-conviction counsel. See Crump v. Warden, 113 Nev. 293, 303,
934 P.2d 247, 253 (1997) (stating that "petitioner who has counsel
appointed by statutory mandate is entitled to the effective assistance of
that counsel"); NRS 34.820(1) (requiring appointment of counsel to
represent capital petitioner on first petition). Therefore, counsel's
ineffectiveness, if any, did not excuse the procedural default.
Inconsistent application of procedural bars
Wilson argues that the district court erred by relying upon
procedural-default rules because this court applies them inconsistently
and in its discretion. We have repeatedly rejected this argument, see, e.g.,
State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 236, 112 P.3d
1070, 1077 (2005); Pellegrini v. State, 117 Nev. 860, 886, 34 P.3d 519, 536
(2001), and reject it here as well.
Fundamental miscarriage of justice
When a petitioner cannot demonstrate good cause, the district
court may nevertheless excuse a procedural bar if the petitioner
demonstrates that failing to consider the petition would result in a
fundamental miscarriage of justice. Pellegrini, 117 Nev. at 887, 34 P.3d at
537. A fundamental miscarriage of justice requires "a colorable showing'
that the petitioner "is actually innocent of the crime or is ineligible for the
death penalty." Id. When claiming a fundamental miscarriage based on
ineligibility for the death penalty, the petitioner "must show by clear and
convincing evidence that, but for a constitutional error, no reasonable
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Wilson asserts that he is actually innocent of the death
penalty. He contends that the felony aggravating circumstances are
invalid under McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004), and
the pecuniary-gain aggravating circumstance is improperly based on the
same facts as one of the felony aggravating circumstances (robbery) in
violation of Lane v. State, 114 Nev. 299, 956 P.2d 88 (1998). He asserts
that there was a reasonable probability that he would not have been
sentenced to death absent these aggravating circumstances.
We conclude that Wilson is not entitled to relief for two
reasons. First, Wilson did not raise a claim of actual innocence related to
the penalty phase of trial in his petition below. Accordingly, we will not
address this argument on appeal. See Davis v. State, 107 Nev. 600, 606,
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817 P.2d 1169, 1173 (1991) (noting that this court need not consider
arguments raised on appeal that were not presented in the district court
in the first instance), overruled on other grounds by Means v. State, 120
Nev. 1001, 103 P.3d 25 (2004). Second, Wilson raised this argument in his
third post-conviction petition and this court concluded that it was without
merit. Wilson IV, 127 Nev. at n.3, 267 P.3d at 61-62, 63 n.3; see
Wickliffe v. Sunrise Hosp., Inc., 104 Nev. 777, 780, 766 P.2d 1322, 1324
(1988) ("When an appellate court states a principle or rule of law
necessary to a decision, the principle or rule becomes the law of the case
and must be followed throughout its subsequent progress, both in the
lower court and upon subsequent appeal."). While this court has the
discretion to "revisit the wisdom of its legal conclusions when it
determines that further discussion is warranted," Pellegrini, 117 Nev. at
885, 34 P.3d at 535-36, and may 'depart from [its] prior holdings only
where [it] determine[s] that they are so clearly erroneous that continued
adherence to them would work a manifest injustice,' Tien Fu Hsu v. Cnty.
SUPREME COURT of Clark, 123 Nev. 625, 631, 173 P.3d 724, 729 (2007) (quoting Clem v.
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State, 119 Nev. 615, 620, 81 P.3d 521, 525 (2003)), Wilson has not cited
any authority decided since the denial of his last petition that necessitates
a departure from our prior holding
Having considered Wilson's arguments and concluded that no
relief is warranted, we
ORDER the judgment of the district court AFFIRMED. 2
Gibbons
A—Lt J. et_,LA
Hardesty Parraguirre
ta-E
Douglas
(
, J.
Saitta
cc: Hon. Elliott A. Sattler, District Judge
Boies, Schiller & Flexner, LLP
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
2 The Honorable Kristina Pickering, Justice, voluntarily recused
herself from participation in this matter.
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