Bejarano v. State

• Decision Date: 16 November 2006
• Docket Number: No. 44297.,44297.
• Citation: 146 P.3d 265
• Parties: John BEJARANO, a/k/a Juan Munoz, a/k/a John Bejarno, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

146 P.3d 265

John BEJARANO, a/k/a Juan Munoz, a/k/a John Bejarno, Appellant, v. The STATE of Nevada, Respondent.

No. 44297.

Supreme Court of Nevada.

November 16, 2006.

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Franny A. Forsman, Federal Public Defender, and David S. Anthony, Assistant Federal Public Defender, Las Vegas, for Appellant.

George Chanos, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.

Before the Court En Banc.

OPINION

ROSE, C.J.

In this appeal, we decide whether this court's 2004 decision in McConnell v. State¹ retroactively applies to appellant John Bejarano's final conviction and sentence of death. We hold that McConnell set forth a new rule of substantive law that must be given retroactive application.

Applying our holding to Bejarano's case, we conclude that the robbery felony aggravator found by the jury is invalid pursuant to McConnell. Because the receiving-money aggravator also found by the jury was based on the robbery, it too is invalid. We strike them both and reweigh. After doing so, we conclude that any effect these two aggravators had on the jury's decision to impose a death sentence was harmless beyond a reasonable doubt. We affirm the district court's order denying Bejarano post-conviction relief.

FACTS

On March 2, 1987, Reno taxicab driver Roland Wright was found dead, shot twice in the head at point-blank range with a sawed-off rifle and robbed of about $100 to $250. Bejarano was later arrested and charged with the following crimes: murder with the use of a deadly weapon, robbery with the use of a deadly weapon, being an ex-felon in possession of a firearm, possession and disposition of a sawed-off rifle, possession of a stolen motor vehicle, and carrying a concealed weapon. The murder count charged in pertinent part that Bejarano "did willfully, unlawfully, and with malice aforethought, deliberation, and premeditation, and during the course and commission of a robbery, kill and murder [Wright]."

The State later filed a notice of intent to seek death, alleging the following six aggravating circumstances: (1) Bejarano was under a sentence of imprisonment pursuant to NRS 200.033(1), i.e., probation from a 1985 misdemeanor conviction in Idaho for battery on a police officer; (2) he had a previous felony conviction involving the use or threat of violence pursuant to NRS 200.033(2), i.e., a 1979 conviction for aggravated assault in Idaho; (3) he had a previous felony conviction involving the use or threat of violence pursuant to NRS 200.033(2), i.e., a 1981 conviction for aggravated assault in Idaho; (4) the murder was committed during the commission of a robbery pursuant to NRS 200.033(4); (5) the murder was committed to avoid or prevent a lawful arrest pursuant to NRS 200.033(5); and (6) the murder was committed for the purpose of receiving money or any other thing of monetary value pursuant to NRS 200.033(6).

A six-day jury trial began in March 1988, after which the jury found Bejarano guilty of all charges. After the ensuing penalty hearing, the jury imposed a sentence of death. This court affirmed Bejarano's conviction and death sentence in an unpublished order in December 1988.²

Bejarano thereafter filed in state district courts two post-conviction petitions challenging his conviction. In each case, this court issued an opinion affirming the district court decisions to deny him relief.³

In September 2003, Bejarano filed the instant petition in district court and subsequently filed an amended petition. The district court denied Bejarano's petition on October 7, 2004, finding it untimely and procedurally barred pursuant to NRS 34.726(1). This appeal followed.

DISCUSSION

Bejarano raises numerous issues on appeal from the district court's order denying him relief in this—his third—state post-conviction petition. The most important question raised is: Does this court's 2004 opinion in McConnell apply retroactively to final cases?

As a threshold matter, we recognize that Bejarano did not adequately raise his McConnell challenge before the district court. Normally, we will review on appeal only claims presented to the district court in the first instance.⁴ Here, however, the district court denied Bejarano's petition before this court published McConnell. Thus, a claim pursuant to that decision was not reasonably available to Bejarano. As further discussed below, he has therefore demonstrated good cause for failing to raise this claim earlier. He has also alleged prejudice.⁵

Additionally, the retroactivity of McConnell presents an issue of law that warrants our review; the relevant facts of this case are not in dispute; both parties have had an opportunity before this court to brief this issue and orally argue their positions; and this issue is significant and needs to be decided, as it appears in several cases pending before us. Under these circumstances, we conclude that it is appropriate in this appeal to decide whether McConnell is retroactive. We reach this retroactivity issue in the course of applying the relevant procedural default rules that govern post-conviction habeas corpus proceedings.

I. Procedural bars relevant to Bejarano's claims

Three statutory default provisions are applicable to Bejarano's habeas petition. NRS 34.726(1) provides that a post-conviction habeas petition challenging the validity of a judgment of conviction must be filed within one year after this court issues the remittitur from a timely direct appeal. NRS 34.810(1)(b) provides that a post-conviction habeas petition must be dismissed where the defendant's conviction was the result of a trial and his claims could have been raised either before the trial court, on direct appeal, in a previous petition, or in any other proceeding. And NRS 34.810(2) provides that a second or successive petition must be dismissed if the defendant fails to allege new or different grounds and the prior petition was decided on its merits or if the defendant's failure to assert those grounds in the prior petition constituted an "abuse of the writ."

Bejarano's instant habeas petition was filed over 15 years after this court issued the remittitur from his direct appeal. It was clearly untimely under NRS 34.726(1). Bejarano filed both a direct appeal and two previous post-conviction petitions. Because most of the claims in his instant petition could either have been raised earlier or actually were, they are also subject to default under NRS 34.810(1)(b) or (2). Under one or more of these statutory provisions, Bejarano's instant petition appears procedurally barred.

However, a procedural default is excused if a petitioner establishes both good cause for the default and prejudice.⁶ Good cause for failing to file a timely petition or raise a claim in a previous proceeding may be established where the factual or legal basis for the claim was not reasonably available.⁷ Prejudice occurs where the errors worked to a defendant's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions."⁸

Even absent a showing of good cause, this court will consider a claim if the petitioner can demonstrate that applying the procedural bars would result in a fundamental miscarriage of justice.⁹ Such a miscarriage is shown where an invalid death penalty aggravator is stricken and after reweighing "there is a reasonable probability that absent the aggravator the jury would not have imposed death."¹⁰

We have carefully reviewed the claims Bejarano raises on appeal from the district court's denial of his habeas petition.¹¹ Except for one—his McConnell challenge—he failed to demonstrate good cause for their default. Nor did he demonstrate prejudice, let alone a fundamental miscarriage of justice sufficient to excuse his procedural default. We therefore affirm the district court's denial of those claims.¹²

Bejarano's McConnell challenge, however, warrants further discussion. Because this claim was not reasonably available when Bejarano filed his first, timely post-conviction habeas petition or in subsequent proceedings, there is good cause to excuse its default.¹³ The question of prejudice remains. Prejudice will be shown if this court determines two things: McConnell is retroactive and applies here, and there is a reasonable doubt that the jury would have returned a sentence of death absent any stricken aggravating circumstances.¹⁴

We will address briefly one other possible bar to Bejarano's McConnell claim—the doctrine of the law of the case, which holds that "[t]he law of a first appeal is the law of the case on all subsequent appeals in which the facts are substantially the same."¹⁵ Here, this court has previously affirmed the validity of the robbery felony aggravator and receiving-money aggravator found by the jury. However, the doctrine of the law of the case is not absolute, and we have the discretion to revisit the wisdom of our legal conclusions if we determine that such action is warranted.¹⁶ Such action is of course warranted if we determine that a new rule with retroactive effect contradicts the law of the case.

II. Retroactivity of McConnell

We expounded a three-step analysis in Colwell v. State¹⁷ for determining whether a constitutional rule of criminal procedure applies retroactively in Nevada. The first inquiry is whether the rule under consideration is new.¹⁸ If a rule is not new, retroactivity is not an issue, and the rule applies even on collateral review of a conviction that is final.¹⁹ If the rule is new, the second inquiry is whether the conviction of the person invoking the rule has become final.²⁰ If the conviction is not final—e.g., it is under review on direct appeal—then the new rule must be applied.²¹ Finally, if the conviction has become final, a new rule does not apply retroactively unless one of two exceptions to nonretroactivity pertains.²² So...