Middleton (David) v. Warden (Death Penalty-Pc) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
DAVID STEPHEN MIDDLETON, No. 81217
Appellant,
vs.
WILLIAM A. GITTERE, WARDEN,
FILED
Respondent. DEC 0 2 2022
ELI MI A MOWN
SU COURT
ORDER OF AFFIRMANCE
EPU1Y sLERK
This is an appeal from a district court order denying appellant
David Middleton's postconviction petition for a writ of habeas corpus.'
Second Judicial District Court, Washoe County; David A. Hardy, Judge.
Middleton was convicted by jury verdict in 1997 of numerous
felony offenses related to the abduction and killing of two women, Katherine
Powell and Thelma Davila. Specifically, the jury found Middleton guilty of
two counts of first-degree murder, two counts of first-degree kidnapping,
one count of grand larceny, one count of fraudulent use of a credit card, and
two counts of felon in possession of a firearm. The jury sentenced Middleton
to death for each murder. Over the ensuing years, this court affirmed the
judgment of conviction and district court orders denying two postconviction
habeas petitions. See Middleton v. Warden (Middleton III), No. 62869, 2016
WL 7407431 (Nev. Dec. 21, 2016) (Order of Affirmance); Middleton v. State
(Middleton II), Docket No. 50457 (Nev. June 16, 2009) (Order of
Affirmance); Middleton v. State (Middleton I), 114 Nev. 1089, 968 P.2d 296(1998). Middleton filed a third postconviction habeas petition in 2014,
"Appellant filed a motion to consolidate this appeal with an original
petition for a writ of mandamus also pending before this court. See
Middleton v. Dist. Court, No. 85637. Having considered the motion and the
State's opposition, we decline to consolidate these matters.
SUPREME COURT
OF
NEVADA
(0) 1947A
22 -3198
which the district court dismissed as procedurally barred. This appeal
followed.
Middleton's petition included claims that were untimely, given
that he raised them roughly 16 years after this court issued its remittitur
on direct appeal. NRS 34.726(1). The petition also included claims that
were successive because he previously litigated two postconviction habeas
petitions, and claims constituting an abuse of the writ because they could
have been litigated in the prior postconviction habeas petitions. NRS
34.810(1)(b)(2); NRS 34.810(2). Accordingly, the claims were subject to
dismissal absent a showing of good cause and actual prejudice, NRS
34.726(1); NRS 34.810(1)(b), (3), or that the failure to consider the claims
would result in a fundamental miscarriage of justice, which standard is met
when the petitioner makes a colorable showing of actual innocence, Berry v.
State, 131 Nev. 957, 966, 363 P.3d 1148, 1154 (2015). The latter gateway to
consideration of a procedurally barred claim requires the petitioner to
present new evidence of his factual innocence. See House v. Bell, 547 U.S.
518, 537 (2006) NA] 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.")
(quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)); Berry, 131 Nev. at 966,
363 P.3d at 1154 (discussing actual-innocence inquiry). The actual-
innocence gateway is demanding and will result in review only in
extraordinary cases. Berry, 131 Nev. at 969, 363 P.3d at 1155. Determining
whether a petitioner should be granted an evidentiary hearing on an actual-
innocence gateway claim "is a highly factual inquiry" that considers all the
SUPREME COURT
OF
NEVADA
2
(01 1947A
evidence—the new evidence and the evidence produced at trial.' Id. at 968,
363 P.3d at 1155; see also House, 547 U.S. at 537-38 (recognizing that a
court addressing merits of actual-innocence inquiry must do so "on a fully
developed record").
Claims related to the Davila murder conviction
Middleton alleged in his petition that the State presented
unreliable DNA evidence and testimony linking Davila to a storage unit
rented by Middleton. To support that allegation, Middleton pointed to
evidence allegedly withheld by the State in violation of Brady v. Maryland,
373 U.S. 83 (1963)—a forensic report as to evidence recovered from a roll of
duct tape and impeachment evidence about the individual who interpreted
the preliminary hearing testimony of a witness who identified clothing
seized from the storage unit as belonging to Davila. He contends that the
Brady violation establishes good cause and actual prejudice and that the
failure to consider these claims and the new evidence would result in a
fundamental miscarriage of justice. We disagree.
2Because the inquiry for purposes of the actual-innocence gateway
requires examination of both the new evidence and the trial evidence, the
trial transcripts generally will be necessary for this court's review.
Although it was Middleton's responsibility to provide the record necessary
for our review of the issues he has raised on appeal, NRAP 30(b)(1); Thomas
v. State, 120 Nev. 37, 43 n.4, 83 P.3d 818, 822 n.4 (2004); see also Greene v.
State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The burden to make a
proper appellate record rests on appellant."), he did not provide the
complete trial transcripts in his appendices. Thus, in considering
Middleton's arguments with respect to the actual-innocence gateway, we
have considered the limited record provided and otherwise have assumed
that the omitted parts of the trial record support the district court's
decision. See Riggins v. State, 107 Nev. 178, 182, 808 P.2d 535, 538 (1991)
("[T]he missing portions of the record are presumed to support the district
court's decision."), rev'd on other grounds, 504 U.S. 127 (1992).
SUPREME COURT
OF
NEVADA
3
(0) I947A mato
Brady obliges a prosecutor to reveal evidence favorable to the
defense when that evidence is material to guilt, punishment, or
impeachment. Mazzan v. Warden, 116 Nev. 48, 66, 993 P.2d 25, 36 (2000).
A Brady violation thus has three prongs: "(1) the evidence is favorable to
the accused, either because it is exculpatory or impeaching; (2) the State
withheld the evidence, either intentionally or inadvertently; and (3)
prejudice ensued, i.e., the evidence was material." State v. Huebler, 128
Nev. 192, 198, 275 P.3d 91, 95 (2012) (internal quotation marks omitted).
The second and third prongs of a Brady violation parallel the showings of
good cause and prejudice required when the claim is raised in a procedurally
barred petition. Id.Middleton's allegations based on the allegedly withheld forensic report
are not sufficient to establish good cau.se and prejudice or actual
innocence
Middleton argues that DNA evidence linking Davila to the
storage unit based on hair found on a roll of duct tape was unreliable
because initial inspections of the roll of duct tape did not indicate the
presence of hair, the chain of custody had gaps, and the results of the DNA
analysis were inconsistent. He asserts that the State withheld a forensic
report by analyst Charles Lowe, which Middleton assumes showed no result
for hair because a detective asked for the evidence to be examined multiple
times.
The allegations about the reliability of the DNA evidence
largely reargue claims Middleton raised in prior proceedings. The single
new allegation is based on a hoped-for conclusion that a forensic report
exists that proves no hair was present on the duct tape when it was seized
and that the report was withheld by the State. But Middleton did not
include the allegedly withheld forensic report in his pleadings or allege
SUPREME COURT
OF
NEVADA
4
(0) 1947A 424.
sufficient facts to suggest it exists. Such a speculative allegation could have
been levelled at any time, even during trial, and thus does not amount to
good cause. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506
(2003). And it is insufficient to demonstrate that the State withheld
material evidence for purposes of a Brady violation or to establish good
cause or prejudice based on a Brady violation. See Mazzan v. Warden, 116
Nev. 48, 67, 993 P.2d 25, 37 (2000).
Middleton's actual-innocence gateway argument also falls
short. Again, he has not offered any new evidence of factual innocence;
instead, he offers speculation and hoped-for conclusions. Relatedly, he does
not argue on appeal that no reasonable juror would have convicted him in
light of new evidence, as required for a gateway claim of actual innocence.
Berry, 131 Nev. at 966, 363 P.3d at 1154. Instead, he focuses on the DNA
evidence presented at trial and asserts that it was "thin" or insufficient and
repeatedly references how he was prejudiced by the admission of unreliable
DNA evidence. Those arguments are insufficient to demonstrate that the
district court erred in concluding that Middleton did not establish actual
innocence. See Sawyer v. Whitley, 505 U.S. 333, 345 n.13 (1992) ("If a
showing of actual innocence were reduced to actual prejudice, it would allow
the evasion of the cause and prejudice standard which we have held also
acts as an 'exception' to a defaulted, abusive, or successive claim[d [i]n
practical terms a petitioner would no longer have to show cause, contrary
to our prior cases."); Mitchell v. State, 122 Nev. 1269, 1273-74, 149 P.3d 33,
36 (2006) ("Actual innocence means factual innocence, not mere legal
insufficiency." (internal quotation marks omitted)). But even crediting
Middleton's allegations about the allegedly withheld forensic report, we are
not convinced the district court erred. Considering the hoped-for content of
SUPREME COURT
OF
NEVADA
5
(0) I947A
the allegedly withheld forensic report in light of all the evidence at trial,
there is no support for a conclusion that Middleton met the actual-innocence
test—"that it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence." Berry, 131 Nev. at 966, 363
P.3d at 1154 (quoting Schlup, 513 U.S. at 327). The "new evidence" at most
undermines the trial evidence that Davila's hair was found on a roll of duct
tape seized from Middleton's storage unit. But significant other trial
evidence linked Davila to Middleton and his storage unit, as recited in
Middleton I: Davila was seen with Middleton and Haley before her
disappearance; Middleton was seen outside Davila's home on the morning
she disappeared; Middleton had rented a storage unit under a fictitious
name and moved into a larger unit when Davila disappeared; Davila's
clothing was later recovered in that unit; and her hair was also found on a
plaid purple blanket recovered in the storage unit.3 114 Nev. at 1098-99,
968 P.2d at 303-04. Therefore, the district court did not err in denying this
claim as procedurally barred.
Middleton's allegations based on the allegedly withheld impeachment
evidence are not sufficient to establish good cause and prejudice or
actual innocence
Middleton argues that the State withheld unfavorable
information about Carlos Gonzalez, who interpreted for Davila's sister,
3To the extent Middleton asserts that the testimony placing him at
Davila's apartment and the other hair evidence were unreliable, he provides
no new evidence to support that assertion. And to the extent he attempts
to relitigate the claims related to that evidence raised in his second
postconviction habeas petition (that the chain of custody as to the hair
recovered from the blanket was so defective as to render the DNA evidence
inadmissible and that witnesses were alone with the evidence and could
have tampered with it), we previously rejected those claims in Middleton
III, and he has not shown good cause for relitigating these claims.
SUPREME COURT
OF
NEVADA
6
101 t 947A
Dora Valverde, during the preliminary hearing. He asserts that Gonzalez's
prior sex offense convictions, recent Nevada convictions for falsifying his
qualifications and other instances of fraud, statements during his
sentencing proceedings, and billing records constitute new evidence that
could have impeached Valverde's testimony.
Information about Gonzalez's prior conviction was publicly
available at the time of Middleton's trial in 1997. Middleton thus cannot
demonstrate good cause for his delay in raising a claim based on that
information. See Hathaway, 119 Nev. at 252, 71 P.3d at 506 (noting that
good cause exists if an impediment external to the defense prevented
compliance with state procedural rules, including because the legal or
factual basis of the claim was not reasonably available). More importantly,
Middleton fails to demonstrate prejudice or a Brady violation because the
information about Gonzalez is not material to guilt or punishment. See
Huebler, 128 Nev. at 198, 275 P.3d at 95 (explaining that the third prong of
a Brady violation requires a showing that the evidence is material to guilt
or punishment, which parallels the prejudice showing required to excuse a
procedural bar). Valverde testified at trial through a different interpreter,
and her trial testimony about discovering Davila missing and identifying
Davila's property was consistent not only with her preliminary hearing
testimony but also with her earlier statements to police. Her identification
of Davila's clothing was also consistent with another witness's testimony.
Thus, evidence impeaching Gonzalez's translation of Valverde's preliminary
hearing testimony would have had little effect on the jury's weighing of
SUPREME COURT
OF
NEVADA
7
(DI I947A
Valverde's credibility or its guilty verdict.4 For the same reasons, Middleton
cannot meet the actual-innocence test based on the information about
Gonzalez. Therefore, the district court did not err in denying this claim as
procedurally barred.
Middleton's allegations based on the State's motion to withdraw
exhibits for DNA testing are not sufficient to establish prejudice or
actual innocence
Middleton argues that he is actually innocent of Davila's
murder because the witness identifications of Davila's clothing are
unreliable, and that his girlfriend, Evonne Haley, may be more responsible
for the crime in light of the State's 2014 request to conduct DNA testing on
clothing seized from Middleton's storage unit in an effort to link Middleton
and Haley to other murders. He contends that the State's testing request
suggests that it doubts the original clothing identifications, so if this court
declines to consider his claim, he would be prejudiced. Middleton further
argues that this new evidence establishes his actual innocence. We
disagree.
The State's request for additional DNA testing does not suggest
that the State doubts the trial testimony identifying Davila's clothing.
Quite the contrary. The request stemmed from anonymous letters received
by law enforcement in another state that suggested Middleton and Haley
participated in additional murders. Based on the allegations in those
letters, the State sought additional, more-advanced testing to determine if
it could detect DNA from other victims on clothing seized from Middleton's
storage unit. The State's request thus does not undermine confidence in the
4Middleton argues that "it is impossible to discern what was wrong
with the interpretations" and does not identify any specific instances in
which Gonzalez's interpretations were inaccurate.
SUPREME COURT
OF
NEVADA
8
CO) I 947A
verdict given that the anonymous letters that prompted the request
inculpate Middleton—they state that Middleton was involved in the two
murders for which he was convicted as well as another in Nevada and
several in other jurisdictions. See Lay v. State, 110 Nev. 1189, 1197, 886
P.2d 448, 453 (1994) (defining exculpatory evidence as evidence that
"explain[s] away the charge[s]").
Middleton further fails to meet the actual-innocence test based
on the State's request and the anonymous letters. Again, the anonymous
letters do not undermine confidence in the trial outcome. See Berry, 131
Nev. at 968-69, 363 P.3d at 1156 (recognizing that "the district court may
make some credibility determinations based on the new evidence in
determining whether to conduct an evidentiary hearing"). The letters do
not position Haley as an alternate suspect, just as a participant with
Middleton. In that respect, the letters are consistent with trial evidence
that suggested her involvement in the crimes, including evidence that
placed her near one of the victim's homes, with another victim, and using a
victim's credit card. Middleton I, 114 Nev. at 1095, 1098, 968 P.2d at 301,
303. And even if the letters insinuate that Haley was more involved than
the trial evidence suggested, that insinuation does not support a conclusion
or inference that Middleton was less culpable than the trial evidence
established. As Middleton has not shown the failure to consider his claim
would result in a fundamental miscarriage of justice, the district court did
not err in dismissing this claim without conducting an evidentiary hearing.5
5As Middleton did not demonstrate good cause and prejudice or the
failure to consider any of these claims amounted to a fundamental
miscarriage of justice, the cumulative consideration of these claims does not
SUPREME COURT
OF
NEVADA
9
ILO) 1)47A ADD
Claim that new bite mark evidence undermines the conviction and sentence
for Powell's mu,rder
Dr. Raymond Rawson testified at Middleton's trial that a
wound found "on Powell's breast was inflicted while she was still alive, that
it was a hard and painful bite causing bleeding below the skin, and that
Middleton inflicted it." Id. at 1097, 968 P.2d at 302. Middleton argues that
new evidence shows that Dr. Rawson's bite-mark-identification testimony,
which implicated him in Powell's killing and supported the torture
aggravating circumstance, was based on "junk science." He asserts that
absent this testimony, there is a reasonable probability of a different
outcome at both the guilt and penalty phases of trial.
The alleged good cause for challenging the bite-mark-
identification testimony now relies on asserted changes in professional
norms with respect to such testimony and reports of convictions based on
bite-mark-identification testimony being overturned. Although Middleton
represents that this changed landscape with respect to bite-mark-
identification testimony came to a head around 2013 or 2014, we are
convinced he could have raised this claim earlier. Convictions based on bite
mark evidence, even ones that had involved Dr. Rawson, had been
excuse the procedural bars to claims challenging his convictions related to
Davila's murder.
We also deny Middleton's motion for limited remand to conduct
genetic marker testing on items of clothing identified at trial as belonging
to Davila. Middleton did not seek to conduct genetic marker testing on
evidence while his petition was pending below and did not assert any claims
or good cause based on new evidence as a result of genetic marker testing.
Accordingly, new evidence developed from this testing would constitute new
claims or arguments raised for the first time on appeal. See McNelton v.
State, 115 Nev. 396, 416, 990 P.2d 1263, 1276 (1999) (declining to address
claims raised for the first time on appeal).
SUPREME COURT
OF
NEVADA
10
009 1947A
overturned as early as 2002 based on concerns about the reliability of bite-
mark-identification testimony. See Radley Balko, Forensics Fraud?, Reason
(Apr. 2009), https://reason.com/2009/03/24/forensics-fraud (noting the
Kennedy Brewer exoneration and describing infirmities in bite mark
evidence comparison techniques as they related to the prosecution of
Jimmie Duncan); Flynn McRoberts, Bite-mark verdict faces new scrutiny,
Release of other Death Row inrnate prompts Arizona to order DNA tests, Chi.
Trib., Nov. 29, 2004, 2004 WLNR 19819892 (describing how exoneration of
Ray Krone prompted court to grant review of Robert Tankersley's motion
for DNA testing and that Dr. Rawson had testified about bite mark evidence
in both cases); Maurice Possley, Old case, new research test validity of bite-
mark evidence, Chi. Trib., July 20, 2008, 2008 WLNR 13622669 (describing
exoneration of Robert Stinson, at whose trial Dr. Rawson testified for the
state); Daniele Selby, Why Bite Mark Evidence Should Never Be Used
in Criminal Trials, Innocence Project, Apr. 26, 2020,
https://innocenceproject.org/what-is-bite-mark- evidence-fore nsic-science
(describing successful challenges to convictions of Levon Brooks and
Kennedy Brewer, whose convictions were based largely on bite mark
evidence, were overturned in 2008). And scholarly articles called forensic
bite mark evidence into doubt well before 2014. See Nat'l Res. Council,
Strengthening Forensic Science in the United States: A Path Forward 173-
76 (2009), https://nap.nationalacademies.org/catalog/12589/strengthening-
forensic-science-in-the-united-state s-a -p ath-forw ard; see, e.g., Erica
Beecher-Monas, Reality Bites: The Illusion of Science in Bite-Mark
Evidence, 30 Cardozo L. Rev. 1369, 1371 (2009) ("The science behind bite-
mark testimony is murky at best."); Elizabeth L. DeCoux, The Admission of
Unreliable Expert Testimony Offered by the Prosecution: What's Wrong with
SUPREME COURT
OF
NEVADA
11
(0) I 947A
Daubert and How to Make it Right, 2007 Utah L. Rev. 131, 147 (2007) ("The
reliability of identification based on bite-marks found on human skin is
highly questionable."). Accordingly, a challenge to the bite-mark-
identification testimony was reasonably available long before Middleton
filed his petition in 2014, and thus, there is no good cause for Middleton's
failure to present this claim earlier. See Huebler, 128 Nev. at 198 n.3, 275
P.3d at 95 n.3 (indicating that a petitioner must seek postconviction relief
"within a reasonable time after" discovering a claim's factual predicate).
Middleton also did not meet the actual-innocence test with
respect to the murder conviction or the torture aggravating circumstance.
Even crediting Middleton's challenge to the expert's bite-mark-
identification testimony as unreliable, ample other evidence supports
Middleton's conviction for Powell's murder. Powell's hair and DNA were
found in Middleton's storage unit, material and fibers found with her body
were consistent with items found in Middleton's storage unit, her property
and items purchased with her credit card were discovered in Middleton's
storage unit, and Middleton's DNA was found on Powell's remains.
Middleton I, 114 Nev. at 1094-95, 1099-1100, 968 P.2d at 300-01, 304. In
addition, Middleton does not challenge the testimony that the wound was
inflicted while Powell was alive and that inflicting that injury would have
caused substantial pain. And evidence showing that Middleton held Powell
in the storage unit for the purpose of torturing her before killing her at least
circumstantially supports an inference that he inflicted the wound.
Therefore, the district court did not err in denying this claim without
conducting an evidentiary hearing.
SUPREME COURT
OF
NEVADA
12
(01 I947A
Claim based on the State's failure to disclose evidence that Haley was an
alternate suspect in both murders
Based on the anonymous letters forwarded to the Washoe
County Sheriffs Office in 2014, Middleton argues that the State withheld
evidence that it believed Haley was an alternate suspect in the killings of
Davila and Powell. He contends that this evidence undermines confidence
in the convictions and death sentences as it shows that he was less culpable
for the crimes.
The anonymous letters are not favorable to the defense. To the
contrary, they are inculpatory and consistent with evidence introduced at
trial. Trial testimony strongly suggested Haley helped Middleton lure and
abduct the victims as she had been seen socializing with Davila on three
occasions and outside Powell's apartment with Middleton shortly before her
abduction, and she used Powell's credit cards. Haley's statements
memorialized in the letters acknowledge her participation consistent with
the trial evidence. The statements even inculpated Middleton and Haley in
additional abductions and murders in Nevada and other states. Nothing in
the letters "explain[s] away the charge [s]" for which Middleton was
convicted or even suggests he is less culpable. Lay, 110 Nev. at 1197, 886
P.2d at 453; see also Huebler, 128 Nev. at 200 n.5, 275 P.3d at 96 n.5
(defining exculpatory evidence as evidence that tends to establish
innocence). Middleton thus cannot show that he will suffer prejudice if this
court does not consider the claim. And considering the inculpatory
information in the letters and the evidence presented at trial, he has not
met the actual-innocence test with respect to the convictions or death
sentences based on the information in the letters. Accordingly, the district
court did not err in denying this claim without conducting an evidentiary
hearing.
SUPREME COURT
OF
NEVADA
13
(0) I 947A
Cumulative error
Middleton argues that he is entitled to relief based on the
cumulative effect of errors. He contends that the district court should have
considered several claims that he raised on direct appeal and in his prior
petitions. He asserts that those claims must be considered again so that
their cumulative effect is considered with new claims for which he can avoid
the procedural bars.
As discussed above, Middleton did not allege sufficient
circumstances to avoid the procedural bars to the new claims raised in the
instant petition. And he did not allege any circumstances to avoid the
procedural bars that apply to the claims that were previously raised and
rejected other than to assert that they must be considered with the new
claims to assess the cumulative effect of the claimed errors. But claims that
have been rejected in prior proceedings cannot be relitigated to support a
cumulative error claim. See Rippo v. State, 134 Nev. 411, 436, 423 P.3d
1084, 1107 (2018) (rejecting argument that courts need to consider
cumulative effect of errors as good cause where prior claims were rejected
on the merits); In re Reno, 283 P.3d 1181, 1223-24 (Cal. 2012) (rejecting
CC
cumulative error" as good cause where prior claims were rejected on the
merits). Accordingly, the district court did not err in denying this claim
without conducting an evidentiary hearing.
Statutory laches
The State also pleaded laches. Because Middleton's petition
was filed more than five years after remittitur issued on direct appeal, NRS
34.800(2) imposes a rebuttable presumption of prejudice to the State. The
statute identifies two types of prejudice that must be rebutted by the
petitioner: (1) prejudice to the State "in responding to the petition, unless
SUPREME COURT
OF
NEVADA
14
101 I947A 44P4o
the petitioner shows that the petition is based upon grounds of which the
petitioner could not have had knowledge by the exercise of reasonable
diligence before the circumstances prejudicial to the State occurred," NRS
34.800(1)(a), and (2) prejudice to the State in its ability to retry the
petitioner, "unless the petitioner demonstrates that a fundamental
miscarriage of justice has occurred in the proceedings resulting in the
judgment of conviction or sentence," NRS 34.800(1)(b). Notably, NRS
34.800 operates independently of the procedural bars in NRS 34.726 and
NRS 34.810; as a result, a petition could be dismissed under NRS 34.800
even though a petitioner has shown good cause and actual prejudice to
satisfy NRS 34.726 and NRS 34.810. See Berry, 131 Nev. at 974, 363 P.3d
at 1159 (noting that a claim would be barred by laches under NRS 34.800
absent a showing of a fundamental miscarriage of justice, so "a showing of
good cause and actual prejudice [would] be immaterial"). As noted above,
Middleton has not demonstrated a fundamental miscarriage of justice, and
he has not argued that he rebutted the presumption of prejudice to the State
in its ability to retry him. See Howard v. State, 137 Nev., Adv. Op. 48, 495
P.3d 88, 92 n.4 (2021) (recognizing "that a successful actual-innocence-
gateway claim would necessarily satisfy the showing required under NRS
34.800(1)(b)"). Accordingly, the district court did not abuse its discretion in
applying statutory laches to dismiss Middleton's petition. See Chappell v.
State, 137 Nev., Adv. Op. 83, 501 P.3d 935, 961 (2021) (reviewing
application of statutory laches for abuse of discretion).
Denial of evidentiary hearing and motion to conduct discovery
Middleton argues that the district court should have permitted
discovery and held an evidentiary hearing on his claims. We discern no
abuse of discretion. See Berry, 131 Nev. at 969, 363 P.3d at 1156 (reviewing
SUPREME COURT
OF
NEVADA
15
(U) I947A
a district court's decision to grant or deny a petitioner's request for an
evidentiary hearing for an abuse of discretion); Means v. State, 120 Nev.
1001, 1007, 103 P.3d 25, 29 (2004) (reviewing a district court's resolution of
discovery issues for an abuse of discretion). As discussed above, Middleton
did not allege sufficient facts, even if proven at an evidentiary hearing, to
avoid the procedural bars. As such, he did not demonstrate good cause to
conduct discovery. See NRS 34.780(2) ("After the writ has been granted and
a date set for the hearing, a party may invoke any method of discovery
available under the Nevada Rules of Civil Procedure if, and to the extent
that, the judge or justice for good cause shown grants leave to do so.").6
Denial of rnotion to have expert present during DNA testing
Middleton argues that the district court erred in denying his
motion to have an expert present when the new DNA tests were conducted
on clothing seized from his storage unit. We disagree. Although there is
some authority for the proposition that a court may permit a defense
representative to attend DNA testing when that testing is likely to consume
an entire sample, see, e.g., Hooks v. State, 956 So. 2d 515, 516 (Fla. Dist. Ct.
App. 2007), Middleton did not allege that the testing will consume the entire
sample or that he would be unable to conduct his own analysis. Further,
because his request was raised in a postconviction proceeding where he
6Middleton asserts that he alleged sufficient facts to warrant an
evidentiary hearing on a claim related to the photo array shown to Lucille
Pooler, who identified Middleton as the man she saw outside Davila's
apartment on the morning of her disappearance. This contention is not
properly before this court because Middleton did not include this claim in
his postconviction petition below. See Hill v. State, 114 Nev. 169, 178, 953
P.2d 1077, 1084 (1998) (recognizing that appellate courts generally decline
to consider issues on appeal that were not raised in postconviction petitions
in district court).
SUPREME COURT
OF
NEVADA
16
(0) 1947A
failed to allege sufficient circumstances to warrant an evidentiary hearing
and discovery, he has not demonstrated that his own expert's presence is
warranted for the continued litigation of his postconviction petition.
Accordingly, the district court did not abuse its discretion in denying his
motion. See Means, 120 Nev. at 1007, 103 P.3d at 29.
Relitigation of motion to disqualify Washoe County District Attorney's Office
Middleton argues that the district court abused its discretion in
denying his motion to disqualify the Washoe County District Attorney's
Office (WCDA). The district court denied the motion because Middleton's
request to disqualify the WCDA had been rejected previously, including by
this court in connection with motion practice in Middleton HI. When
Middleton initiated an original proceeding before this court challenging the
district court's decision, we again rejected Middleton's effort to disqualify
the WCDA. Middleton v. Second Judicial Dist. Court, No. 78468, 2019 WL
5109616 (Nev. Oct. 11, 2019) (Order Denying Petition). Middleton now
complains that in denying his repeated efforts to disqualify the WCDA, the
district court and this court erred in not addressing the federal
constitutional objections he raised and that this court erred in declining to
revisit the standard set forth in State v. Eighth Judicial Dist. Court
(Zogheib), 130 Nev. 158, 321 P.3d 882 (2014), which he complains does not
consider the appearance of impropriety as a basis for imputed
disqualification of a district attorney's office.
Middleton has not demonstrated that the district court abused
its discretion. See Tomlin v. State, 81 Nev. 620, 624, 407 P.2d 1020, 1022
(1965). The district court did not ignore any controlling federal authority
cited by Middleton. Notably, the only federal authority Middleton cited in
his motion to disqualify was United States v. Schell, 775 F.2d 559, 566 (4th
Cir. 1985), which is not binding authority in Nevada. See Blanton v. N. Las
SUPREME COURT
OF
NEVADA
17
( 0) 1947A
Vegas Mon. Court, 103 Nev. 623, 633, 748 P.2d 494, 500 (1987) ("[Dlecisions
of the federal district court and panels of the federal circuit court of appeal
are not binding upon this court."). That case is also distinguishable as the
individual member of the WCDA who was disqualified (Joseph Plater) never
established an attorney-client relationship with Middleton and did not
participate in Middleton's prosecution, unlike the circumstances at issue in
Schell. 775 F.2d at 562. Therefore, the district court did not err in denying
the motion. And Middleton's challenges to our prior decisions with respect
to his efforts to disqualify the WCDA are out of order; any contention that
this court overlooked arguments or failed to apply controlling precedent in
the prior proceedings should have been raised in a petition for rehearing
under NRAP 40(c).
Having reviewed Middleton's contentions and concluded that
they do not warrant relief, we
ORDER the judgment of the district court AFFIRMED.7
0
...'s %.,-----,: -'
riarraguirre Hardesty
J.
/41:11.4.11 J. J.
Stiglich
Pieleg4WP J.
Herndon
J.
Pickering
The Honorable Abbi Silver having retired, this matter was decided
7
by a six-justice court.
SUPREME COURT
OF
NEVADA
18
(0) 1947A
cc: Hon. David A. Hardy, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
SUPREME COURT
OF
NEVADA
19
(0) I 947A