Clem v. State
| Decision Date | 30 December 2003 |
| Docket Number | No. 40008, 40009, 40028.,40008, 40009, 40028. |
| Parties | Joseph CLEM, Appellant, v. The STATE of Nevada, Respondent. Kenneth Bridgewater, Appellant, v. The State of Nevada, Respondent. Gerald Bridgewater and James Player, Appellants, v. The State of Nevada, Respondent. |
| Court | Nevada Supreme Court |
JoNell Thomas, Las Vegas, for Appellant Joseph Clem.
Christopher R. Oram, Las Vegas, for Appellant Kenneth Bridgewater.
J. Chip Siegel, Chtd., and Jay L. Siegel, Las Vegas, for Appellants Gerald Bridgewater and James Player.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
Before the Court En Banc.
These are consolidated appeals from orders of the district court denying appellants' post-conviction petitions for writs of habeas corpus. Appellants challenge their sentence enhancements for the use of deadly weapons on the ground that they are entitled to the benefit of the deadly-weapon definition set forth in Zgombic v. State.1 Appellants rely primarily on the United States Supreme Court decision of Fiore v. White2 and the distinction in Bousley v. United States3 between the retroactivity rules applicable to decisions interpreting federal criminal statutes and those applicable to decisions announcing constitutional rules of criminal procedure. We conclude that appellants cannot avoid the law of the case, which upholds the validity of appellants' sentence enhancements, and have failed to overcome the procedural bars of NRS Chapter 34.
On September 26, 1986, appellants Joseph Clem, Gerald and Kenneth Bridgewater, and James Player were convicted pursuant to a jury trial of first-degree kidnapping, extortion and mayhem.4 The sentences for the crimes were enhanced, consistent with NRS 193.165, for appellants' use of deadly weapons, i.e., a "red-hot table fork and heated electric iron," to burn the victim during the commission of the crimes.5 At the time of appellants' crimes, NRS 193.165 did not define "deadly weapon," but required imposition of a sentence equal and consecutive to the term of imprisonment prescribed by statute for the crime being committed with the use of "a firearm or other deadly weapon."6
Appellants appealed to this court from their judgments of conviction, arguing, in part, that simple household items not proven capable of inflicting death could not qualify as deadly weapons under NRS 193.165.7
On August 25, 1988, we affirmed appellants' convictions and sentences. In rejecting their argument on the enhancement issue, we interpreted for the first time the meaning of "deadly weapon" as that term is employed at NRS 193.165. We then adopted a functional test, which considers how an instrument is used and the facts and circumstances of its use to determine whether the instrument is a deadly weapon. Applying this test, we concluded that appellants' use of the red-hot table fork and heated electric iron constituted the use of deadly weapons.8 We issued remittiturs in the direct appeals on September 13, 1988.
On May 15, 1989, appellants filed identical proper person petitions for post-conviction relief, which the district court denied. We summarily dismissed the appeals from the denials of these petitions.9
On September 13, 1990, in Zgombic v. State,10 we reexamined our decision in Clem v. State and overruled its functional test, replacing it with a narrower test that required the instrument used to be "inherently dangerous" to qualify as a deadly weapon under NRS 193.165.11 We defined "inherently dangerous" to mean "that the instrumentality itself, if used in the ordinary manner contemplated by its design and construction, will, or is likely to, cause a life-threatening injury or death."12
On December 13, 1990, appellants filed a proper person post-conviction petition for a writ of habeas corpus in the Seventh Judicial District Court, claiming that Zgombic's "inherently dangerous" test must be applied retroactively to their cases. On September 16, 1991, appellant Gerald Bridgewater also raised the same claim in an individually filed proper person petition for a writ of habeas corpus in the First Judicial District Court. The district courts denied the petitions, and on appeal to this court, the cases were consolidated.13 On December 23, 1993, in Bridgewater v. Warden,14 we affirmed the denials of appellants' petitions. We rejected their retroactivity argument on the merits, concluding that "Zgombic created a new, unforeseeable definition of `deadly weapon' which is not of constitutional moment."15
In 1995, Zgombic's narrow definition of "deadly weapon" was superseded by legislative amendment to NRS 193.165.16 The amendment added a statutory definition of "deadly weapon," which incorporates both Clem's functional test and Zgombic's "inherently dangerous" test. However, as we have recognized, the amendment applies only to crimes committed on or after October 1, 1995.17
It appears that after the legislative amendment, appellants, with the possible exception of Kenneth Bridgewater, continued, unsuccessfully, to seek relief from federal courts as well as from this court.18
Finally, on October 9, 2001, appellants filed in the Eighth Judicial District Court the post-conviction petitions for writs of habeas corpus at issue here. Each petition raised the issue of whether appellants are entitled to the benefit of Zgombic's narrowed definition of "deadly weapon." The State opposed the petitions and asserted the law of the case doctrine, laches, the time bar at NRS 34.726, and the successive petition bar at NRS 34.810(2). The district court heard argument on the petitions and denied relief. The court entered its final orders on October 11, 2002. Appellants now appeal from these orders.19
The law of the case doctrine holds that the law of a first appeal is the law of the case on all subsequent appeals in which the facts are substantially the same.20 In Clem, we ruled that appellants' sentence enhancements for the use of a deadly weapon were valid. In Bridgewater, we decided that Zgombic's new, narrower definition of "deadly weapon" was not retroactive. These prior decisions now stand as the law of the case. We will depart from our prior holdings only where we determine that they are so clearly erroneous that continued adherence to them would work a manifest injustice.21
Additionally, appellants filed the petitions at hand more than thirteen years after this court issued its remittiturs in the direct appeals, and they have previously raised and received determinations on the merits of the claim that Zgombic's definition applies retroactively to their cases. Thus, the one-year time bar at NRS 34.726 and the successive petition bar at NRS 34.810(2) apply here.22 Appellants may overcome these procedural bars with a sufficient showing of good cause and actual prejudice.23
To establish good cause, appellants must show that an impediment external to the defense prevented their compliance with the applicable procedural rules.24 A qualifying impediment might be shown where the factual or legal basis for a claim was not reasonably available at the time of any default.25 In Kimmel v. Warden, this court opined, without deciding, that new state-law claims might constitute good cause in this context.26 However, we now determine that proper respect for the finality of convictions demands that this ground for good cause be limited to previously unavailable constitutional claims.27 Further, appellants cannot manufacture good cause, as they largely attempt to do here, by arguing that this court's prior decisions were erroneous under the law that existed at the time of those decisions.28 Absent good cause, appellants may only defeat the statutory procedural bars by showing that they have suffered a fundamental miscarriage of justice.29 The fundamental miscarriage of justice standard requires a colorable showing that constitutional error has resulted in the conviction of one who is actually innocent.30
Appellants primarily contend that this court erroneously held in Bridgewater that our decision in Zgombic does not apply to their cases and that this error allows them to avoid the procedural bars. Appellants rely mainly on Fiore v. White,31 a recent opinion by the United States Supreme Court. They assert that Fiore established new law and that this law governs here. According to appellants, under Fiore retroactivity is not an issue here because Zgombic simply clarified the law as it existed at the time of their convictions and therefore its stricter definition of "deadly weapon" applies to their cases. Appellants also argue that even if Zgombic announced new law that should be subject to retroactivity analysis, our decision in Bridgewater failed to appreciate that Zgombic made substantive law, requiring retroactive application under Bousley v. United States.32
We conclude that appellants' efforts to overcome the procedural bars fail. As we explain below, Fiore did not establish new law and does not govern here. Further, this court did make new law in Zgombic, and our decision not to apply that law retroactively to final convictions is sound.33 Appellants' actual innocence claim fails because it mistakenly assumes that constitutional error occurred and entitles appellants to Zgombic's definition.
The United States Supreme Court's decision in Fiore concerned a conviction for violating a Pennsylvania statute that prohibited operating a waste facility without a permit. The Pennsylvania Supreme Court declined review, and Fiore's conviction became final. Later, the Pennsylvania Supreme Court reviewed the conviction of Fiore's codefendant, Scarpone, interpreted the same state statute—for the first time—and held on nearly identical facts that Scarpone had not violated the statute.34 Based on the decision in Scarpone's case, Fiore unsuccessfully sought...
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