Kirksey v. Warden, 49140.

• Citation: 281 P.3d 1192
• Decision Date: 21 August 2009
• Docket Number: No. 49140.,49140.
• Parties: Jimmy Todd KIRKSEY, Appellant, v. WARDEN, ELY STATE PRISON, E.K. McDaniel, and the State of Nevada, Office of the Attorney General, Catherine Cortez Masto, Respondents.
• Court: Supreme Court of Nevada

281 P.3d 1192

Jimmy Todd KIRKSEY, Appellant,

v.WARDEN, ELY STATE PRISON, E.K. McDaniel, and the State of Nevada, Office of the Attorney General, Catherine Cortez Masto, Respondents.

No. 49140.

Supreme Court of Nevada.

Aug. 21, 2009.

Federal Public Defender/Las Vegas

Attorney General Catherine Cortez Masto/Carson City

Clark County District Attorney David J. Roger

ORDER OF AFFIRMANCE

This is an appeal from an order of the district court denying appellant's post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.

On January 12, 1990, the district court, pursuant to a guilty plea, convicted appellant of first-degree murder. A three-judge panel recommended the death penalty, and the district court imposed the death penalty. On appeal, this court concluded that two of the aggravating circumstances found by the three-judge panel should not have been considered but affirmed the conviction and sentence. Kirksey v. State, 107 Nev. 499, 814 P.2d 1008 (1991). The remittitur issued on December 18, 1991.

On February 28, 1992, appellant, with the aid of counsel, filed a petition for post-conviction relief pursuant to former NRS chapter 177 in the district court. The State opposed the petition. An evidentiary hearing was conducted on February 1, 1993. On April 14, 1993, the district court denied the petition. This court affirmed the order of the district court on appeal. Kirksey v. State, 112 Nev. 980, 923 P.2d 1102 (1996).

After seeking relief in federal court, on March 6, 2003, appellant, with the aid of counsel, filed a post-conviction petition for a writ of habeas corpus in the district court. The State opposed the petition as procedurally barred and specifically pleaded laches. The district court ordered the State to respond to the claims on the merits and set the matter for an evidentiary hearing.

The State sought extraordinary relief with this court by way of a petition for a writ of prohibition or mandamus challenging the order of the district court granting the evidentiary hearing. This court granted the petition in part and denied the petition in part. State v. District Court (Kirksey), Docket No. 43559 (Order Granting Petition in Part and Denying in Part, December 2, 2004). In granting the petition in part, this court determined that a full hearing on appellant's numerous claims was not warranted due to the procedural bars. In denying the petition in part, this court determined that an evidentiary hearing was necessary to consider a good cause claim relating to a competency report filed in the trial proceedings in 1989. In his petition, appellant alleged that the trial judge had drafted a second report concerning appellant's competency for Dr. Franklin Master's signature and that he had only learned of the trial judge's participation in August of 2000. This court concluded a limited evidentiary hearing was warranted to determine “(1) whether the new information was discovered and presented in a reasonably timely manner; (2) if it was, whether the judge did in fact draft the report; and (3) if he did, whether Kirksey can establish any resulting prejudice.” The order stated that “[t]he most relevant question appears to be whether an impediment external to the defense prevented the information from being discovered and presented earlier.” This court further concluded that an evidentiary hearing was warranted concerning appellant's claim that he was mentally retarded, which would require that the death sentence be vacated. See Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Accordingly, a limited evidentiary hearing was to be conducted to ascertain whether appellant could establish good cause and prejudice sufficient to overcome the procedural bars concerning the drafting of the second report and on the issue of appellant's mental retardation.

On February 6, 2006 through February 8, 2006, a limited evidentiary hearing was conducted concerning those claims. The district court determined that appellant was mentally retarded and ordered a new sentencing hearing. The district court also concluded that appellant failed to demonstrate good cause and prejudice to overcome the procedural bars. Thus, on March 2, 2007, the district court granted the petition as to the claim of mental retardation, but denied the remainder of the claims in the petition as procedurally barred. This appeal follows.

In his petition below, appellant claimed: (1) the trial court erred in failing to hold a competency hearing; (2) trial counsel was ineffective ¹; (3) he was incompetent to enter his guilty plea; (4) his plea was unknowing and unintelligent; (5) he was incompetent to be sentenced; (6) he was not before an impartial tribunal due to judicial bias; (7) the State was required to protect individuals from harming themselves, including those who would commit suicide by abandoning defenses to charges of capital murder; (8) his appellate counsel had a conflict of interest; (9) his appellate counsel was ineffective; (10) the Nevada Supreme Court did not provide a fair and adequate appellate review; (11) imposition of the death penalty by a three-judge panel was unconstitutional; (12) unreliable evidence was improperly admitted at appellant's sentencing hearing; (13) admission at the sentencing hearing of facts from previous charges without a certified copy of a judgment of conviction constituted a relitigation of those charges and violated double jeopardy; (14) appellant's death sentence was the result of purposeful discrimination based on race; (15) the grand jury indictment was invalid because members of appellant's race were systematically excluded from the grand jury; (16) the State failed to prove the sole aggravating circumstance beyond a reasonable doubt; (17) the State failed to disclose exculpatory and impeachment evidence; (18) the State committed prosecutorial misconduct; (19) the statutorily mandated reasonable doubt standard improperly minimized the State's burden of proof and improperly infected appellant's guilty plea; (20) Nevada's definitions of “premeditation and deliberation,” “implied malice,” and “reasonable doubt” are unconstitutional; (21) the charging document failed to inform appellant of the acts he was alleged to have committed and the district court failed to advise appellant of those acts in the plea canvass; (22) there was an absence of sufficient evidence to support a factual basis for the necessary element of criminal agency for culpability for the offense; (23) critical stages of the proceedings were conducted outside of appellant's presence; (24) the district court erred by failing to record critical proceedings; (25) the district court erred by closing critical proceedings from public scrutiny; (26) the district court unfairly limited the issues to be raised in the 1992 post-conviction proceedings and the ability of counsel in 1992 to litigate issues in post-conviction; (27) his conviction and sentence were invalid due to cumulative errors in the admission of evidence and instructions, gross misconduct by state officials and witnesses, and the systematic deprivation of appellant's right to effective assistance of counsel; (28) execution of the mentally retarded constitutes cruel and unusual punishment; (29) the death penalty is cruel and unusual punishment; (30) Nevada's capital punishment system operates in an arbitrary and capricious manner; (31) execution by lethal injection is cruel and unusual punishment; (32) appellant was not competent to be executed; (33) appellant's sentence violates the International Covenant on Civil and Political Rights; (34) appellant's conviction and sentence were invalid because the trial and appeal were presided over by judicial officers whose tenure in office was dependent on popular elections; (35) appellant's death sentence is invalid because of the risk that innocent persons will be executed; (36) law enforcement officials conducted an interrogation of appellant without obtaining a voluntary, knowing, and intelligent waiver of his rights; (37) the reduced standard of reliability for admission of evidence at the penalty phase of a capital trial violates guarantees of a fair trial, due process, and equal protection; (38) the jury instructions for the weighing of factors for death eligibility did not require proof beyond a reasonable doubt; and (39) he received ineffective assistance of his first post-conviction counsel.² In his petition, appellant stated that claims 1, 4–5, 27 and 36 were raised under ineffective assistance of counsel, but appellant did not specify if the claims were raised as ineffective assistance of trial, appellate, or post-conviction counsel.

In his briefs before this court, appellant argues that the district court erred in denying claims 1–9, 17–18, 20, 23–24, 26–27, and 36 as procedurally barred. In his briefs before this court, appellant does not discuss, argue or provide good cause to excuse the procedural defects for raising claims 10, 15, 19, 21–22, 25, 34, and 39 in the procedurally defective petition. Therefore we conclude that appellant has abandoned those claims and we will not consider them further in this appeal.³

Appellant filed his petition more than 12 years after this court issued the remittitur from his direct appeal. Thus, appellant's petition was untimely filed. SeeNRS 34.726(1). Moreover, appellant's petition was successive because he had previously filed a petition for postconviction relief in which he raised claims 2, 6, 9, 17, 23, and 26. SeeNRS 34.810(l)(b); NRS 34.810(2). Further, appellant's petition constituted an abuse of the writ as claims 1, 3–5, 7–8, 18, 20, 24, 27, and 36 were new and different from those claims raised in his previous post-conviction petition. SeeNRS 34.810(2). Appellant's petition was procedurally barred absent a demonstration of good cause and actual prejudice. SeeNRS 34.726(1); NRS 34.810(3)....