Lisle v. State

• Decision Date: 25 June 2015
• Docket Number: No. 55173.,55173.
• Citation: 131 Nev. Adv. Op. 39,351 P.3d 725
• Parties: Kevin James LISLE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

351 P.3d 725

131 Nev. Adv. Op. 39

Kevin James LISLE, Appellant

v.The STATE of Nevada, Respondent.

No. 55173.

Supreme Court of Nevada.

June 25, 2015.

Rehearing Denied Oct. 22, 2015.

Rene L. Valladares, Federal Public Defender, and Michael Pescetta, David Anthony, and Albert Sieber, Assistant Federal Public Defenders, Las Vegas, for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.

OPINION

By the Court, PARRAGUIRRE, J.:

A jury found appellant Kevin James Lisle guilty of first-degree murder with the use of a deadly weapon in the drive-by shooting of Kip Logan and sentenced him to death. Under Nevada law, Lisle may collaterally challenge his conviction and sentence in a post-conviction petition for a writ of habeas corpus. There are two procedural bars to filing a petition that are relevant here: the petition must be filed within a certain period of time unless the petitioner shows cause for his delay; and the petitioner is limited to one petition absent a demonstration of good cause and actual prejudice. Where a petitioner cannot demonstrate cause and prejudice, we have recognized an exception to these bars against untimely and successive petitions: the petitioner must show that the failure to consider the petition on its merits would result in a fundamental miscarriage of justice, meaning the imprisonment of a person who is actually innocent of the offense for which he was convicted or the execution of a person who is actually innocent of the death penalty.

Lisle filed a petition that was untimely and successive. The district court dismissed the petition on the ground that it was procedurally barred. In this appeal from the district court's order, we must determine whether a petitioner can demonstrate that he is actually innocent of the death penalty by presenting new evidence of mitigating circumstances. We hold that he cannot. In the context of a challenge to a death sentence, the actual-innocence exception to the procedural bars is focused on the elements of first-degree murder and the aggravating circumstances, not mitigating circumstances, because it is the former that determine death eligibility. Because we conclude that Lisle's claims do not warrant relief, we affirm the district court's order dismissing his petition.

FACTS AND PROCEDURAL HISTORY

The facts underlying Lisle's conviction are set forth in detail in this court's 1997 opinion affirming Lisle's conviction and sentence. Lisle v. State, 113 Nev. 540, 937 P.2d 473 (1997), decision clarified on denial of reh'g, 114 Nev. 221, 954 P.2d 744 (1998). In this opinion, we recount only those facts necessary to an understanding of the issues presented.

On the evening of October 22, 1994, John Melcher was driving on a Las Vegas freeway and pulled his van alongside a Mustang driven by Kip Logan. Lisle, the front passenger in Melcher's van, shot and killed Logan. Adam Evans¹ was in the vans back seat, and he and Melcher testified against Lisle at trial. The jury found Lisle guilty of first-degree murder with the use of a deadly weapon, found a single aggravating circumstance (the murder was committed by a person who knowingly created a great risk of death to more than one person), found “other mitigating circumstances,” and concluded that the mitigating circumstances did not outweigh the aggravating circumstance. The jury sentenced Lisle to death. This court affirmed the judgment and sentence, and the remittitur issued on November 16, 1998.

Lisle then filed a timely post-conviction petition for a writ of habeas corpus, and the district court appointed counsel to supplement and litigate the petition. The district court denied the petition, and this court affirmed the district court's order. Lisle v. State, Docket No. 36949, 118 Nev. 1119, 106 P.3d 1236 (Order of Affirmance, August 21, 2002). The remittitur from that appeal issued on September 17, 2002. Lisle filed his second post-conviction habeas petition on August 25, 2008, claiming that he received ineffective assistance of trial, appellate, and post-conviction counsel. The district court dismissed the petition as procedurally barred, and this appeal followed.

DISCUSSION

Lisle's petition was procedurally barred. The petition was untimely because it was filed nearly 10 years after the remittitur issued from the appeal of his judgment of conviction. See NRS 34.726(1). The petition was also successive where it raised claims that could have been brought in earlier proceedings, and an abuse of the writ where it raised claims new and different from those in his first post-conviction habeas petition. See NRS 34.810(1)(b)(2) ; NRS 34.810(2). To excuse the procedural bars so that his petition would be considered on the merits, Lisle raised several claims alleging good cause and prejudice. See NRS 34.726(1) ; NRS 34.810(1)(b), (3) ; see also State v. Huebler, ––– Nev. ––––, ––––, 275 P.3d 91, 94–95 (2012) (explaining that “good cause for delay” under NRS 34.726(1) requires that the delay is not the petitioner's fault and that the petitioner will be unduly prejudiced), cert. denied, 568 U.S. ––––, 133 S.Ct. 988, 184 L.Ed.2d 767 (2013). He also argued that, in the absence of good cause, he was actually innocent of the crime and of the death penalty such that the failure to consider the merits of his petition would result in a fundamental miscarriage of justice. See Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). Because we conclude that Lisle failed to demonstrate either good cause to excuse the procedural bars or that he was actually innocent, we do not reach the merits of his claims challenging his conviction and sentence.

Lisle failed to demonstrate good cause and prejudice

Lisle argues that the district court erred in dismissing his petition as procedurally barred because he established good cause and prejudice by showing that the State withheld impeachment evidence regarding witnesses Melcher, Evans, and Larry Prince in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We have acknowledged that a Brady violation may provide good cause and prejudice to excuse the procedural bars to a post-conviction habeas petition. See Mazzan v. Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000). A successful Brady claim has three components: “the evidence at issue is favorable to the accused; the evidence was withheld by the state, either intentionally or inadvertently; and prejudice ensued, i.e., the evidence was material.” Id. The second and third components of a Brady violation parallel the good cause and prejudice showings required to excuse the procedural bars to an untimely and/or successive post-conviction habeas petition. State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003). “[I]n other words, proving that the State withheld the evidence generally establishes cause, and proving that the withheld evidence was material establishes prejudice.” Id. But, “a Brady claim still must be raised within a reasonable time after the withheld evidence was disclosed to or discovered by the defense.” Huebler, ––– Nev. at ––––n. 3, 275 P.3d at 95 n. 3 ; see also Hathaway v. State, 119 Nev. 248, 254–55, 71 P.3d 503, 507–08 (2003) (holding that good cause to excuse an untimely appeal-deprivation claim must be filed within a reasonable time of learning that the appeal had not been filed).

Lisle has the burden of demonstrating the elements of the Brady claim as well as its timeliness. Bennett, 119 Nev. at 599, 81 P.3d at 8 ; Mazzan, 116 Nev. at 67, 993 P.2d at 37. He did not meet these burdens. He failed to demonstrate that his Brady claims were raised within a reasonable amount of time after discovery of the withheld evidence. Lisle admitted that he received some of the evidence regarding Melcher in 1995, 13 years before he filed the instant petition.² Although Lisle alleged that he was forced to seek discovery in federal court to obtain records from the Clark County District Attorney's Office and the Las Vegas Metropolitan Police Department, that such efforts began shortly after December 2003 and continued until May 2007, and that as a result, no less than four orders were issued in his favor, he did not specify when he received the remaining evidence regarding Melcher, Evans, or Prince or that he received it as a result of the federal discovery litigation. Accordingly, Lisle did not specify facts that demonstrated that he raised the Brady claim within a reasonable time after discovering the withheld evidence.

Lisle's other good-cause claims were similarly unavailing. Like the Brady claim, Lisle's good-cause claim based on the alleged ineffective assistance of first post-conviction counsel, see Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997) ; McKague v. Warden, 112 Nev. 159, 165 n. 5, 912 P.2d 255, 258 n. 5 (1996), was untimely because it was not asserted within a reasonable time after it became available: the petition was filed nearly six years after the remittitur issued in the appeal from the denial of his first post-conviction habeas petition, see Hathaway, 119 Nev. at 252–53, 71 P.3d at 506 ; Pellegrini, 117 Nev. at 869–70, 34 P.3d at 526 (holding that the time bar at NRS 34.726 applies to successive petitions); see also State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 232, 112 P.3d 1070, 1075 (2005) (holding that a petitioner “must plead and prove specific facts that demonstrate good cause” to excuse an abusive petition). Lisle's remaining good-cause claims—that Polk v. Sandoval, 503 F.3d 903 (9th Cir.2007), excused any procedural bars to his claim challenging the premeditation jury instruction; that counsel, not Lisle, caused any delays; and that this court's alleged inconsistent application of the procedural bars and Lisle's health problems excused all of the procedural bars—also lacked merit. See Nika v. State, 124 Nev....