State v. Dist. Ct.

• Citation: 121 Nev. 225,112 P.3d 1070
• Decision Date: 09 June 2005
• Docket Number: No. 44108.,44108.
• Parties: The STATE of Nevada, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF CLARK, and the Honorable Michael Cherry, District Judge, Respondents, and David Robert Riker, Real Party in Interest.
• Court: Supreme Court of Nevada

112 P.3d 1070

121 Nev. 225

The STATE of Nevada, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF CLARK, and the Honorable Michael Cherry, District Judge, Respondents, and David Robert Riker, Real Party in Interest.

No. 44108.

Supreme Court of Nevada.

June 9, 2005.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Petitioner.

Franny A. Forsman, Federal Public Defender, and Michael L. Pescetta, Assistant Federal Public Defender, Las Vegas, for Real Party in Interest.

Before the Court en Banc.¹

OPINION

PER CURIAM.

This is an original petition by the State for a writ of prohibition or mandamus. The underlying proceeding in the district court involves an untimely and successive post-conviction habeas petition filed by David Robert Riker, the real party in interest here. The State contends that the claims raised in Riker's petition are procedurally barred and the district court abused its discretion or exceeded its jurisdiction in ordering an evidentiary hearing on the merits of the claims. The State seeks a writ ordering the district court to vacate its order and to dismiss Riker's habeas petition as procedurally barred.

For the last year and a half this court has been burdened with an increasing number of petitions by the State seeking our extraordinary intervention in post-conviction habeas proceedings. These petitions ask this court to compel district courts to impose procedural bars against post-conviction habeas claims. We have granted relief in some of these cases, and we determine that some relief is appropriate here. However, we emphasize that mandamus or prohibition is an extraordinary remedy, not a means for routine correction of error, and accordingly set forth some guidance on the narrow circumstances under which that remedy may be appropriate regarding post-conviction procedural bars. We also address some claims that Riker makes in attacking this court's general application of post-conviction procedural default rules.

FACTS

In 1992, Riker and Richard Allan Walker were charged with murder and robbery, both with the use of a deadly weapon, in the stabbing death of Kevin Marble in Las Vegas.²

Riker initially entered a plea of not guilty. In November 1992, Riker told his attorney that he wanted to plead guilty to both charges. Four doctors of psychology or psychiatry evaluated Riker to determine his competency. All concluded that he was able to assist his counsel, though one believed that Riker's depression rendered him incapable of rationally entering a guilty plea. In August 1993, the district court thoroughly canvassed Riker regarding his desire to plead guilty and then accepted Riker's guilty plea. In September 1993, Riker underwent another psychological evaluation. The examining doctor concluded that Riker wanted to commit suicide but was competent to aid and consult with his attorney. Later that month, Riker moved to withdraw his guilty plea. The district court denied the motion.

In February 1994, a three-judge panel conducted a penalty hearing. The panel found one aggravating circumstance: the murder occurred during the commission of a robbery, and Riker killed the victim. The panel found two mitigating circumstances: Riker was only 20 at the time of the murder, and he had a history of mental disturbance. The three judges decided that the aggravating circumstance outweighed the mitigating circumstances and returned a death sentence. This court affirmed Riker's judgment of conviction and sentence in November 1995.³

In the meantime, Walker went to trial, and in June 1994 a jury convicted him of first-degree murder with use of a deadly weapon and robbery with use of a deadly weapon. He received two consecutive sentences of life without the possibility of parole.⁴

Riker filed a post-conviction petition for a writ of habeas corpus in November 1996. The district court filed an order denying the petition in January 1998, and this court dismissed Riker's appeal in December 1998. Riker filed a habeas petition with the federal district court in October 1999. That court stayed the proceedings to allow Riker to exhaust all of his claims in state court.

Riker filed a second post-conviction habeas petition in state court in March 2003, alleging 23 grounds for relief. The State moved to dismiss the petition, arguing that it was barred procedurally. Riker filed an opposition to the State's motion with over 800 pages of exhibits in support. He contended that the procedural rules could not be applied against him "due to the discretionary and arbitrary application of those rules." In January 2004, Riker filed a motion for leave to conduct discovery accompanied by nearly 1400 pages of exhibits. The exhibits included 47 subpoenas, 55 letters requesting discovery, and 65 other documents. The State filed an opposition to the discovery motion.

In June 2004, Riker filed an amended habeas petition of more than 220 pages, raising 30 more claims for relief. Accompanying the amended petition were more than 1000 pages of exhibits. In addition, more than two dozen exhibits were filed under seal. The same day, Riker also filed a motion seeking a protective order which would keep under seal his responses to discovery requests by the State. He wanted the order to apply to materials allegedly protected by the attorney-client privilege or work-product doctrine and to stay in effect as long as his murder trial in California was pending.⁵ The State filed an opposition to Riker's motion and moved to strike his amended petition.

The district court held a hearing on the various pending matters in August 2004 and decided to grant an evidentiary hearing:

Well I've read everything and to me, I'm going to certainly allow an evidentiary hearing. I think it's only right at this stage as the — now the equivalent of being the trial judge now on this case, it's back to me. I want to make as complete a record as possible in the District Court. Reason being, is I know where this is going to go. It's a death penalty case. It's going to go to the Supreme Court. I don't want them to remand it to me if they affirm — if I deny the post-conviction relief after all the hearing and everything and then it's affirmed by the Supreme Court. It's going to go into Federal Court. I don't want to see it again. I mean that's why I want — maybe it's selfish on my part, but I want to get as much done here so that I'm through with it.

And the only way to do that is to allow the Federal Public Defender to pursue the post-conviction relief on the basis of ineffective assistance of counsel.

Later in the hearing the following exchange occurred among counsel for the State, the district court, and Riker's counsel.

Mr. Owens: On the ordering of an evidentiary hearing, you're aware that on the first Petition for Post-Conviction an evidentiary hearing was denied and that was upheld on appeal. It seems to me we're taking a step back. If it was denied earlier, why would we now want to grant some several years later —

The Court: Because it's a different judge. I view the death penalty case much differently than some of my other jurists. I know that's just the chance you guys take when you come to this department. I'm the one who had a guy get death two weeks ago. And I know what it's like. So I mean I sentenced a guy to death and he got death.

Mr. Pescetta: I would say, your Honor, you know rather than simply rely on that, that there is an enormous amount of material outside the record on appeal that is before this court now that wasn't in the first Habeas Corpus Petition and so whatever record the Nevada Supreme Court upheld the denial of an evidentiary hearing on in the first proceeding, the facts are wholly different at this point in the record before your Honor.

The Court: Well not only that, I — just my own experience in this, with two people, two of my former clients on death row. . . . I know how important it is that a proper record be made in the trial court. And that's what I'm trying to do. I just want to make a proper record. If I've expanded it a little bit, I don't think it's going to hurt because when we go into Federal Court on this, and you guys are going to go into Federal Court, there's no doubt, and Mr. Pescetta's not going to let this stop at the Supreme Court. And even if I deny it and the Supreme Court affirms my denial, it's going to go into the Federal District Court. And I want to make sure that I'm finished with it. That I've exhausted... whatever State remedies there are and that there's a full record. So there's no remand back to Judge Cherry to conduct further evidentiary hearings. So I'll give you that opportunity.

In a written order entered on September 29, 2004, the court denied the State's motions to dismiss the habeas petition and to strike the amended petition, granted Riker's motions for a protective order and for leave to conduct discovery, and granted an evidentiary hearing on Riker's claims of ineffective assistance of post-conviction counsel.

DISCUSSION

Post-conviction procedural default rules and extraordinary intervention by this court

The State contends that the district court abused its discretion or acted in excess of its jurisdiction in three ways: in ordering an evidentiary hearing to review issues on the merits even though numerous procedural defaults exist and no good cause has been shown to excuse those defaults; in allowing Riker to conduct discovery to explore issues that should have been dismissed; and in granting Riker a protective order allowing him to keep claims for relief and exhibits under seal for an indefinite period of time. The State asks this court to issue a writ of prohibition or mandamus to the district court ordering that court to vacate its order of September 29, 2004, and dismiss Riker's second post-conviction habeas petition as...