Colwell v. State
| Decision Date | 18 December 2002 |
| Docket Number | No. 38375.,38375. |
| Citation | 118 Nev. 807,59 P.3d 463 |
| Parties | Lawrence COLWELL, Jr., Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Christopher R. Oram, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and Lynn M. Robinson, Chief Deputy District Attorney, Clark County, for Respondent.
Before the Court En Banc.
This is an appeal from a district court order denying a post-conviction petition for a writ of habeas corpus. Appellant Lawrence Colwell, Jr., faces a death sentence. He contends for various reasons that the district court erred in denying his habeas petition without holding an evidentiary hearing. We conclude that this contention lacks merit. He also contends that his sentencing by a three-judge panel violated his Sixth Amendment right to a jury trial under a recent United States Supreme Court decision, Ring v. Arizona.1 We conclude that Ring does not apply here. We therefore affirm the district court's order.
On March 10, 1994, appellant Lawrence Colwell and his girlfriend, Merillee Paul, robbed and murdered a seventy-six-year-old man at the Tropicana Hotel in Las Vegas. Paul went with the victim to his room on the pretext of having sex with him. She then let Colwell into the room. He handcuffed and strangled the victim with a belt.
Colwell and Paul made their way to Oregon, where Paul turned herself in to authorities. She eventually agreed to plead guilty to first-degree murder and testify against Colwell; in exchange, the State recommended she receive a sentence of life with the possibility of parole.
After Colwell was arrested and arraigned, the State informed the district court it would not be seeking the death penalty. However, Colwell offered to plead guilty to all charges if the State changed its position and sought the death penalty. The State agreed and filed a notice of intent to seek death. Colwell also sought to represent himself. After canvassing Colwell on the matter, the court allowed him to represent himself but appointed standby counsel.
Colwell pleaded guilty to murder in the first degree, burglary, and robbery of a victim 65 years of age or older. He requested that the penalty hearing be conducted as soon as possible. During a two-day penalty hearing before a three-judge panel, Colwell did not conduct meaningful cross-examination of the State's witnesses and even attempted to elicit damaging evidence not presented by the prosecution. He made no objections to the State's evidence and refused to introduce any mitigating evidence. During closing argument, the State argued the existence of seven aggravating factors and the nonexistence of any mitigating evidence. Colwell asked that he be put to death. Before returning a sentence, the panel gave Colwell another chance to introduce mitigating evidence; he declined. The panel found four aggravating circumstances, found no mitigating circumstances, and sentenced Colwell to death.
This court affirmed his conviction and sentence.2
In supplemental points and authorities, Colwell claims that District Judge Donald M. Mosley lacked jurisdiction to consider Colwell's habeas petition. He cites NRS 34.820(3), which provides: "If the petitioner has previously filed a petition for relief or for a stay of the execution in the same court, the petition must be assigned to the judge or justice who considered the previous matter." The record indicates that on September 18, 1995, District Judge Gene T. Porter granted Colwell's motion for a stay of execution following Colwell's conviction and pending his direct appeal. Colwell therefore argues that MRS 34.820 required Judge Porter to hear his instant petition.
Colwell failed to raise this claim with the district court, and we need not address it absent a showing of cause for the failure and prejudice.3 On the other hand, subject-matter jurisdiction is not waivable, and a court's lack of such jurisdiction can be raised for the first time on appeal.4 But even assuming that NRS 34.820(3) was violated here, Colwell has cited no authority for concluding that such a violation deprives a district judge of subject-matter jurisdiction, and we reject that proposition. We also conclude that he has not shown cause for failing to raise this claim below or that he was prejudiced.
A petitioner for post-conviction relief cannot rely on conclusory claims for relief but must make specific factual allegations that if true would entitle him to relief.5 The petitioner is not entitled to an evidentiary hearing if the record belies or repels the allegations.6 It is proper to raise claims of ineffective assistance of trial or appellate counsel initially in a timely, first post-conviction petition for a writ of habeas corpus.7 Additionally, the law of a first appeal is the law of the case in all later appeals in which the facts are substantially the same; this doctrine cannot be avoided by more detailed and precisely focused arguments.8
Colwell contends that his trial attorneys were ineffective (before he was allowed to represent himself) because they did not have him psychologically evaluated and did not inform the district court that he suffered from prior serious mental instabilities. To establish ineffective assistance of counsel, a defendant must show that an attorney's representation fell below an objective standard of reasonableness and that the attorney's deficient performance prejudiced the defense.9 To establish prejudice, the defendant must show that but for the attorney's mistakes, there is a reasonable probability that the result of the proceeding would have been different.10 An attorney must make reasonable investigations or a reasonable decision that particular investigations are unnecessary.11
In rejecting this claim, the district court relied on affidavits obtained from Colwell's former attorneys after he filed his habeas petition. This was improper. Such expansion of the record is allowed only if the court decides to conduct an evidentiary hearing.12 We have not considered these affidavits in deciding this issue. Colwell's claim fails because it remains vague and lacks specific factual allegations that would entitle him to relief even if true. Although he implies that he lacked competency to be tried or to represent himself, he refers only to testimony by a psychiatrist called by the State at his penalty hearing. According to Colwell,13 this psychiatrist evaluated him after he was found guilty of kidnapping in Oregon and concluded that he suffered from a "severe personality disorder." He alleges no other facts to support his claim. Colwell does not argue that the personality disorder rendered him incompetent: incompetency to stand trial means that a "person is not of sufficient mentality to be able to understand the nature of the criminal charges against him, and because of that insufficiency, is not able to aid and assist his counsel."14 Colwell has not stated a claim that would warrant relief.
Colwell also challenges the adequacy of the district court's canvass under Faretta v. California15 in allowing him to represent himself because the court did not inquire into his competency. To the extent that this is asserted as an independent claim of trial court error, it is waived because it could have been presented to the trial court or raised on direct appeal.16 However, the Faretta canvass of Colwell is relevant in that it repels his claim that his counsel should have had him psychologically evaluated. The court indeed did not question Colwell regarding his mental competency, and this was reasonable because nothing in the transcript of the canvass suggests that he lacked competency. On the contrary, the record before us shows that Colwell consistently spoke in a lucid, coherent, and appropriate manner.
Colwell further faults his trial attorneys for not filing appropriate pretrial motions. This claim remains conclusory; he does not show that any of the motions would have been meritorious. So again he fails to provide specific allegations and argument that would warrant relief. Moreover, he neglects to reconcile his present call for pretrial action by his attorneys with his prior decision to forgo counsel and represent himself.
Next, Colwell asserts that the three-judge panel that sentenced him did not make an independent and objective analysis of all the relevant evidence to determine if mitigating circumstances existed. He says that this was error under Hollaway v. State.17 Colwell does not state any cause for not raising this alleged error before with the panel or on direct appeal; it is therefore waived.18 Furthermore, Colwell fails to demonstrate prejudice: our concern in Hollaway is not implicated here. In Hollaway, we concluded that "under the circumstances of this case, ... the jury required further instruction regarding its responsibilities in assessing the evidence during the penalty phase."19 Here, no jury was involved, and we presume that the sentencing judges understood and met their responsibilities.20 Colwell has not shown that their finding of no mitigating circumstances was unfounded.
Colwell also states no cause why we should consider his remaining grounds for habeas relief, which were either already decided on direct appeal or could have been raised at trial or on direct appeal. We therefore decline to address the following claims:21 Colwell's rights were violated under the Equal Protection Clause because his female codefendant received only a prison sentence; Nevada's capital punishment system operates in an arbitrary and capricious manner; the death penalty is cruel and unusual punishment; death by lethal injection is cruel and unusual punishment;...
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