Thomas v. State

• Decision Date: 26 May 2022
• Docket Number: 77345
• Citation: 510 P.3d 754
• Parties: Marlo THOMAS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

510 P.3d 754

Marlo THOMAS, Appellant,

v.The STATE of Nevada, Respondent.

No. 77345

Supreme Court of Nevada.

FILED MAY 26, 2022

Rene L. Valladares, Federal Public Defender, and Joanne L. Diamond and Jose A. German, Assistant Federal Public Defenders, Las Vegas, for Appellant.

Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and John T. Afshar, Deputy District Attorney, Clark County, for Respondent.

BEFORE THE SUPREME COURT, EN BANC.

OPINION

By the Court, HERNDON, J.:

Appellant Marlo Thomas was convicted of two murders (among other felony offenses) and sentenced to death for each murder. He obtained relief from the death sentences in the first postconviction proceeding challenging his conviction and sentences, but a jury again imposed death sentences in a penalty phase retrial. This appeal involves Thomas's third postconviction petition for a writ of habeas corpus, a petition that the district court denied without conducting an evidentiary hearing after determining it is subject to multiple procedural bars under NRS Chapter 34. Consistent with our recent decision in Chappell v. State, 137 Nev. Adv. Op. 83, 501 P.3d 935 (2021), we conclude that Thomas timely asserted the alleged ineffective assistance of second postconviction counsel as good cause and prejudice to raise procedurally barred grounds for relief from the death sentences imposed at the penalty phase retrial. But also consistent with Chappell, we conclude that he failed to demonstrate good cause and prejudice to raise any other procedurally barred grounds for relief.

Among Thomas's numerous allegations that second postconviction counsel provided ineffective assistance, we conclude two of his claims warrant an evidentiary hearing: (1) his claim that second postconviction counsel failed to present compelling mitigation evidence to support the claim that penalty phase counsel provided ineffective assistance in developing and presenting the mitigation case at the penalty phase retrial; and (2) his claim that second postconviction counsel should have alleged that penalty phase counsel provided ineffective assistance during jury selection by failing to question, challenge for cause, or peremptorily challenge a veniremember who indicated she favored the death penalty, was not open to a sentence that would allow for parole, and could not consider mitigating circumstances. We therefore reverse the district court's order as to those two claims and remand for an evidentiary hearing limited to those claims. Because none of Thomas's remaining arguments warrant relief, we otherwise affirm the district court's order.

FACTS

On April 15, 1996, Thomas and Kenya Hall robbed Thomas's former employer, Lone Star Steakhouse in Las Vegas, Nevada, while armed with pistols. While Hall watched the manager, Thomas found two employees in the men's restroom. They tried to leave and struggled with Thomas. Thomas grabbed a knife from the counter and repeatedly stabbed one victim and chased down the other and stabbed him as well. Both died as a result of their injuries. Thomas and Hall escaped with the money in a car driven by Angela Love (now Angela Thomas).

The jury convicted Thomas of two counts of murder with the use of a deadly weapon, one count of robbery with the use of a deadly weapon, first-degree kidnapping with the use of a deadly weapon, conspiracy to commit murder and/or robbery, and burglary while in possession of a firearm. The jury sentenced Thomas to death for each murder. This court affirmed the convictions and sentences on direct appeal. Thomas v. State (Thomas I), 114 Nev. 1127, 967 P.2d 1111 (1998).

Thomas successfully challenged the death sentences in a timely postconviction habeas petition and was granted a new penalty phase trial. Thomas v. State (Thomas II), 120 Nev. 37, 45, 83 P.3d 818, 824 (2004). At the penalty phase retrial, the jury sentenced Thomas to death for each murder. This court affirmed the death sentences on appeal, Thomas v. State (Thomas III), 122 Nev. 1361, 148 P.3d 727 (2006), and later affirmed the district court's order denying Thomas's second postconviction petition, which had been Thomas's first opportunity to collaterally challenge the death sentences imposed at the penalty phase retrial, Thomas v. State (Thomas IV ), No. 65916, 2016 WL 4079643 (Nev. July 22, 2016) (Order of Affirmance).

Thomas filed the postconviction habeas petition at issue in this appeal—his third such petition—on October 20, 2017. He alleged that trial, appellate, first postconviction, second penalty phase, and second postconviction counsel provided ineffective assistance. The district court denied the petition as procedurally barred. This appeal followed.

DISCUSSION

Thomas's petition was untimely, given that he filed it roughly 18 years after the remittitur issued in his direct appeal from the original judgment of conviction and 9 years after the remittitur issued in his direct appeal from the judgment of conviction entered after the penalty phase retrial. See NRS 34.726(1). The petition included grounds for relief that Thomas waived because he could have raised them on direct appeal or in the previous postconviction petitions. See NRS 34.810(1)(b)(2). The petition was also successive to the extent it alleged grounds for relief that had been considered on the merits in a prior proceeding, and it constituted an abuse of the writ to the extent it raised new and different grounds for relief. See NRS 34.810(2).

To avoid dismissal based on those procedural bars, Thomas had to demonstrate good cause and prejudice. See NRS 34.726(1) ; NRS 34.810(1)(b), (3). As this court has explained,

Under Nevada law, a petitioner cannot relitigate his sentence decades after his conviction by continually filing postconviction petitions unless he provides a legal reason that excuses both the delay in filing and the failure to raise the asserted errors earlier, and further shows that the asserted errors worked to his "actual and substantial disadvantage."

Castillo v. State, 135 Nev. 126, 127-28, 442 P.3d 558, 559 (2019) (quoting State v. Huebler , 128 Nev. 192, 197, 275 P.3d 91, 95 (2012) ). Thomas argues that the district court erred in denying his petition as procedurally barred without conducting an evidentiary hearing. He asserts that ineffective assistance of prior postconviction counsel is sufficient to excuse his untimely and successive petition as to claims related to the guilt phase and the penalty phase retrial.¹ He also argues that Williams v. State, 134 Nev. 687, 429 P.3d 301 (2018), provides good cause to revisit the Batson² claim he previously raised; that the Supreme Court's decision in Hurst v. Florida, 577 U.S. 92, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), provides good cause to assert a penalty-phase instructional error for the first time; and that he is entitled to the cumulative consideration of procedurally barred claims.

Thomas did not timely raise the good-cause claims based on ineffective assistance of first postconviction counsel

Thomas contends that, because he had obtained relief from the death sentences imposed in the original judgment of conviction and first postconviction counsel (David Schieck) continued to represent him through the penalty phase retrial and the subsequent direct appeal in Thomas III, the third petition was his first opportunity to assert first postconviction counsel's ineffectiveness as good cause to raise procedurally barred grounds for relief from the convictions. We recently considered similar arguments and circumstances in Chappell v. State, 137 Nev. Adv. Op. 83, 501 P.3d 935 (2021). There, we concluded that a petitioner must assert good-cause claims based on postconviction counsel's performance as to guilt-phase issues within 1 year after the remittitur issues on appeal from the district court order denying postconviction relief as to the convictions even where that postconviction proceeding resulted in a penalty phase retrial. Id. at ––––, 501 P.3d at 948. Our decision in Chappell reiterated and applied several prior decisions explaining that the alleged "[i]neffective assistance of postconviction counsel can constitute good cause for an untimely and successive petition where postconviction counsel was appointed as a matter of right, if the postconviction-counsel claim is not itself untimely and therefore procedurally barred." Id. at –––– – ––––, 501 P.3d at 946 (citing Rippo v. State , 134 Nev. 411, 423 P.3d 1084 (2018) ; Lisle v. State , 131 Nev. 356, 360, 351 P.3d 725, 728 (2015) ; Huebler, 128 Nev. at 198 n.3, 275 P.3d at 95 n.3 ; State v. Eighth Judicial Dist. Court (Riker ), 121 Nev. 225, 235, 112 P.3d 1070, 1077 (2005) ; Hathaway v. State , 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003) ). Thomas thus had to assert first postconviction counsel's ineffectiveness as good cause to raise procedurally barred claims challenging his convictions within 1 year after the remittitur issued in Thomas II on March 9, 2004. Because the instant petition was filed well beyond that date, the claims about first postconviction counsel's performance were untimely and could not provide good cause. Accordingly, the district court did not err in denying the petition as to the asserted grounds for relief related to the issue of Thomas's guilt because those grounds are procedurally barred under NRS 34.726(1), NRS 34.810(1)(b)(2), and NRS 34.810(2).

Thomas timely raised good-cause claims based on second postconviction counsel's alleged ineffective assistance

Thomas argues that counsel's ineffectiveness during the second postconviction proceedings provides good cause to raise procedurally barred grounds for relief from the death sentences imposed during the penalty phase retrial.³ Because the second postconviction petition was Thomas's first opportunity to collaterally challenge the death sentences imposed at the penalty phase retrial, he had the statutory right to appointed counsel to...