Lisle v. State , 2015 NV 39 ( 2015 )

131 Nev., Advance Opinion 31
IN THE SUPREME COURT OF THE STATE OF NEVADA
KEVIN JAMES LISLE,
Appellant,
vs.
",ILED
THE STATE OF NEVADA, JUN 2 5 2015
Respondent.
QE K. LINDEMAN
CLE F,SU;;.BBME.BCV R
BY
Appeal from a district court order dismissing a post-conViction
petition for a writ of habeas corpus in a death penalty case. Eighth
Judicial District Court, Clark County; Michael Villani, Judge.
Affirmed.
Rene L. Valladares, Federal Public Defender, and Michael Pescetta, David
Anthony, and Albert Sieber, Assistant Federal Public Defenders, Las
Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Steven S. Owens, Chief Deputy District Attorney,
Clark County,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, PARRAGUIRRE, J.:
A jury found appellant Kevin James Lisle guilty of first-degree
murder with the use of a deadly weapon in the drive-by shooting of Kip
Logan and sentenced him to death. Under Nevada law, Lisle may
collaterally challenge his conviction and sentence in a post-conviction
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petition for a writ of habeas corpus. There are two procedural bars to
filing a petition that are relevant here: the petition must be filed within a
certain period of time unless the petitioner shows cause for his delay; and
the petitioner is limited to one petition absent a demonstration of good
cause and actual prejudice. Where a petitioner cannot demonstrate cause
and prejudice, we have recognized an exception to these bars against
untimely and successive petitions: the petitioner must show that the
failure to consider the petition on its merits would result in a fundamental
miscarriage of justice, meaning the imprisonment of a person who is
actually innocent of the offense for which he was convicted or the
execution of a person who is actually innocent of the death penalty.
Lisle filed a petition that was untimely and successive. The
district court dismissed the petition on the ground that it was procedurally
barred. In this appeal from the district court's order, we must determine
whether a petitioner can demonstrate that he is actually innocent of the
death penalty by presenting new evidence of mitigating circumstances.
We hold that he cannot. In the context of a challenge to a death sentence,
the actual-innocence exception to the procedural bars is focused on the
elements of first-degree murder and the aggravating circumstances, not
mitigating circumstances, because it is the former that determine death
eligibility. Because we conclude that Lisle's claims do not warrant relief,
we affirm the district court's order dismissing his petition.
FACTS AND PROCEDURAL HISTORY
The facts underlying Lisle's conviction are set forth in detail in
this court's 1997 opinion affirming Lisle's conviction and sentence. Lisle v.
State, 113 Nev. 540, 937 P.2d 473 (1997), decision clarified on denial of
reh'g, 114 Nev. 221, 954 P.2d 744 (1998). In this opinion, we recount only
those facts necessary to an understanding of the issues presented.
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On the evening of October 22, 1994, John Melcher was driving
on a Las Vegas freeway and pulled his van alongside a Mustang driven by
Kip Logan. Lisle, the front passenger in Melcher's van, shot and killed
Logan. Adam Evans' was in the van's back seat, and he and Melcher
testified against Lisle at trial. The jury found Lisle guilty of first-degree
murder with the use of a deadly weapon, found a single aggravating
circumstance (the murder was committed by a person who knowingly
created a great risk of death to more than one person), found "other
mitigating circumstances," and concluded that the mitigating
circumstances did not outweigh the aggravating circumstance. The jury
sentenced Lisle to death. This court affirmed the judgment and sentence,
and the remittitur issued on November 16, 1998.
Lisle then filed a timely post-conviction petition for a writ of
habeas corpus, and the district court appointed counsel to supplement and
litigate the petition. The district court denied the petition, and this court
affirmed the district court's order. Lisle v. State, Docket No. 36949 (Order
of Affirmance, August 21, 2002). The remittitur from that appeal issued
on September 17, 2002. Lisle filed his second post-conviction habeas
petition on August 25, 2008, claiming that he received ineffective
assistance of trial, appellate, and post-conviction counsel. The district
court dismissed the petition as procedurally barred, and this appeal
followed.
DISCUSSION
Lisle's petition was procedurally barred. The petition was
untimely because it was filed nearly 10 years after the remittitur issued
'The 1997 opinion refers to him as Anthony Evans
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from the appeal of his judgment of conviction. See NRS 34.726(1). The
petition was also successive where it raised claims that could have been
brought in earlier proceedings, and an abuse of the writ where it raised
claims new and different from those in his first post-conviction habeas
petition. See NRS 34.810(1)(b)(2); NRS 34.810(2). To excuse the
procedural bars so that his petition would be considered on the merits,
Lisle raised several claims alleging good cause and prejudice. See NRS
34.726(1); NRS 34.810(1)(b), (3); see also State v. Huebler, 128 Nev., Adv.
Op. 19, 275 P.3d 91, 94-95 (2012) (explaining that "good cause for delay"
under NRS 34.726(1) requires that the delay is not the petitioner's fault
and that the petitioner will be unduly prejudiced), cert. denied, 568 U.S.
, 133 S. Ct. 988 (2013). He also argued that, in the absence of good
cause, he was actually innocent of the crime and of the death penalty such
that the failure to consider the merits of his petition would result in a
fundamental miscarriage of justice. See Pellegrini v. State, 117 Nev. 860,
887, 34 P.3d 519, 537 (2001). Because we conclude that Lisle failed to
demonstrate either good cause to excuse the procedural bars or that he
was actually innocent, we do not reach the merits of his claims challenging
his conviction and sentence.
Lisle failed to demonstrate good cause and prejudice
Lisle argues that the district court erred in dismissing his
petition as procedurally barred because he established good cause and
prejudice by showing that the State withheld impeachment evidence
regarding witnesses Melcher, Evans, and Larry Prince in violation of
Brady v. Maryland, 373 U.S. 83 (1963). We have acknowledged that a
Brady violation may provide good cause and prejudice to excuse the
procedural bars to a post-conviction habeas petition. See Mazzan v.
Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000). A successful Brady claim
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has three components: "the evidence at issue is favorable to the accused;
the evidence was withheld by the state, either intentionally or
inadvertently; and prejudice ensued, i.e., the evidence was material." Id.
The second and third components of a Brady violation parallel the good
cause and prejudice showings required to excuse the procedural bars to an
untimely and/or successive post-conviction habeas petition. State v.
Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003). "[Tin other words, proving
that the State withheld the evidence generally establishes cause, and
proving that the withheld evidence was material establishes prejudice."
Id. But, "a Brady claim still must be raised within a reasonable time after
the withheld evidence was disclosed to or discovered by the defense."
Huebler, 128 Nev., Adv. Op. 19, 275 P.3d at 95 n.3; see also Hathaway v.
State, 119 Nev. 248, 254-55, 71 P.3d 503, 507-08 (2003) (holding that good
cause to excuse an untimely appeal-deprivation claim must be filed within
a reasonable time of learning that the appeal had not been filed).
Lisle has the burden of demonstrating the elements of the
Brady claim as well as its timeliness. Bennett, 119 Nev. at 599, 81 P.3d at
8; Mazzan, 116 Nev. at 67, 993 P.2d at 37. He did not meet these burdens.
He failed to demonstrate that his Brady claims were raised within a
reasonable amount of time after discovery of the withheld evidence. Lisle
admitted that he received some of the evidence regarding Melcher in 1995,
13 years before he filed the instant petition. 2 Although Lisle alleged that
2 0neweek after trial, Lisle learned of Melcher's second interview
with police, and on direct appeal, he challenged the State's failure to
disclose the contents of that interview. This court concluded that the
evidence had "little or no impeachment value" and was not material under
Brady. Lisle, 113 Nev. at 548, 937 P.2d at 478. Lisle's claims are
continued on next page . . .
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he was forced to seek discovery in federal court to obtain records from the
Clark County District Attorney's Office and the Las Vegas Metropolitan
Police Department, that such efforts began shortly after December 2003
and continued until May 2007, and that as a result, no less than four
orders were issued in his favor, he did not specify when he received the
remaining evidence regarding Melcher, Evans, or Prince or that he
received it as a result of the federal discovery litigation. Accordingly, Lisle
did not specify facts that demonstrated that he raised the Brady claim
within a reasonable time after discovering the withheld evidence.
Lisle's other good-cause claims were similarly unavailing.
Like the Brady claim, Lisle's good-cause claim based on the alleged
ineffective assistance of first post-conviction counsel, see Crump v.
Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997); McKague v. Warden,
112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996), was untimely because
it was not asserted within a reasonable time after it became available: the
petition was filed nearly six years after the remittitur issued in the appeal
from the denial of his first post-conviction habeas petition, see Hathaway,
119 Nev. at 252-53, 71 P.3d at 506; Pellegrini, 117 Nev. at 869-70, 34 P.3d
at 526 (holding that the time bar at MRS 34.726 applies to successive
petitions); see also State v. Eighth Judicial Dist. Court (Riker), 121 Nev.
• . . continued
therefore barred by the doctrine of the law of the case. See Hall v. State,
91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). We decline Lisle's
invitation to reconsider our previous conclusion because he failed to
demonstrate that this court's prior decision was clearly erroneous or that
any new or different evidence was substantial. See Tien Fu Hsu v. County
of Clark, 123 Nev. 625, 630-31, 173 P.3d 724, 728-29 (2007).
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225, 232, 112 P.3d 1070, 1075 (2005) (holding that a petitioner "must
plead and prove specific facts that demonstrate good cause" to excuse an
abusive petition). Lisle's remaining good-cause claims—that Polk v.
Sandoval, 503 F.3d 903 (9th Cir. 2007), excused any procedural bars to his
claim challenging the premeditation jury instruction; that counsel, not
Lisle, caused any delays; and that this court's alleged inconsistent
application of the procedural bars and Lisle's health problems excused all
of the procedural bars—also lacked merit. See Nika v. State, 124 Nev.
1272, 1286-87, 1289, 198 P.3d 839, 849-50, 851 (2008) (disagreeing with
Polk and holding that the premeditation instruction set forth in Byford v.
State, 116 Nev. 215, 236-37, 994 P.2d 700, 714-15 (2000), did not apply to
cases that were final when Byford was decided); Hathaway, 119 Nev. at
252, 71 P.3d at 506 (holding that a petitioner must show an impediment
external to the defense to overcome procedural bars); cf. Phelps v. Dir.,
Nev. Dep't of Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988)
(holding that mental deficiency and lack of legal knowledge do not
constitute good cause), superseded by statute on other grounds as stated in
State v. Haberstroh, 119 Nev. 173, 180-81, 69 P.3d 676, 681 (2003); Riker,
121 Nev. at 236, 112 P.3d at 1077 (holding that this court does not
arbitrarily "ignore[ ] procedural default rules" and that "any prior
inconsistent application of statutory default rules would not provide a
basis for this court to ignore the rules, which are mandatory").
Lisle failed to demonstrate actual innocence
Where a petition is procedurally barred and the petitioner
cannot demonstrate good cause, the district court may nevertheless reach
the merits of any constitutional claims if the petitioner demonstrates that
failure to consider those constitutional claims would result in a
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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. This generally requires the petitioner to present new
evidence of his innocence. House v. Bell, 547 U.S. 518, 536-37 (2006);
Schlup v. Delo, 513 U.S. 298, 316 (1995).
Lisle did not demonstrate actual innocence of the crime
Lisle argues that he was actually innocent of the murder and
presented new evidence in the form of affidavits from his family members
to show that he did not have facial hair at the time of the murders. Lisle's
defense at trial was mistaken identity and that Melcher was the actual
shooter, and his theory in the instant petition is that the presence of facial
hair was the key factor at trial in determining the shooter's identity.
Although there was conflicting testimony regarding who had how much
facial hair, the key evidence at trial was not facial hair but rather the
testimony of Moldier and Evans, who both admitted to being present at
the crime and identified Lisle as the shooter. Accordingly, Lisle failed to
demonstrate that, in light of his family's affidavits, no reasonable juror
would have found him guilty of first-degree murder. See Schlup, 513 U.S.
at 327 ("[T]he petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the new
evidence."); Pellegrini, 117 Nev. at 887, 34 P.3d at 537 (citing Schlup, 513
U.S. at 327).
Lisle did not demonstrate actual innocence of the death penalty
Lisle argues that he is actually innocent of the death penalty
on two grounds: First, he argues that there was insufficient evidence of
the single aggravating circumstance found by the jury. Second, he argues
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that had the jury been presented with the new evidence of mitigating
circumstances that he provided to the post-conviction court, no rational
juror would have found him eligible for the death penalty.
The first ground underlying Lisle's actual-innocence claim,
based on a challenge to the aggravating circumstance, lacks merit. Lisle
points to no new evidence supporting his claim of actual innocence with
respect to the aggravating circumstance. See House, 547 U.S. at 536-37;
Schlup, 513 U.S. at 316. Nor do his arguments present any issue of first
impression as to the legal validity of the aggravating circumstance. Cf.
Leslie v. Warden, 118 Nev. 773, 779-82, 59 P.3d 440, 445-46 (2002)
(applying actual-innocence exception based on legal validity of an
aggravating circumstance); Bennett, 119 Nev. at 597-98, 81 P.3d at 6-7
(applying actual-innocence exception based in part on legal validity of an
aggravating circumstance). Accordingly, Lisle has not demonstrated
actual innocence based on his challenge to the aggravating circumstance,
and we conclude that the district court did not err in declining on this
basis to reach Lisle's procedurally barred claims.
The second ground underlying Lisle's actual-innocence claim
presents an issue of first impression for this court: can a claim of actual
innocence of the death penalty offered as a gateway to reach a
procedurally defaulted claim be based on a showing of new evidence of
mitigating circumstances? Although we have not answered that question, 3
3 0noccasion we have assumed, without deciding, that new
mitigating evidence could be offered to establish actual innocence of the
death penalty as a gateway to consideration of a procedurally defaulted
claim. See, e.g., Wilson v. State, 127 Nev., Adv. Op. 68, 267 P.3d 58, 61 n.2
(2011).
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the United States Supreme Court addressed it in Sawyer v. Whitley, 505
U.S. 333 (1992), in the context of a successive federal habeas petition
challenging a Louisiana death sentence.
The Sawyer Court rejected the idea that the actual-innocence
exception to procedural default should extend to the existence of new
mitigating evidence. 505 U.S. at 345. The Court's conclusion was based
primarily on two observations. First, extending actual innocence to
include new mitigating evidence would reduce the exception "to little more
than what is already required to show 'prejudice,' a necessary showing for
habeas relief for many constitutional errors," such as ineffective assistance
of counsel. Id. (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).
The Court reasoned that a petitioner should have to "show something
more. . . than he would have had to show to obtain relief on his first
habeas petition" to get "a court to reach the merits of his claims on a
successive habeas petition." Id. Second, the subjective nature and
breadth of mitigating circumstances "would so broaden the [actual
innocence] inquiry as to make it anything but a 'narrow' exception to the
principle of finality." Id. We agree that these observations counsel
against opening the actual-innocence gateway to include new mitigating
evidence, for otherwise the exception would swallow the procedural
defaults adopted by the Legislature.
Lisle, however, argues that applying language in Sawyer to
Nevada's death penalty scheme leads to the conclusion that, in Nevada, a
petitioner should be allowed to demonstrate actual innocence of the death
penalty by showing the existence of new mitigating evidence. In
particular, Lisle focuses on the Sawyer Court's conclusion that "[s]ensible
meaning is given to the term 'innocent of the death penalty' by allowing a
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showing in addition to innocence of the capital crime itself a showing that
there was no aggravating circumstance or that some other condition of
eligibility had not been met." Id. (emphasis added). Lisle suggests that
there is another "condition of eligibility" in Nevada, the weighing
determination—whether mitigating circumstances are not sufficient to
outweigh the aggravating circumstance(s). As support, Lisle points to a
statement by this court that under Nevada law a defendant is "death-
eligible" only if, in addition to at least one aggravating circumstance, the
sentencing body "finds that there are no mitigating circumstances
sufficient to outweigh the aggravating circumstance or circumstances
found.'" Johnson v. State, 118 Nev. 787, 802, 59 P.3d 450, 460 (2002)
(quoting NRS 175.554(3)), overruled on other grounds by Nunnery v. State,
127 Nev., Adv. Op. 69, 263 P.3d 235, 250-51 (2011). 4 Based on Lisle's
analysis, new mitigation evidence could provide the basis for a claim that
a petitioner is actually innocent of the death penalty.
4See also Servin v. State, 117 Nev. 775, 786, 32 P.3d 1277, 1285
(2001) (stating that to determine whether a defendant is death-penalty
eligible, "(1) the jury must unanimously find, beyond a reasonable doubt,
at least one enumerated aggravating circumstance; and (2) each juror
must then individually determine that mitigating circumstances, if any
exist, do not outweigh the aggravating circumstances. At this point, a
defendant is death-eligible. . . ."); Hollaway v. State, 116 Nev. 732, 745, 6
P.3d 987, 996 (2000) (discussing the two necessary findings for a
defendant to be eligible for death under Nevada's capital sentencing
scheme: "the jury must find unanimously and beyond a reasonable doubt
that at least one enumerated aggravating circumstance exists, and each
juror must individually consider the mitigating evidence and determine
that any mitigating circumstances do not outweigh the aggravating").
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A careful review of Sawyer leads us to reject Lisle's analysis.
Although this court has characterized the weighing determination as one
of two findings required to make a defendant "death-eligible" in Nevada,
the Sawyer Court used the word "eligibility" to refer to a more limited
aspect of the process for imposing a death sentence. The Supreme Court
has required that the capital sentencing process "narrow the class of
murderers subject to capital punishment. . . by providing specific and
detailed guidance to the sentencer" and allow for "consideration of the
character and record of the individual offender and the circumstances of
the particular offense." McCleskey v. Kemp, 481 U.S. 279, 303 (1987)
(internal quotations omitted); see also Arave v. Creech, 507 U.S. 463, 471
(1993) (reiterating that a state's narrowing process "must 'channel the
sentencer's discretion by clear and objective standards that provide
specific and detailed guidance, and that make rationally reviewable the
process for imposing a sentence of death' (quoting Lewis v. Jeffers, 497
U.S. 764, 774 (1990))). The Court has referred to the narrowing
component of the capital sentencing process as the "eligibility" phase and
the individualized-consideration component as the "selection" phase. See,
e.g., Buchanan v. Angelone, 522 U.S. 269, 275 (1998) ("In the eligibility
phase, the jury narrows the class of defendants eligible for the death
penalty, often through consideration of aggravating circumstances. In the
selection phase, the jury determines whether to impose a death sentence
on an eligible defendant." (citation omitted)).
The Court's analysis in Sawyer comports with this
understanding of the "eligibility" and "selection" phases of the capital
sentencing process. After discussing the narrowing requirement and
explaining that it was met under the Louisiana statute by the elements of
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the capital offense and the finding of at least one statutory aggravating
factor, Sawyer, 505 U.S. at 341-42, the Sawyer Court characterized that
process as establishing "eligibility for the death penalty," id. at 342. The
Court then explained that once the elements of the offense and at least
one statutory aggravating factor had been found, the "emphasis shifts
from narrowing the class of eligible defendants by objective factors to
individualized consideration of a particular defendant." Id. at 343. At
that point, "[c]onsideration of aggravating factors together with mitigating
factors, in various combinations and methods dependent upon state law,
results in the jury's or judge's ultimate decision as to what penalty shall
be imposed." Id. The Court's explanation of the two-part sentencing
process demonstrates that "eligibility" is used in Sawyer as a descriptor for
the aspect of the capital sentencing process in which the class of
defendants who may be subject to the death penalty is narrowed.
In contrast, this court used the term "eligibility" in the case
cited by Lisle to refer to both aspects of the capital sentencing process—
narrowing and individualized consideration. Our use of "eligibility" in this
fashion does not reflect an expansion of the narrowing aspect of the capital
sentencing process in Nevada to include individualized consideration. To
the contrary, we have focused on the same factors as the Supreme Court
in evaluating whether Nevada has sufficiently narrowed the class of
defendants who may be sentenced to death—the elements of the offense
and the statutory aggravating circumstances. See, e.g., Hernandez v.
State, 124 Nev. 978, 983-84, 194 P.3d 1235, 1239 (2008) (discussing
narrowing based on definition of murder by torture), overruled on other
grounds by Armenta-Carpio v. State, 129 Nev., Adv. Op. 54, 306 P.3d 395,
396 (2013); McConnell v. State, 120 Nev. 1043, 1065-67, 102 P.3d 606,
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621-23 (2004) (discussing narrowing based on elements of first-degree
felony murder and aggravating circumstance based on a murder
committed in the course of certain felonies). Our use of "eligibility" to
refer to both aspects of the capital sentencing process stems from a
relatively unique aspect of Nevada law that precludes the jury from
imposing a death sentence if it determines that the mitigating
circumstances are sufficient to outweigh the aggravating circumstance or
circumstances. NRS 175.554(3); NRS 200.030(4). Although this statutory
requirement limits the jury's discretion to sentence a person to death, it is
not part of the narrowing aspect of the capital sentencing process. 5
Rather, its requirement to weigh aggravating and mitigating
circumstances renders it, by definition, part of the individualized
consideration that is the hallmark of what the Supreme Court has
referred to as the selection phase of the capital sentencing process—the
"[c]onsideration of aggravating factors together with mitigating factors" to
determine "what penalty shall be imposed," Sawyer, 505 U.S. at 343• 6
5Addressing the use of "other matter" evidence at a capital penalty
hearing, this court has stated that "use of [other matter] evidence would
undermine the constitutional narrowing process which the enumeration
and weighing of specific aggravators [against mitigating evidence} is
designed to implement." Hollaway v. State, 116 Nev. 732, 746, 6 P.3d 987,
997 (2000). Neither Hollaway nor cases citing to it analyzed whether the
weighing determination was a necessary part of the "constitutional
narrowing process." See, e.g., Butler v. State, 120 Nev. 879, 895, 102 P.3d
71, 82 (2004); Evans v. State, 117 Nev. 609, 637, 28 P.3d 498, 517 (2001).
To the extent that Hollaway and its progeny could be read to hold such,
they are overruled.
The way that Nevada law uses the weighing of mitigating and
6
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The very nature of the weighing determination further
supports our conclusion that the weighing determination is not what the
Sawyer Court had in mind when it referred to a "condition of eligibility"
other than aggravating circumstances that may be relevant to the actual-
innocence gateway. In particular, the mitigating circumstances are not
statutorily limited to an obvious class of relevant evidence, and the
weighing determination itself is a moral determination, not an objective
determination of facts.
First, as the Sawyer Court recognized, mitigating evidence is
categorically different in its nature and breadth than the elements of the
capital crime and statutory aggravating circumstances that the Court
determined could be the basis for showing innocence of the death penalty.
For example, the Sawyer Court observed that "Es] ensible meaning is given
to the term 'innocent of the death penalty' by allowing a showing in
addition to innocence of the capital crime itself[,] a showing that there was
no aggravating circumstance or that some other condition of eligibility had
not been met," because proof or disproof of the elements of the crime and
the statutory aggravating circumstances are "confined by the statutory
definitions to a relatively obvious class of relevant evidence." 505 U.S. at
345. In contrast, mitigating evidence cannot be confined by statute to a
relatively obvious class of relevant evidence, see Buchanan, 522 U.S. at
• . . continued
person to death is not mandated by Supreme Court precedent. The
Supreme Court does not require the states to "affirmatively structure in a
particular way the manner in which juries consider mitigating evidence"
and has suggested "that complete jury discretion is constitutionally
permissible." Buchanan, 522 U.S. at 276.
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276 (observing "that the sentencer may not be precluded from
considering. . . any constitutionally relevant mitigating evidence"); NRS
200.035 (listing statutory mitigating circumstances and "[a]ny other
mitigating circumstance"); rather, it includes "any aspect of a defendant's
character or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death," Lockett v.
Ohio, 438 U.S. 586, 604 (1978); see also McCleskey, 481 U.S. at 304
(indicating that "compassionate or mitigating factors stem[ ] from the
diverse frailties of humankind" (quoting Woodson v. North Carolina, 428
U.S. 280, 304 (1976) (plurality opinion))). And mitigation evidence can be
a double-edged sword that may indicate diminished culpability but at the
same time may indicate an increased risk of future dangerousness that
merits the death penalty. See Brewer v. Quarterman, 550 U.S 286, 292-93
(2007).
Second, the Sawyer Court focused on the importance of
objective standards in applying the actual-innocence inquiry in the context
of the death penalty. As the Court explained, "[Ole phrase 'innocent of
death' is not a natural usage of those words." Sawyer, 505 U.S. at 341; see
also Smith v. Murray, 477 U.S. 527, 537 (1986) (acknowledging that actual
innocence "does not translate easily into the context of an alleged error at
the sentencing phase of a trial on a capital offense"). Therefore, "to
construct an analog to the simpler situation represented by the case of a
noncapital defendant" and make the very narrow exception for actual
innocence "workable1,1 it must be subject to determination by relatively
objective standards." Sawyer, 505 U.S. at 341. The elements of a capital
offense and the aggravating circumstances are "objective factors or
conditions." See id. at 347. They therefore provide a workable standard
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for applying the actual-innocence gateway in the context of a death
sentence. Id. In contrast, the weighing of mitigating and aggravating
circumstances does not allow for objective standards because it is a moral
determination and, as such, it 'cannot be reduced to a scientific formula
or the discovery of a discrete, observable datum." Nunnery v. State, 127
Nev., Adv. Op. 69, 263 P.3d 235, 252 (2011) (quoting Ex parte Waldrop,
859 So. 2d 1181, 1189 (Ala. 2002)). Opening the actual-innocence gateway
to include new mitigating evidence thus does not present a workable
analog.
Although we are not bound by the United States Supreme
Court's decisions in interpreting state law, see Bradshaw v. Richey, 546
U.S. 74, 76 (2005) (reiterating the converse, that "a state court's
interpretation of state law. . . binds a federal court sitting in habeas
corpus"), we find persuasive the Supreme Court's reasoning with its focus
on the objective factors that narrow the class of offenders subject to the
death penalty because that focus ensures rational reviewability and
restrains the actual-innocence inquiry as a narrow gateway through which
a petitioner may obtain review of claims that otherwise would be
procedurally defaulted. We therefore conclude that an actual-innocence
inquiry in Nevada must focus on the objective factors that make a
defendant eligible for the death penalty, that is, the objective factors that
narrow the class of defendants for whom death may be imposed. To hold
otherwise would allow the exception to swallow the procedural bars.
Accordingly, the district court did not err in rejecting Lisle's effort to
circumvent the procedural bars to his petition by asserting a claim that he
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was actually innocent of the death penalty based on new mitigation
evidence.
CONCLUSION
Lisle failed to demonstrate good cause to excuse his
procedurally barred post-conviction petition for a writ of habeas corpus.
Lisle also failed to demonstrate that he was actually innocent of either the
crime or the death penalty. We therefore affirm the district court's order
dismissing hisS post-conviction petition for a writ of habeas corpus.
We concur:
, C.J.
Hardesty
4
J.
Gibbons
J.
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CHERRY and SAITTA, JJ., dissenting:
In our view, the district court erred in denying the petition as
procedurally barred without conducting an evidentiary hearing to
determine the credibility of Lisle's new evidence of actual innocence. If it
found that new evidence to be credible, it is more likely than not that no
reasonable juror would have convicted Lisle or sentenced him to death in
light of the new evidence, and he would therefore have overcome the
procedural bars to having his underlying constitutional claims heard on
the merits. See Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537
(2001) (stating the standard for demonstrating actual innocence).
Lisle presented new evidence that he was actually innocent of
first-degree murder. Only four people besides the victim were present for
the murder: Lisle; John Melcher and Adam Evans, who were in the vehicle
with Lisle; and Jose Gonzales, the passenger in the victim's car. Lisle's
primary defense at trial that Melcher was the shooter was supported by
circumstantial evidence as well as by Gonzales's identification of Melcher
as the shooter. Gonzales's statement also indicated that the shooter had
scraggly facial hair, and the State sought to impeach his identification of
Melcher as the shooter by eliciting extensive—although not uniform—
testimony that Melcher did not have facial hair but that Lisle did.
Perfunctorily acknowledging the conflicting testimony about
facial hair, the majority dismisses its importance because it considers the
testimony of Evans and Melcher to be the "key" evidence in the case.
However, by failing to acknowledge Evans' and Melcher's motives to
fabricate their testimony, the majority did not consider the new evidence
in light of all of the evidence. See Schlup v. Delo, 513 U.S. 298, 328 (1995)
("The habeas court must make its determination concerning the
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petitioner's innocence in light of all the evidence." (quotation marks
omitted)). Melcher and Evans had both been arrested in connection with
the murder but struck deals with the State in exchange for testifying.
Had the jury heard credible new evidence that Lisle, unlike the shooter,
did not have facial hair, they more likely than not would have acquitted
him.
Even if the new evidence of Lisle's innocence of the murder
was not credible, he also presented new evidence of mitigating
circumstances to demonstrate that he was actually innocent of the death
penalty. Relying on Sawyer v. Whitley, 505 U.S. 333 (1992), the majority
concludes that new evidence regarding aggravating circumstances can
demonstrate actual innocence of the death penalty but that new evidence
of mitigating circumstances cannot. We disagree.
The Sawyer Court affirmed the idea suggested in earlier cases
that a defendant could be "actually innocent" of the death penalty but
limited the inquiry to "those elements that render a defendant eligible for
the death penalty." Sawyer, 505 U.S. at 343, 347. Eligibility for the death
penalty in Nevada is set out in NRS 175.554(3), which states, "The jury
may impose a sentence of death only if it finds at least one aggravating
circumstance and further finds that there are no mitigating circumstances
sufficient to outweigh the aggravating circumstance or circumstances
found." The plain meaning of a statute controls its interpretation. State v.
Lucero, 127 Nev. 92, 95, 249 P.3d 1226, 1228 (2011). Here, the plain
language of NRS 175.554(3) is that a defendant is eligible for the death
penalty only if two elements are met: the jury finds at least one
aggravating circumstance and the jury finds no mitigating circumstances
outweigh the aggravating circumstance(s). Only after the jury has found
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the defendant death-eligible does it decide whether death should be
imposed. See NRS 175.554(2)(c) This court has for decades unequivocally
and consistently followed this straightforward interpretation of Nevada's
death penalty scheme. See, e.g., Servin v. State, 117 Nev. 775, 786, 32
P.3d 1277, 1285 (2001) ("In order to determine that a defendant is eligible
for the death penalty, (1) the jury must unanimously find, beyond a
reasonable doubt, at least one enumerated aggravating circumstance; and
(2) each juror must then individually determine that mitigating
circumstances, if any exist, do not outweigh the aggravating
circumstances."); accord Butler v. State, 120 Nev. 879, 895, 102 P.3d 71, 82
(2004); Johnson v. State, 118 Nev. 787, 802, 59 P.3d 450, 460 (2002),
overruled on other grounds by Nunnery v. State, 127 Nev., Adv. Op. 69, 263
P.3d 235, 250-51 (2011); Evans v. State, 117 Nev. 609, 634, 28 P.3d 498,
515 (2001); Holloway v. State, 116 Nev. 732, 745, 6 P.3d 987, 996 (2000);
Middleton v. State, 114 Nev. 1089, 1116-17, 968 P.2d 296, 314-15 (1998);
Geary v. State, 110 Nev. 261, 267, 871 P.2d 927, 931 (1994); Gallego v.
State, 101 Nev. 782, 790, 711 P.2d 856, 862 (1985).
Where the meaning of a statute is plain on its face, we do not
look beyond that meaning. Lucero, 127 Nev. at 95, 249 P.3d at 1228. Yet
the majority opinion does just that. Rather than rely on the plain
meaning of Nevada statutes, the majority jumps to policy concerns the
Sawyer Court expressed, then engages in semantic gymnastics in order to
conclude that Nevada's death penalty scheme is something other than
what the statutes plainly make it. The Sawyer Court and the majority
appear to be concerned with making the actual-innocence inquiry
"workable" But if to make the death penalty and its attendant post-
conviction proceedings "workable" means that we ignore new evidence that
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demonstrates that a defendant should not have been sentenced to death,
then perhaps the death penalty itself is not workable.
In the instant case, Lisle produced detailed reports from two
mental health experts who made extensive findings regarding the
existence and impact of years of childhood abuse and neglect that Lisle
suffered at the hands of his mother, her boyfriends, and his older brother;
injury to his brain; and a list of untreated but often well-documented
mental health issues. This new evidence went far beyond the tepid
mitigation evidence offered at trial that consisted of lay witnesses
describing Lisle's basically good demeanor as a child and how much he
meant to them, that his mother was unkind, and that he suffered isolated
incidents of abuse from his older brother and his mother's boyfriends.
This new evidence of mitigating circumstances also would have rebutted
the State's evidence depicting Lisle as a criminal from age 11, instead
recasting many of the specific instances elicited by the State at the
sentencing hearing as misguided juvenile attempts to meet his own basic
needs (including food and shelter) and explaining the remaining events as
products of his childhood abuse and/or untreated mental and neurological
disorders. This new mitigation information is, if credible, clear and
convincing evidence that Lisle was not death-eligible. See Pellegrini, 117
Nev. at 887, 34 P.3d at 537 (stating the standard for a claim of actual
innocence of the death penalty).
Lisle presented new evidence demonstrating his actual
innocence of both the murder and the death penalty. Had that evidence
been presented to the jury, it is more likely than not that no reasonable
juror would have convicted him or sentenced him to death. We would
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therefore remand this matter to the district court to conduct an
evidentiary hearing to determine the credibility of Lisle's new evidence.
J.
Cherry
J.
Saitta
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