Valerio v. State
| Decision Date | 30 April 1996 |
| Docket Number | No. 25502,25502 |
| Citation | 915 P.2d 874,112 Nev. 383 |
| Parties | John Espiredion VALERIO, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Appeal from an order of the district court dismissing a post-conviction petition for a writ of habeas corpus. Seventh Judicial District Court, White Pine County; Merlyn H. Hoyt, Judge.
Mary Beth Gardner, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, William P. Henry, Senior Deputy Attorney General and Rusty D. Jardine, Deputy Attorney General, Carson City, for Respondent.
In 1988, a jury convicted John Espiredion Valerio of first degree murder with the use of a deadly weapon. Valerio stabbed Karen Blackwell, a prostitute, to death, then wrapped her body in blankets and left her body in her car. Valerio was sentenced to death. This court dismissed Valerio's direct appeal and his appeal from the district court's denial of his petition for post-conviction relief after concluding that his contentions lacked merit. Valerio v. State, Docket No. 19008, 105 Nev. 1051, 810 P.2d 344 (Order Dismissing Appeal, September 6, 1989); Valerio v. State, Docket No. 21886, 108 Nev. 1254, 872 P.2d 836 (Order Dismissing Appeal, January 24, 1992). 1
This is an appeal from the district court's dismissal of a post-conviction petition for a writ of habeas corpus. In this petition, Valerio raises 24 claims, some with numerous subparts. Before the district court, the State moved to dismiss the petition, alleging abuse of the writ. Valerio never responded to the State's motion, and the district court dismissed all of Valerio's claims pursuant to NRS 34.810. Valerio then filed in state district court a Motion for Relief from Judgment and, in the alternative, Motion to Alter or Amend Judgment. The district court did not rule on that motion. Valerio next filed the instant appeal from the district court's dismissal of his petition.
On appeal, Valerio argues that the district court erred in (1) dismissing grounds 1-18 without ascertaining whether those grounds had been raised in state or federal court; (2) interpreting the language "successive petitions" in NRS 34.810(2) to include claims raised on direct appeal and in the prior petition for post-conviction relief filed under NRS Chapter 177; (3) failing to ascertain whether each claim had been determined on the merits or whether he had litigated those claims in a prior proceeding; (4) finding that there was no "good cause" for failing to previously present claims 19-24; and (5) dismissing his petition because it alleged ineffectiveness of trial and appellate counsel on its face. Valerio also argues that the rules regarding procedural default and waiver are inconsistently applied in this state.
Subsequent to appealing from the district court's order dismissing his petition, Valerio filed with this court a motion pursuant to Nevada Supreme Court Rule 250(H) for referral to the district court. This court denied that motion. Valerio v. State, Docket No. 25502 (Order, February 23, 1995).
Valerio raised 24 grounds for relief in his petition, conceding that grounds 1-18 had previously been raised and that grounds 19-24 were new grounds. The district court dismissed all of Valerio's claims pursuant to NRS 34.810. NRS 34.810 provides, in pertinent part, as follows:
1. The court shall dismiss a petition if the court determines that:
....
(b) The petitioner's conviction was the result of a trial and the grounds for the petition could have been:
(1) Presented to the trial court;
(2) Raised in a direct appeal or a prior petition for a writ of habeas corpus or post-conviction relief; or
(3) Raised in any other proceeding that the petitioner has taken to secure relief from his conviction and sentence, unless the court finds both cause for the failure to present the grounds and actual prejudice to the petitioner.
2. A second or successive petition must be dismissed if the judge or justice determines that it fails to allege new or different grounds for relief and that the prior determination was on the merits or, if new and different grounds are alleged, the judge or justice finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
3. Pursuant to subsections 1 and 2, the petitioner has the burden of pleading and proving specific facts that demonstrate:
(a) Good cause for the petitioner's failure to present the claim or for presenting the claim again; and
(b) Actual prejudice to the petitioner
....
The district court dismissed grounds 1-18 of Valerio's petition pursuant to NRS 34.810(2) on the basis that he raised them previously and failed to explain why he was raising them again. Clearly, the district court was under the impression that those claims had been raised before and determined on the merits. However, some of the claims were only raised in the federal petition and not on direct appeal or in the first state post-conviction petition.
Valerio argues that the district court miscomprehended the true procedural posture of those grounds, believing that they were all previously presented in state court, and that, therefore, the district court erred in dismissing them. Valerio also contends that the district court erred in dismissing these claims pursuant to NRS 34.810(2) because the judge failed to consider whether there had been a determination on the merits with respect to any particular claim.
As for the grounds among claims 1-18 which have not been determined on the merits, we hold that the district court properly dismissed these grounds pursuant to NRS 34.810 since Valerio could have raised them in his first petition, and his failure to do so constituted an abuse of the writ.
We further hold that the district court did not err in dismissing those grounds among claims 1-18 which had been determined on the merits. These claims may not be raised again because this court's prior orders dismissing them constitute the law of the case. See Hall v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975). This court specifically considered the issues that Valerio raised in his direct appeal in the order dismissing that appeal. Valerio v. State, Docket No. 19008, 105 Nev. 1051, 810 P.2d 344 (Order Dismissing Appeal, September 6, 1989). In the order dismissing the appeal from denial of his petition for post-conviction relief, this court concluded that Valerio's claims of ineffective counsel at trial and on direct appeal were without merit. Valerio v. State, Docket No. 21886, 108 Nev. 1254, 872 P.2d 836 (Order Dismissing Appeal, January 24, 1992). Valerio failed to show cause why he was raising those claims again.
Valerio also argues that the district court improperly made findings from the face of the petition, citing Phelps v. Director, Prisons, 104 Nev. 656, 764 P.2d 1303 (1988). Phelps is distinguishable. There, the district court dismissed the petition by determining waiver from the face of the petition. Id. at 658, 764 P.2d at 1305. In the instant case, the State alleged abuse of the writ in its motion to dismiss, and Valerio had the opportunity to show "good cause" and "actual prejudice" but failed to file a response. The district court considered the State's motion and awaited Valerio's opposition to that motion. Thus, the district court did not summarily dismiss Valerio's petition on its face. See id. at 659, 764 P.2d at 1305.
Valerio also claims that the district court erred by broadly interpreting the language "second or successive petition" in NRS 34.810(2) to include both his direct appeal and prior Chapter 177 petition as prior petitions. Based upon this, Valerio argues that NRS 34.810(2) is ambiguous and his direct appeal and Chapter 177 petition should not be considered prior petitions under the statute.
Under NRS 34.810(2), the district court is obligated to dismiss a petition if it is "[a] second or successive petition" and the
judge or justice determines that it fails to allege new or different grounds for relief and that the prior determination was on the merits or, if new and different grounds are alleged, the judge or justice finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
The district court dismissed grounds 19-24 on the basis that "failure to assert the new grounds in a prior petition constituted an abuse of the writ." The court did not conclude that the direct appeal constituted a "prior petition." The court only concluded that the petition filed pursuant to NRS Chapter 177 was a "prior petition." A petition filed pursuant toNRS Chapter 177 has been considered to be a "prior petition" for purposes ofNRS 34.810(2). Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994). The district court did not err in considering Valerio's Chapter 177 petition to be a "prior petition" for purposes of NRS 34.810(2).
As mentioned, Valerio failed to cite any "good cause" in his petition as to why he was raising the "old" grounds among 1-18 again (those which had been determined on the merits), or why he was raising those "new" grounds among 1-18 for the first time in state court (those which had only been raised in federal district court). Valerio did, however, cite cause as to why he was raising grounds 19-24 for the first time in the instant petition. He stated that he did not remember certain conversations between himself and his trial attorney until after his federal petition had been filed. It appears from Valerio's brief that he is only referring to claims 19-24 in this argument.
Pursuant to NRS 34.810(3), Valerio has the "burden of pleading and proving specific facts that demonstrate (a) Good cause for the petitioner's failure to present the claim or for presenting the claim again; and (b) Actual prejudice." The district court concluded that the "good cause" for grounds 19-24 was insufficient, where Valerio essentially argued that he forgot...
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