Vanisi (Siaosi) v. Warden (Death Penalty-Pc) ( 2022 )


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  •        IN THE SUPREME COURT OF THE STATE OF NEVADA
    SIAOSI VANISI,                                          No. 78209
    Appellant,
    vs.                                                         FILED
    WILLIAM A. GITTERE, WARDEN,
    JAN 2 7 2022
    Respondent.
    ELIZABErli A. BROWN
    CLERK41Zr1PREME COURT
    .
    ORDER OF AFFIRMANCE
    This is an appeal from a district court order denying appellant's
    postconviction petition for a writ of habeas corpus. Second Judicial District
    Court, Washoe County; Connie J. Steinheimer, Judge.
    A jury found appellant Siaosi Vanisi guilty of first-degree
    murder, three counts of robbery with the use of a deadly weapon, and grand
    larceny and sentenced him to death for the murder. This court affirmed the
    judgment of conviction on appeal, Vanisi v. State (Vanisi 1), 
    117 Nev. 330
    ,
    
    22 P.3d 1164
     (2001), and the denial of his first postconviction petition for a
    writ of habeas corpus, Vanisi v. State (Vanisi II), No. 50607, 
    2010 WL 3270985
     (Nev. Apr. 20, 2010) (Order of Affirmance). Vanisi filed the instant
    petition on May 4, 2011—his second postconviction petition challenging his
    conviction and sentence. The district court denied the petition, but we
    reversed in part and remanded for the district court "to conduct an
    evidentiary hearing concerning whether Vanisi was prejudiced by
    postconviction counsel's failure to substantiate their claim of ineffective
    assistance of trial counsel for failure to introduce additional mitigation
    evidence." Vanisi v. State (Vanisi HD, No. 65774, 
    2017 WL 4350947
    , at *3
    (Nev. Sept. 28, 2017) (Order Affirming in Part, Reversing in Part and
    Remanding).
    On remand, Vanisi moved to disqualify the district attorney's
    office, and the district court denied the motion. Vanisi also sought to waive
    the evidentiary hearing because he no longer wanted to pursue relief in
    state court but instead wanted to expeditiously move forward in federal
    court with challenges to the guilt phase. The district court accepted the
    waiver after cautioning Vanisi numerous times against waiver, having
    Vanisi evaluated for competency, and determining he was competent to
    waive the hearing. Because there was no evidentiary hearing, the district
    court determined that Vanisi had not demonstrated prejudice with respect
    to the remanded claim and denied relief as to that claim. Vanisi attempted
    to supplement the petition with a new claim, but the district court denied
    Ms motion. In this appeal, Vanisi argues that the district court erred by
    accepting his waiver of the evidentiary hearing, denying his motions to
    supplement the petition and to disqualify the district attorney's office, and
    violating his right to self-representation at trial.
    Regarding Vanisi's waiver of the evidentiary hearing, his
    counsel argue that the district court erred for three reasons. First, they
    contend the decision to waive the hearing rested with them, not Vanisi. See
    Rhyne v. State, 
    118 Nev. 1
    , 8, 
    38 P.3d 163
    , 167 (2002) C[T]he well-
    established rule [is] that while the client may make decisions regarding the
    ultimate objectives of representation, the trial lawyer alone is entrusted
    with the decisions regarding legal tactics."); see also RPC 1.2(a) (addressing
    the allocation of authority between client and lawyer). Because the decision
    to waive the evidentiary hearing was indivisible from Vanisi's objective in
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    seeking postconviction relief—to obtain relief from the conviction (or guilt
    phase) rather than from just the death sentence—we conclude the decision
    to waive the evidentiary hearing was Vanisi's to make. See Gov't of Virgin
    Islands v. Weatherwax, 
    77 F.3d 1425
    , 1435 (3d Cir. 1996) (recognizing some
    fundamental decisions by a client may be viewed as strategic "because they
    relate to the means employed by the defense to obtain the primary object of
    the representation—ordinarily, a favorable end resule but concluding those
    decisions can be "so personal and crucial to the accused's fate that they take
    on an importance equivalent to that of deciding the objectives of the
    representation"). As pointed out by the district court, lajlthough Mr.
    Vanisi used the words that it was a strategic decision, in fact, it wasn't
    traditional legal strategy that he's talking about. It is talking about the
    goal or objective of his appeals." And our review of the record reveals Vanisi
    clearly identified his objective throughout the proceedings: to litigate Ins
    guilt-phase claims in federal court. While his counsel assert the decision to
    waive the hearing should have rested with them due to Vanisi's diminished
    capacity, the record belies the contention that Vanisi suffers from
    diminished capacity. As the district court noted, there had been no
    conclusion by the court or a doctor that Vanisi suffered from diminished
    capacity. And the district court found that Vanisi could clearly articulate
    his reasons for waiving the hearing, that he had consistently expressed he
    did not want to spend the rest of his life in prison, and that there was no
    evidence in the record of an inconsistent mental status affecting his ability
    to understand the consequences of his decision to waive the hearing. See
    Model Rules of Profl Conduct R. 1.14, cmt. 6 (stating factors a lawyer should
    consider when determining a client's diminished capacity, including "the
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    client's ability to articulate reasoning leading to a decision, variability of
    state of mind and ability to appreciate consequences of a decision; the
    substantive fairness of a decision; and the consistency of a decision with the
    known long-term commitments and values of the client"). Accordingly, the
    district court did not err in allowing Vanisi to make the decision to waive
    the evidentiary hearing.
    Second, counsel argue Vanisi was not competent to waive the
    evidentiary hearing. We disagree. The district court used the test for
    determining whether a petitioner is competent to waive a petition, see
    Calambro By and Through Calambro v. Second Judicial Dist. Court, 
    114 Nev. 961
    , 971, 
    964 P.2d 794
    , 800 (1998), heard testimony from two doctors
    about their evaluations of Vanisi, and considered both doctors independent
    and unequivocal conclusions that Vanisi understood and had the capacity
    to appreciate his position and to make a rational choice to waive the
    evidentiary hearing and that any mental illness did not substantially affect
    his capacity to make that decision. The district court determined Vanisi
    was competent to waive the evidentiary hearing, and substantial evidence
    in the record supports the district court's determination. 
    Id.
     ("[T]his court
    will sustain the [district] court's findings when substantial evidence
    supports them."). Accordingly, the district court did not err in finding
    Vanisi competent to make the decision to waive the evidentiary hearing.
    Third, counsel argue the district court violated the mandate
    rule in accepting the waiver because this court remanded for an evidentiary
    hearing. "The mandate rule is a specific application of the law-of-the-case
    doctrine that compels the district court on remand to comply with this
    court's dictates and prohibits it from relitigating issues this court decided."
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    United States v. Mims, 
    655 F. App'x 179
    , 182 (5th Cir. 2016) (quotation
    marks omitted); see also United States v. Lee, 
    358 F.3d 315
    , 321 (5th Cir.
    2004). We do not agree with, nor has counsel offered any authority to
    support, their uncompromising view of the mandate rule. Cf. Hsu v. Cty. of
    Clark, 
    123 Nev. 625
    , 630, 
    173 P.3d 724
    , 729 (2007) (recognizing exceptions
    to the law-of-the-case doctrine that have been adopted by federal courts and
    adopting an exception); Bejarano v. State, 
    122 Nev. 1066
    , 1074, 
    146 P.3d 265
    , 271 (2006) ("[T]he doctrine of the law of the case is not absolute . . . .").
    Our decision in Vanisi III did not address whether Vanisi could waive the
    evidentiary hearing or how such a waiver would impact the district court's
    decision on remand. Rather, we remanded for an evidentiary hearing and
    a determination as to whether Vanisi had shown prejudice as to the
    remanded claim, and the district court considered Vanisi's waiver of the
    hearing when denying the claim. Nothing in our Vanisi III decision
    precluded Vanisi from waiving the evidentiary hearing or the district court
    from accepting that waiver. Accordingly, the district court did not violate
    the mandate rule in accepting Vanisi's waiver of the evidentiary hearing.
    Next, Vanisi argues the district court abused its discretion by
    denying his motion to supplement the petition to add a new claim that
    severely mentally ill defendants should be categorically excluded from the
    death penalty. We disagree. Before Vanisi moved for leave to supplement
    the petition, the district court had considered Vanisi's request to waive the
    evidentiary hearing and his competency to do so for nearly two months and
    orally denied relief on the remanded claim. The district court determined
    that the 2011 petition had been litigated to completion, with the only
    remaining claim being the one that this court remanded for an evidentiary
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    hearing, and denied Vanisi's motion to supplement the petition. See NRS
    34.750(5) (providing that it is within the district court's discretion to allow
    supplemental pleadings). We do not think it outside the bounds of law or
    reason, nor arbitrary or capricious, for the district court to conclude that the
    time to supplement a postconviction habeas petition is before the district
    court has entered a final judgment denying the petition, the appellate court
    has affirmed that decision as to all but one claim that is then remanded for
    an evidentiary hearing, and the district court has orally rejected the
    remanded claim.     See Crawford v. State, 
    121 Nev. 744
    , 748, 
    121 P.3d 582
    ,
    585 (2005) (defining an abuse of discretion).
    Vanisi also argues the district court abused its discretion by
    denying his motion to disqualify the entire Washoe County District
    Attorney's Office (WCDA). His motion was premised on alleged confusion
    during .the first postconviction proceedings about whether the WCDA
    represented Vanisi's trial counsel in those proceedings and the disclosure of
    privileged and confidential information, namely trial counsel's SCR 250
    memorandum. Vanisi has not shown that any purported conflict renders
    the postconviction proceedings unfair—any confusion about representation
    was immediately remedied when the prosecutor explained trial counsel was
    lIn light of the above, we do not consider the merits of the claim Vanisi
    wished to add as it is not properly before the court. And we express no
    opinion as to whether Vanisi could meet the procedural requirements of
    NRS chapter 34 should he raise the claim in a new postconviction habeas
    petition.
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    not a client of the WCDA, the prosecutor is no longer with the WCDA, the
    prosecutor represented he had the SCR 250 memo for about an hour before
    giving it to postconviction counsel and did not read it, and the memo is a
    part of the public record as it was filed as an exhibit to the 2011 petition.
    See State v. Eighth Judicial Dist. Court (Zogheib), 
    130 Nev. 158
    , 164-65, 
    321 P.3d 882
    , 886 (2014) (determining the inquiry about "an individual
    prosecutor's conflict of interest [being] imputed to the prosecutor's entire
    office . . . is whether the conflict would render it unlikely that the defendant
    would receive a fair trial unless the entire prosecutor's office is disqualified
    from prosecuting the case). Accordingly, the district court did not abuse its
    discretion in denying the motion to disqualify. Id. at 161, 321 P.3d at 884.
    Lastly, Vanisi argues that the trial court violated his right to
    self-representation and that he had to proceed with conflicted counsel at
    trial. This claim was not a part of this court's remand, and it is not a part
    of the district court's order that is the subject of this appeal.2 Therefore, we
    do not consider it. See Davis v. State, 
    107 Nev. 600
    , 606, 
    817 P.2d 1169
    ,
    2 0f note, we rejected this claim on direct appeal. See Vanisi I, 117
    Nev. at 338, 
    22 P.3d at 1170
    . We also determined the claim was barred by
    the doctrine of the law of the case on appeal from the order denying Vanisi's
    first postconviction habeas petition. See Vanisi II, 
    2010 WL 3270985
    , at *2.
    It was raised a third time as part of a cumulative-error claim in the second
    postconviction petition, which we rejected on appeal. See Vanisi III, 
    2017 WL 4350947
    , at *8. Vanisi offers no excuse for raising this claim yet again
    nor any argument to overcome the law-of-the-case doctrine. See Hsu, 123
    Nev. at 630, 
    173 P.3d at 728
    .
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    1173 (1991), overruled on other grounds by Means v. State, 
    120 Nev. 1001
    ,
    1012-13, 
    103 P.3d 25
    , 33 (2004).
    Having concluded no relief is warranted, we
    ORDER the judgment of the district court AFFIRMED.
    —c124.01146.116114.,17J.....
    Parraguirre
    A6                 , J                                     J.
    Hardesty                                     Stiglich
    Cadish                                       Silver
    J.                        44r=         j.
    Herndon
    cc:   Hon. Connie J. Steinheimer, District Judge
    Federal Public Defender/Las Vegas
    Attorney General/Carson City
    Washoe County District Attorney
    Law Office of Lisa Rasmussen
    The Law Office of Kristina Wildeveld & Associates
    American Civil Liberties Union of Nevada/Reno
    Chesnoff & Schonfeld
    Clark County Public Defender
    Washoe District Court Clerk
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