Leonard (William) v. Warden (Death Penalty-Pc) ( 2015 )

 was untimely under NRS 34.726(1). The petition was also successive and
therefore procedurally barred pursuant to NRS 34.810(1)(b)(2). To
overcome the statutory procedural bars, Leonard must demonstrate good
cause and prejudice. NRS 34.726(1); NRS 34.810(3). Although Leonard
provides little in the way of good cause to excuse the procedural bars, he
acknowledges that some claims raised here "bear a superficial
resemblance to issues raised in previous proceedings" and thus appears to
suggest that post-conviction counsel's ineffectiveness in investigating his
case justifies reconsideration of his claims. However, Leonard cannot base
a claim of good cause on the ineffective assistance of first post-conviction
counsel because his first petition was filed prior to the effective date of the
statute mandating the appointment of counsel for a first post-conviction
habeas petition in a death penalty case, see NRS 34.820(1); 1991 Nev.
Stat., ch. 44, §§ 32-33, at 92; Mazzan v. Warden, 112 Nev. 838, 841 n.1,
921 P.2d 920, 921 n.1 (1996), and therefore he did not have a right to the
effective assistance of post-conviction counsel, see Bejarano v. Warden, 112
Nev. 1466, 1470 n.1, 929 P.2d 922, 925 n.1 (1996); McKague v. Warden,
112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996). And he was not
entitled to the effective assistance of second post-conviction counsel.'
'Additionally, Leonard argues that this court must reconsider its
prior decision rejecting his conflict-of-interest claim against trial counsel,
see Leonard v. State, 108 Nev. 79, 81, 824 P.2d 287, 289 (1992), in light of
Coleman v. State, 109 Nev. 1, 846 P.2d 276 (1993). However, Coleman was
decided 18 years before Leonard filed the instant post-conviction petition
and he does not explain his delay in raising this claim and we reject his
contention that Coleman establishes an exception to the law-of-the-case
doctrine.
Leonard further asserts that his conviction and death sentence are
constitutionally invalid because he was not tried before a fair tribunal; his
SUPREME COURT
continued on next page . . .
OF
NEVADA
2
(0) 1947A cera
Consequently, the ineffective assistance of post-conviction counsel cannot
serve as good cause to overcome the procedural bars. 2 Pellegrini v. State,
117 Nev. 860, 887-88, 34 P.3d 519, 537-38 (2001); Bejarano, 112 Nev. at
1469, 929 P.2d at 925.
Leonard also argues that applying the procedural bars in his
case is impermissible as "it would insulate meritorious constitutional
claims of ineffective assistance of trial counsel from any substantive
review." This explanation does not establish good cause. Leonard had the
opportunity to assert such claims in a timely first post-conviction petition,
and there is nothing impermissible or unconstitutional about the
procedural bars themselves, see generally Pellegrini, 117 Nev. at 878, 34
P.3d at 531.
The State also pleaded laches pursuant to NRS 34.800. Under
that provision, a petition may be dismissed if the delay in filing the
petition prejudices the State. NRS 34.800(1). Because more than five
years passed between the judgment of conviction or the decision on direct
appeal and the filing of the petition, there was a rebuttable presumption of
prejudice to the State. NRS 34.800(2). Leonard cannot overcome the
. . . continued
claim extends to his first post-conviction proceedings. Absent from his
argument is any explanation for the delay in raising this claim; therefore,
he has not demonstrated good cause to overcome the procedural bars.
2 Tothe extent Leonard argues that the Supreme Court's decision in
Martinez v. Ryan, 566 U.S. , 132 S. Ct. 1309 (2012) serves as good
cause to overcome the procedural bars, we have held that Martinez does
not apply to Nevada's statutory post-conviction procedures. Brown v.
McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 871-72 (2014). Therefore,
Martinez does not provide good cause for his late and successive petition.
SUPREME COURT
OF
NEVADA
3
(0) 1947A e•
presumption of prejudice under NRS 34.800(1)(a) because the claims were
previously available. As to the presumption of prejudice under NRS
34.800(1)(b), as explained below, he has failed to demonstrate a
fundamental. miscarriage of justice.
Actual innocence
Where, as here, 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 actual innocence of
the crime, the petitioner "must show that it is more likely than not that no
reasonable juror would have convicted him absent a constitutional
violation." Id. In this context, "actual innocence means factual innocence,
not mere legal insufficiency." Mitchell v. State, 122 Nev. 1269, 1273-74,
149 P.3d 33, 36 (2006) (internal quotations and citations omitted).
Similarly, when claiming a fundamental miscarriage of justice based on
ineligibility for the death penalty, the petitioner "must show by clear and
convincing evidence that, but for the constitutional error, no reasonable
juror would have found him death eligible." Pellegrini, 117 Nev. at 887, 34
P.3d at 537.
Leonard argues that not considering the merits of his
constitutional claims based on procedural grounds constitutes a
SUPREME COURT
OF
NEVADA
4
(0) 1947A
miscarriage of justice. Only two of Leonard's claims warrant brief
discussion. 3
First-degree murder
Leonard asserts actual innocence of first-degree murder based
on new mental health evidence that he claims establishes he was
incapable of forming the necessary intent (premeditation or lying in wait)
but that was not presented at trial due to counsel's ineffectiveness. We
conclude that the new evidence does not satisfy the very narrow actual-
innocence gateway to excuse the procedural bars that apply to the trial-
counsel claim. See Gibbs v. United States, 655 F.3d 473, 477 (6th Cir.
2011) (observing that "actual innocence is an extremely narrow exception"
to the application of procedural default rules) (internal quotation omitted).
The evidence at trial showed that Leonard waited for an opportunity to
attack Wright. Armed with a shank, he surreptitiously gained access to
Wright's cell by rushing into his cell just as the prison guard closed the
cell door, trapping Wright inside. Wright suffered 21 stab wounds from
his head to his feet, with the fatal wound penetrating the pericardial sac of
his heart; Leonard sustained superficial scratches. Although the new
mental health evidence indicates that Leonard has poor impulse control
and may react violently and uncontrollably when he feels threatened,
intoxicated, or frightened, considering the trial evidence, Leonard has not
established that it was more likely than not that no reasonable juror
would convict him of first-degree murder.
3 We further conclude that the district court did not err by denying
his actual-innocence claims without conducting an evidentiary hearing.
SUPREME COURT
OF
NEVADA
5
kO) 1947A e
Death penalty
Leonard also argues that new mitigation evidence establishes
that he is actually innocent of the death penalty. We recently decided in
Lisle v. State, 130 Nev., Adv. Op. 39 (2015) 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 aggravating
circumstances. Therefore, a claim of actual innocence of the death penalty
offered as a gateway to reach a procedurally defaulted claim cannot be
grounded in new evidence of mitigating circumstances. Id.
Having considered Leonard's claims and concluded that they
lack merit, we
ORDER the judgment of the district court AFFIRMED.
C.J
Hardesty
Parraeuitre
Gibbons Pickering
TI
CHERRY and SAITTA, JJ., dissenting:
We dissent. For the reasons expressed in our dissent in Lisle
v. State, 131 Nev., Adv. Op. 39 (2015), we would reverse the judgment and
remand this matter to the district court for an evidentiary hearing to
determine the credibility of Leonard's new evidence of actual innocence.
Leonard presented new evidence that he was actually innocent
of first-degree murder. This evidence consisted of statements and
SUPREME COURT
OF
NEVADA
6
(0) 1947A .51qP.
evaluations from three mental health experts who opined that Leonard
had poor impulse control, angered easily, and tended to over-react.
Specifically, one expert opined that Leonard's "history of psychological
trauma and abuse set him up to become hyper-vigilant and hyper-reactive
in situations in which he feels threatened" and that hyper-vigilance in
combination with his brain dysfunction resulted in an inability to
formulate the intent to kill when he perceives threat. Another expert
concluded that the combined effect of multiple pathological factors caused
Leonard to inaccurately "perceive events and people," and he "irrationally
perceived life-threatening situations and was unable to restrain his violent
impulses." Leonard pursued a self-defense theory at trial. This new
evidence would have gone a long way in sustaining that theory. While
recognizing the gravity of the evidence presented at trial to support first-
degree murder, we conclude that Leonard's new evidence justifies an
evidentiary hearing to test its credibility.
Leonard also presented new mitigation evidence to
demonstrate his actual innocence of the death penalty. As we observed in
Lisle, eligibility for the death penalty in Nevada requires two findings by
the jury: (1) at least one aggravating circumstance and (2) "that there are
no mitigating circumstances sufficient to outweigh the aggravating
circumstance or circumstances." Id.; see NRS 175.554(3). The plain
language of the statute compels consideration of credible new mitigation
evidence in an actual-innocence claim. Here, Leonard presented
mitigation evidence illustrating his dysfunctional childhood, where he was
subjected to neglectful, alcoholic parents and violence from his parents,
stepfather, and other men. Not surprisingly, Leonard performed poorly in
school and became involved with alcohol and drugs at a young age, often
selling drugs for his father. This dysfunction and abuse led to Leonard
SUPREME COURT
OF
NEVADA
7
(0) 1947A 4434F
engaging in significant criminal activity. New mental health evidence
suggested that, in his childhood, Leonard had been subjected to "severe
abuse, neglect, head injuries, violence, environmental instability and
pathological behavior by caretakers." As a result, he suffered from
longstanding "major mental illness, impoverished inhibitory controls plus
cognitive impairments and distortions or reality" that suppressed his
ability to control and conform his behavior to social and legal standards.
The evidence also showed that Leonard suffered from a variety of clinical
disorders, borderline antisocial personality disorder, serial head trauma,
and psychosocial stressors. If credible, the new mitigation material is
clear and convincing evidence that Leonard is actually innocent of the
death penalty. See Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537)
(2001) (observing the standard for a claim of actual innocence). We
conclude that this new evidence demands an evidentiary hearing to
determine its credibility.
J.
cc: Hon. James Todd Russell, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Attorney General/Las Vegas
Carson City Clerk
SUPREME COURT
OF
NEVADA
8
10/ 1947A caleo