Thomas v. State

• Decision Date: 22 July 2016
• Docket Number: No. 65916,65916
• Parties: MARLO THOMAS, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Supreme Court

MARLO THOMAS, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 65916

SUPREME COURT OF THE STATE OF NEVADA

July 22, 2016

ORDER OF AFFIRMANCE

This is an appeal from a district court order denying a postconviction petition for a writ of habeas corpus in a death penalty case. Eighth Judicial District Court, Clark County; Stefany Miley, Judge.¹

Appellant Mario Thomas robbed a manager and killed two employees at a restaurant where he formerly worked. A jury convicted him of two counts of first-degree murder with use of a deadly weapon, robbery with use of a deadly weapon, first-degree kidnapping with use of a deadly weapon, conspiracy to commit murder and/or robbery, and burglary while in possession of a firearm. After a penalty hearing, the jury sentenced him to death for each murder. The death sentences were later reversed in a postconviction proceeding, Thomas v. State, 120 Nev. 37, 45, 83 P.3d 818, 824 (2004), and a second penalty hearing was held. At the conclusion of the second penalty hearing, Thomas again was sentenced to death for each murder. This court affirmed the sentences. Thomas v. State, 122 Nev. 1361, 148 P.3d 727 (2006). Thereafter, Thomas filed atimely postconviction petition for a writ of habeas corpus. The district court denied Thomas' petition without conducting an evidentiary hearing. This appeal followed.

Thomas raises several issues related to his suggestion that he is intellectually disabled. While he initially claimed in the proceedings below that he is intellectually disabled and therefore could not be sentenced to death, see Atkins v. Virginia, 536 U.S. 304 (2002), he never requested an evidentiary hearing on the issue and later acknowledged he is not intellectually disabled but is merely close to the line. As a result, the proceedings below focused on a different but related claim: whether counsel were ineffective at the second penalty hearing for failing to present evidence of Thomas' borderline intellectual disability as a mitigating circumstance. Because Thomas abandoned his Atkins claim below, we decline to consider his assertion that the district court erred in failing to hold an evidentiary hearing to determine whether he is intellectually disabled. We also decline to consider Thomas' related claim that counsel were ineffective for failing to file a motion pursuant NRS 175.554(5) because it is raised for the first time on appeal. See Ford v. Warden, 111 Nev. 872, 901 P.2d 123, 130 (1995) (indicating that petitioner cannot raise new claim on appeal that was not presented to district court in postconviction proceeding); Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 (1991) (holding that this court need not consider arguments raised on appeal that were not presented to the district court in the first instance), overruled on other grounds by Means v. State, 120 Nev. 1001, 103 P.3d 25 (2004).

Thomas also contends that the district court erred by denying his claim that counsel at his second penalty hearing were ineffective forfailing to investigate and present evidence of his borderline intellectual disability as a mitigating circumstance. He argues that the district court should have conducted an evidentiary hearing on this claim.

To prove ineffective assistance of counsel, a petitioner must demonstrate that counsel's performance was deficient in that it fell below an objective standard of reasonableness, and resulting prejudice such that there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland). We give deference to the district court's factual findings if supported by substantial evidence and not clearly erroneous but review the court's application of the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). An evidentiary hearing is warranted where the petitioner raises claims that are not belied by the record and, if true, would warrant relief. Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984).

In support of his claim, Thomas provided the district court with a report of a neuropsychological and psychological evaluation conducted by Dr. Jonathan Mack. Dr. Mack concluded that Thomas suffers from "neurocognitive deficits that impair activities of daily life to a significant extent," including deficits in the areas of comprehension of written and spoken word, "as well as in the interpersonal social realm with extremely disinhibited impulse control and control of emotions." Dr. Mack's report showed that Thomas performed extremely poorly on most tests he performed and one of his scores was "one of the worst" Dr. Mack had ever seen. Dr. Mack concluded that Thomas had an IQ of 72, and although he did not diagnose Thomas as intellectually disabled, heconcluded that Thomas suffered from Fetal Alcohol Spectrum Disorder and several other disorders. Ultimately, Dr. Mack concluded that Thomas' "propensity towards emotional dyscontrol, effective impulsivity, and dsyregulation of aggressive behavior" was "a consequence of an organic brain syndrome, fetal alcohol exposure, and, in essence, the overall consequence of organic brain damage."

We conclude that the district court did not err. Similar evidence to that proffered in this proceeding was presented at the first penalty hearing.² We can infer that counsel made a strategic decision to take a different approach at the second penalty hearing because the record shows counsel knew of the testimony and evidence offered at the first penalty hearing. See Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (explaining that an appellate court is "required not simply to give the attorneys the benefit of the doubt, but to affirmatively entertain the range of possible reasons [the petitioner's] counsel may have had for proceeding as they did" (internal quotation marks, alterations, and citations omitted)). Such a strategic decision was objectively reasonable given that one of the State's main arguments at the second penalty hearing was that, based on his criminal history and behavior while incarcerated, Thomas would always be dangerous.³ The newly-proffered evidence might haveexplained why Thomas acted out but also could have supported the State's argument that he would never be a manageable inmate. See id. at 201 (observing that evidence of defendant's...