McConnell v. State

• Decision Date: 23 July 2009
• Docket Number: No. 49722.,49722.
• Citation: 212 P.3d 307
• Parties: Robert Lee McCONNELL, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

212 P.3d 307

Robert Lee McCONNELL, Appellant, v. The STATE of Nevada, Respondent.

No. 49722.

Supreme Court of Nevada.

July 23, 2009.

As Corrected July 24, 2009.

Scott W. Edwards, Reno; Law Office of Thomas L. Quails, Ltd., and Thomas L. Quails, Reno, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

Before the Court En Banc.

OPINION

PER CURIAM.

The primary issue in this appeal is whether the constitutionality of Nevada's lethal injection protocol may be challenged in a post-conviction petition for a writ of habeas corpus. We hold that the claim is not cognizable in a post-conviction petition for a writ of habeas corpus under NRS Chapter 34 because it involves a challenge to the manner in which the death sentence will be carried out rather than the validity of the judgment of conviction or sentence.

FACTS AND PROCEDURAL HISTORY

Appellant Robert Lee McConnell pleaded guilty to first-degree murder with the use of a deadly weapon, sexual assault, and first-degree kidnapping. In doing so, he admitted that he shot and killed his ex-girlfriend's fiancé, Brian Pierce, and threatened his ex-girlfriend, April Robinson, with a knife, handcuffed her, sexually assaulted her, and kidnapped her, forcing her to drive to California. In a subsequent penalty hearing, the jury found three aggravators—the murder was committed during the course of a burglary and a robbery and involved mutilation— and determined that the aggravators were not outweighed by any mitigating circumstances. The jury returned a death sentence for the first-degree murder charge. On direct appeal, this court held that an aggravator cannot be based on the same felony used to establish felony murder but concluded that McConnell was not entitled to relief because he clearly pleaded guilty to willful, deliberate, and premeditated murder rather than felony murder. McConnell v. State, 120 Nev. 1043, 1069, 102 P.3d 606, 624 (2004), rehearing denied, 121 Nev. 25, 107 P.3d 1287 (2005).

McConnell then filed a timely post-conviction petition for a writ of habeas corpus in the district court alleging several claims for relief. The district court dismissed the petition without conducting an evidentiary hearing. McConnell challenges the district court's decision to deny his petition without conducting an evidentiary hearing on his claims.

DISCUSSION

This court has held that a post-conviction habeas petitioner "is entitled to a post-conviction evidentiary hearing when he asserts claims supported by specific factual allegations not belied by the record that, if true, would entitle him to relief." Mann v. State, 118 Nev. 351, 353, 46 P.3d 1228, 1229 (2002); see Hargrove v. State, 100 Nev. 498, 503, 686 P.2d 222, 225 (1984). For the reasons below, we conclude that the district court did not err by dismissing McConnell's post-conviction petition without conducting an evidentiary hearing.

Claim that Nevada's lethal injection protocol is unconstitutional

Relying on the United States Supreme Court's recent decision in Baze v. Rees, McConnell argues that Nevada's lethal injection protocol violates the Eighth Amendment to the United States Constitution because it does not sufficiently safeguard against a "`substantial risk of serious harm.'" 553 U.S. ___, ___, 128 S.Ct. 1520, 1531, 170 L.Ed.2d 420 (2008) (quoting Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). In this, McConnell draws distinctions between the Kentucky protocol upheld in Baze and the protocol used in Nevada. The district court, however, rejected the claim without an evidentiary hearing after concluding that a post-conviction petition for a writ of habeas corpus is not the proper forum to raise a challenge to Nevada's lethal injection protocol because "by law this type of petition is used solely to attack a judgment or sentence."¹

Whether a claim challenging the constitutionality of Nevada's lethal injection protocol is cognizable in a post-conviction habeas petition is an issue of first impression for this court. Because a post-conviction petition for a writ of habeas corpus filed pursuant to NRS Chapter 34 is a creature of statute, see Hill v. Warden, 96 Nev. 38, 40, 604 P.2d 807, 808 (1980), our resolution of the issue involves statutory interpretation. When interpreting a statute, this court's goal is to determine the Legislature's intent in enacting the statute. Moore v. State, 117 Nev. 659, 661, 27 P.3d 447, 449 (2001). Because "we presume that the statute's language reflects the Legislature's intent," we must focus on the statute's plain language. Id.

As is evident from Nevada's statutory scheme, a post-conviction petition for a writ of habeas corpus is limited in scope. Under NRS 34.720, a post-conviction petition for a writ of habeas corpus is available to address two types of claims: (1) "[r]equests [for] relief from a judgment of conviction or sentence in a criminal case" and (2) "[c]hallenges [to] the computation of time that [the petitioner] has served pursuant to a judgment of conviction." As a challenge to the lethal injection protocol does not implicate the computation of time served, only the first category is at issue. If a claim falls within that category, meaning that it seeks relief from a conviction or sentence, then a post-conviction petition for a writ of habeas corpus is the exclusive remedy.² NRS 34.724(2)(b) (providing that a post-conviction petition for a writ of habeas corpus "[c]omprehends and takes the place of all other common-law, statutory or other remedies which have been available for challenging the validity of the conviction or sentence, and must be used exclusively in place of them").

This court has addressed the scope of post-conviction habeas relief in other contexts that provide some guidance. For example, in Bowen v. Warden, this court explained that it has "repeatedly held that a petition for writ of habeas corpus may challenge the validity of current confinement, but not the conditions thereof." 100 Nev. 489, 490, 686 P.2d 250, 250 (1984). Accordingly, we have previously determined that challenges to the conditions of confinement, such as placement in punitive segregation, are not cognizable in a post-conviction habeas petition. Id. Consistent with NRS 34.720, the import of Bowen is that a claim that is cognizable in a post-conviction habeas petition must challenge the validity of the conviction or sentence. The claim at issue in this case (the constitutionality of the lethal injection protocol) clearly does not involve a challenge to the validity of the conviction. Therefore, we focus on whether the claim challenges the validity of the sentence.

The United States Supreme Court has considered a similar question in holding that a challenge to a lethal injection protocol that is not statutorily mandated may be filed in a federal action under 42 U.S.C. § 1983. In Hill v. McDonough, 547 U.S. 573, 579, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), the Court reasoned that a protocol challenge is more akin to a challenge to the conditions of confinement, which may be brought under § 1983, than a challenge to the lawfulness of confinement or its duration, which must be brought in a habeas petition under 28 U.S.C. § 2254. The Court explained that the petitioner's challenge to the lethal injection protocol would "leave the State free to use an alternative lethal injection procedure" because state law did not require use of the challenged procedure. Id. at 580-81, 126 S.Ct. 2096. As a result, the Court concluded that the claim could proceed under § 1983 because "granting relief would not imply the unlawfulness of the lethal injection sentence." Id. at 580, 126 S.Ct. 2096. The Hill Court, however, did not directly address whether the same challenge would also be cognizable in a federal habeas petition.

In answering that question for purposes of a state habeas petition under NRS Chapter 34, we conclude that a challenge to the lethal injection protocol in Nevada does not implicate the validity of a death sentence because it does not challenge the death sentence itself but seeks to invalidate a particular procedure for carrying out the sentence. In Nevada, the method of execution—"injection of a lethal drug"—is mandated by statute. NRS 176.355(1). But the manner in which the lethal injection is carried out—the lethal injection protocol—is left by statute to the Director of the Department of Corrections. NRS 176.355(2)(b) (providing that the Director shall "[s]elect the drug or combination of drugs to be used for the execution after consulting with the State Health Officer"). Because the lethal injection protocol is not mandated by statute, granting relief on a claim that a specific protocol is unconstitutional would not implicate the legal validity of the death sentence itself. Rather, while granting relief on such a claim would preclude the Director from using the particular protocol found to be unconstitutional, the Director would be free to use some other protocol to carry out the death sentence.³ Because McConnell's challenge to the lethal injection protocol would not preclude his execution under current law using another protocol, we conclude that the challenge to the lethal injection protocol does not implicate the validity of the death sentence and therefore falls outside the scope of a post-conviction petition for a writ of habeas corpus.⁴ Accord Ex parte Alba, 256 S.W.3d 682, 685-86 (Tex.Crim.App.2008) (reasoning that because the specific mixture used for lethal injection is not mandated by statute in Texas and any challenge to the current protocol would not eliminate the petitioner's death sentence, challenge to lethal injection protocol was not cognizable in state habeas petition).⁵ Accordingly, the district court did not err in rejecting this claim without conducting an evidentiary...