Pellegrini v. State
| Decision Date | 15 November 2001 |
| Docket Number | No. 35999.,35999. |
| Parties | David PELLEGRINI, Appellant, v. The State of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Patricia Erickson, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
Franny A. Forsman, Federal Public Defender, and John C. Lambrose and Michael L. Pescetta, Assistant Federal Public Defenders, Las Vegas, as Amicus Curiae.
Before The Court En Banc.
In this appeal, we are asked to decide whether NRS 34.726 and its one-year time bar apply to second or successive petitions for post-conviction relief. Appellant David Pellegrini and amicus curiae, the Federal Public Defender, contend that NRS 34.726 applies just to first petitions and that dismissal for delayed filing of second or successive petitions is governed only by the laches provisions of NRS 34.800. We reject this contention and conclude that NRS 34.726 applies to all post-conviction petitions. We also conclude that Pellegrini's remaining contentions lack merit, and we affirm the district court's order denying his untimely filed and successive post-conviction petition.
Pellegrini was convicted, pursuant to a jury verdict, of the burglary of a Las Vegas 7-Eleven store and the attempted robbery and first-degree murder, both with the use of a deadly weapon, of store clerk Barry Hancock. For the murder, he was sentenced to death.1 Pellegrini then appealed to this court. In rejecting Pellegrini's contentions on appeal, we concluded that overwhelming evidence supported Pellegrini's conviction. We noted the evidence included eyewitness testimony and a videotape showing Pellegrini's activities in the store area before and after Hancock, who was handcuffed and helpless in a back room of the store, was shot in the head at close-range. We also noted that Pellegrini conceded that he shot Hancock, but testified that he fired the gun accidentally when he stumbled.2 Ultimately, we affirmed Pellegrini's conviction and death sentence.3 Remittitur issued on December 13, 1988.
Pellegrini then filed a petition for a writ of habeas corpus in federal district court. The federal court stayed its consideration of Pellegrini's petition pending exhaustion of his claims in state courts.
In December 1989, Pellegrini filed, pursuant to former NRS 177.315.385, a petition for post-conviction relief in state district court. In December 1990, he filed a supplemental petition. Pellegrini contended that he was deprived of the right to a fair trial and also raised claims of ineffective assistance of trial counsel. The district court agreed to conduct an evidentiary hearing limited to Pellegrini's claim that counsel was ineffective in persuading Pellegrini to testify falsely at trial.
In lieu of testifying at the evidentiary hearing, Pellegrini submitted an affidavit, wherein he stated that due to his intoxicated condition at the time of the crimes, he "had no independent clear recollection of what actually happened when Barry Hancock was shot" and could only partially recall what transpired inside the store. He stated that when he had informed trial counsel of his lack of recall, counsel told him to testify that the gun was cocked and "went off" when he stumbled. The district court heard testimony from trial counsel and rejected Pellegrini's claim that counsel had convinced him to testify falsely. On November 5, 1991, the district court entered its order denying relief on all claims raised in the 1989 petition.
On appeal to this court, we rejected Pellegrini's challenges to the district court's order denying the petition. We concluded that the district court's finding that counsel had not persuaded Pellegrini to testify falsely was supported by substantial evidence. We also concluded that the district court did not err in denying the remaining claims of ineffective assistance of counsel without an evidentiary hearing because these "were either `naked' claims for relief or were repelled by the record." We finally concluded that the denial without an evidentiary hearing of Pellegrini's claims relating to deprivation of a fair trial was proper because these claims were waived when Pellegrini failed to raise them at trial or on direct appeal. We ordered Pellegrini's appeal dismissed on May 28, 1993.4
Pellegrini again petitioned for a writ of habeas corpus in federal district court. On March 23, 1999, the federal district court dismissed Pellegrini's federal petition to allow him to exhaust his claims in state courts.
On April 12, 1999, more than ten years after issuance of remittitur on direct appeal and nearly six years after this court dismissed the appeal from his first post-conviction petition, Pellegrini filed a post-conviction petition for a writ of habeas corpus in state district court. In this petition, Pellegrini raised numerous claims of trial court error and ineffective assistance of trial, appellate and post-conviction counsel. Among these were claims that counsel had failed to investigate and present evidence and argument that Pellegrini was not guilty by reason of insanity and was not deserving of a death sentence because he suffered from Multiple Personality Disorder ("MPD") at the time of the crime. In support of the MPD-related claims, he attached a declaration by psychologist Nell Riley, Ph.D. As cause for failing to present his claims earlier, Pellegrini alleged ineffective assistance of trial, appellate and post-conviction counsel.
The State opposed the second petition and argued that it was procedurally barred as untimely under NRS 34.726. The State also argued that appellant's claim that his first post-conviction counsel was ineffective did not warrant relief, and the remainder of his claims were procedurally barred under the waiver provisions of NRS 34.810(1)(b), the successive petition provisions of NRS 34.810(2), and/or under the law of the case doctrine.
In his reply, Pellegrini argued that the time bar at NRS 34.726 did not apply to successive petitions for post-conviction relief. He further argued that application of the procedural bars provided in NRS 34.810 would violate his right to due process because this court has inconsistently applied those bars in reviewing appeals from other post-conviction petitions. Finally, he argued that his failure to comply with any procedural bars should be excused because he suffers from MPD and was incompetent and insane at the time of the crime, throughout trial and until the filing of the second petition. Pellegrini admitted that he had been evaluated by three mental health experts prior to trial, but argued that the results of these evaluations were suspect.
In its surreply, the State asserted the procedural bar for laches at NRS 34.800 and argued that the law of the case doctrine precluded consideration of Pellegrini's claims regarding his mental state as a basis to overcome or avoid the procedural bars.
The district court heard argument from counsel and on March 20, 2000, denied the petition. Without addressing the laches bar, the court concluded that all of Pellegrini's claims were or could have been brought within one year of the effective date of NRS 34.726 and/or raised in prior proceedings, and thus Pellegrini's claims were procedurally barred pursuant to NRS 34.726 and NRS 34.810. Pellegrini timely appealed.
Application of procedural bars to Pellegrini's claims
Pellegrini challenges the district court's determination that his claims were barred under the provisions of NRS 34.726 and NRS 34.810.5 He does not dispute that, absent a demonstration of good cause and actual prejudice, his claims are barred under a plain reading of these statutes. But, relying primarily on legislative history, Pellegrini and amicus together argue that NRS 34.726 cannot be properly applied to successive petitions. Pellegrini also argues that this court is barred from applying NRS 34.810 to his claims due to what he characterizes as our prior "inconsistent" application of procedural bars. He additionally argues that, even if these statutes may be applied to his successive petition, he was entitled to an evidentiary hearing on his allegations that his noncompliance with the statutory filing requirements should be excused because of his incompetence and insanity. These contentions lack merit.
NRS 34.726 provides for dismissal of habeas petitions based on delay in filing. It states, in part:
NRS 34.810 provides for dismissal based on waiver and abusive filing of successive petitions. It states, in relevant part:
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