138 P.3d 453 (Nev. 2006), 45263, State v. Powell

Docket Nº:45263.
Citation:138 P.3d 453
Opinion Judge:OPINION BECKER, J.
Party Name:The STATE of Nevada, Appellant, v. Kitrich POWELL, Respondent.
Attorney:George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Appellant., Cristalli & Saggese, Ltd., and Michael V. Cristalli, Las Vegas; Christopher R. Oram, Las Vegas, for Respondent.
Case Date:July 13, 2006
Court:Supreme Court of Nevada

Page 453

138 P.3d 453 (Nev. 2006)

The STATE of Nevada, Appellant,


Kitrich POWELL, Respondent.

No. 45263.

Supreme Court of Nevada

July 13, 2006

Page 454

[Copyrighted Material Omitted]

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George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Appellant.

Cristalli & Saggese, Ltd., and Michael V. Cristalli, Las Vegas; Christopher R. Oram, Las Vegas, for Respondent.

Before the Court En Banc.



Respondent Kitrich Powell filed a petition for a writ of habeas corpus challenging his first-degree murder conviction and death sentence. The district court denied the petition for the most part, a decision which we affirmed in an earlier appeal. However, the district court also eventually determined that Powell's trial counsel were ineffective in failing to call Powell's brothers to testify at the penalty phase of his trial. It therefore vacated his death sentence and ordered a new penalty hearing. We conclude that Powell was not prejudiced by his counsel's deficient performance and reverse. 1


In 1991, a jury convicted Powell of first-degree murder of his girlfriend's four-year-old daughter, Melea Allen. Powell had subjected the child to repeated beatings which eventually resulted in a head injury causing her death. Following a penalty hearing, the jury imposed a sentence of death. This court affirmed Powell's conviction, but the United States Supreme Court vacated this court's judgment and remanded. 2 On remand, this court concluded that the erroneous admission of evidence of statements that Powell made during a period of illegal detention was harmless beyond a reasonable doubt. 3

In February 1998, Powell timely filed in proper person a post-conviction petition for a writ of habeas corpus. Various attorneys filed a total of four supplemental pleadings on Powell's behalf in December 1998, July 1999, November 2000, and October 2001. In July 2002, the district court denied Powell's habeas claims relating to the guilt phase of his trial. But the court found that Powell's counsel had been ineffective during the penalty phase by failing to call his father and two brothers to testify, and it ordered a new penalty hearing. The State appealed, and Powell cross-appealed. In August 2003, this court reversed the district court's grant of a new penalty hearing and remanded for an evidentiary hearing on counsel's failure to call Powell's family members to testify. We also reversed the district court's denial of Powell's claim that his counsel were ineffective in failing to object to alleged prosecutorial misconduct during the penalty hearing and remanded for a determination of that claim on the merits. We otherwise affirmed the district court's order. 4

On remand, the district court held evidentiary hearings in December 2003 and February 2005. Powell's trial attorneys James Mayberry and David Schieck testified, as did defense investigator Lorne Lomprey. Before the trial, Mayberry spoke to Powell's father by phone, and Lomprey met the father at his home in Pennsylvania; both asked him to testify for Powell, but he refused. None of the three recalled contacting either of Powell's brothers. Schieck testified that someone from the team should have done so.

Powell's brothers, Peter and Paul Powell, also testified. Peter was Powell's younger brother and had retired from a career in the

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Navy. Paul was Powell's older brother and an airline pilot. At the time of the trial, Peter was stationed in Mississippi, and Paul lived in Chicago. Both testified that they were willing and able to testify for their brother at his trial but were never contacted by any one from the defense team. They would have told jurors that they loved their brother and his life was worth sparing, and they would have urged the jurors not to sentence him to death. Paul testified that he flew to Las Vegas after Powell was charged, met with his brother at the jail, and called and went to Mayberry's office, but Mayberry was not in and never contacted him.

The district court determined that trial counsel had been ineffective in failing to call Powell's brothers to testify in mitigation; it vacated his death sentence and ordered a new penalty hearing. The court stated in its order that "had the jury heard the testimony of Mr. Powell's brothers as they testified at the evidentiary hearing, there is a probability that a different outcome of the penalty phase would have occurred."



The State contends first that Powell's claim that his counsel were ineffective in failing to find his brothers and call them to testify is procedurally barred. Powell's claim was raised nearly three years after Powell's initial petition, and the State contends that it did not relate back to that petition and therefore was untimely. However, the State advances these contentions for the first time in this appeal, even though it concedes that Powell raised the claim in a supplemental pleading filed in the district court in November 2000. The State also complains that the nature of Powell's claim evolved during the proceedings below; nonetheless, the State never challenged the claim as untimely below.

"Generally, failure to raise an issue below bars consideration on appeal." 5 We nevertheless resolve the issue in this case and conclude that Powell's claim was not untimely.

To overcome the statutory procedural bars, a petitioner must demonstrate good cause for delay in filing his petition or for bringing new claims or repeating claims in a successive petition, and he must demonstrate undue or actual prejudice. 6 To establish good cause, a petitioner must show that an impediment external to the defense prevented a claim from being raised or properly resolved earlier. 7 Such impediments include cases where "the factual or legal basis for a claim was not reasonably available to counsel or ... 'some interference by officials' made compliance [with a procedural rule] impracticable." 8 To establish prejudice, a petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." 9

As an initial point, NRS 34.810 does not apply here, although the State invokes it. NRS 34.810(1)(b) requires a court to dismiss a habeas petition that presents claims that could have been presented at trial, on direct appeal, or in any other proceeding unless the court finds both cause for failing to present the claims earlier and actual prejudice to the petitioner. But it is proper, as Powell has done, to claim ineffective assistance of trial counsel for the first time in a first post-conviction habeas petition, if it is timely, because such claims are generally not appropriate for review on direct appeal. 10

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As for timeliness, the State does not dispute that Powell's habeas petition filed on February 4, 1998, was timely. That petition alleged in part that Powell's counsel "failed to conduct an adequate investigation to discover and present all available mitigating evidence." In the supplemental pleading filed on November 17, 2000, Powell raised the specific claim that his counsel should have called his brothers to testify in mitigation. The State argues that the specific claim did not relate back to the initial claim and was therefore untimely. This argument is unpersuasive.

On its face NRS 34.726, which sets forth the relevant limitations period, applies to habeas petitions, not supplemental pleadings. NRS 34.726(1) requires "a petition that challenges the validity of a judgment or sentence" to be filed within one year after entry of the judgment of conviction or after this court issues its remittitur. (Emphasis added.) Likewise, the provisions regarding laches facially apply to petitions. NRS 34.800(1) provides that "[a] petition may be dismissed if delay in the filing of the petition " prejudices the State in responding to the petition, unless the petitioner could not reasonably have known the grounds for the petition before the prejudice occurred, or in conducting a retrial, unless a fundamental miscarriage of justice occurred in the trial or sentencing. (Emphasis added.) And NRS 34.800(2) provides for a rebuttable presumption of prejudice to the State if more than five years passes between a judgment of conviction, a sentence, or a decision on direct appeal "and the filing of a petition challenging the validity of a judgment of conviction." (Emphasis added.)

The State nevertheless argues that the supplementation of Powell's original petition was untimely and therefore procedurally barred. It cites Mayle v. Felix, 11 in which the Supreme Court held that an amended federal habeas petition did not relate back to the original petition, and thus was barred by the federal one-year limitations period, when it asserted a new claim not tied to the common core of operative facts set forth in the original pleading. The Court applied Fed.R.Civ.P. 15(c)(2), which provides that an amendment to a pleading relates back to the filing date of the original pleading when the claim asserted in the amendment "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." 12

The State urges the same result here pursuant to NRCP 15(c), which largely tracks the language of the federal rule. This court has articulated the standard set forth in NRCP 15(c) as follows: "If the original pleadings give fair notice of the fact situation from which the new claim for liability arises, the amendment should relate back for limitations purposes." 13 However, we have never held that NRCP 15(c) governs amendments or supplements to habeas petitions. The Nevada Rules of Civil Procedure do apply in habeas proceedings ...

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