Blake (Alfonso) v. Warden (Death Penalty-Pc) ( 2014 )

 retrieve their belongings around 11 p.m. the next night. Blake was upset
with their decision.
On March 4, 2003, Kim, Van Dine, and two of their friends
drove to Blake's house in two vehicles to retrieve the women's belongings.
They were unable to fit everything in the vehicle, and Kim told Blake that
they would return later that evening for the rest of their things. The
encounter was uneventful.
The situation turned confrontational when Kim, Van Dine,
and Sophear returned later that evening to gather the rest of their
belongings. While driving to Blake's house, Sophear had a heated phone
conversation with Blake. When the women reached Blake's neighborhood,
they noticed some of their possessions on a street corner and stopped.
While they were loading their vehicle, two cars pulled up behind them.
Blake rushed out of one of the vehicles and confronted Sophear. He
nudged her in the back and the three women who were with Blake (Jinah
Chung, Bonette Lim, and Aileen Ramos) surrounded Sophear. Nervous
that Sophear was about to be beaten, Kim called 9-1-1 on her cellphone.
Blake began choking Sophear and hitting her head against boxes that had
been loaded into her vehicle. During the altercation, Blake stabbed
Sophear, and he somehow was stabbed. One of his companions tried to hit
Kim and take her cellphone. After Sophear dropped to the ground, Blake
approached Kim, took her cellphone and demanded to know whom she had
called.
After the altercation, Blake ordered Kim, Sophear, and Van
Dine to walk toward an open desert area. He told his three female
companions to leave the area. After walking some distance, he forced the
women on their knees, donned a pair of gloves, pulled a silver revolver out
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of his pocket, and said, "I warned you I didn't want any problems." Blake
shot Van Dine and Sophear in the head. He pointed the gun at Kim and
pulled the trigger. The bullet struck Kim in the head and ricocheted off a
ring on her right hand, which she had waved over her head. Blake shot
Kim again in the head, and she lost consciousness.
When Kim woke up, Blake was gone. Kim stumbled across
the desert area yelling for help. She came to a police car and told the
officer that Blake had shot her, her sister, and a friend. One of the officers
ran to the area from which Kim emerged and found Sophear dead. Van
Dine, however, was still breathing. She was transported to the hospital,
where she succumbed to her injuries a few hours later.
Meanwhile, Blake fled to Los Angeles along with Chung, Lim,
and his friend, Vandal, in Chung's Blazer. During the drive, Blake and
Vandal concocted Blake's alibi. When they arrived in Los Angeles, Vandal
wrapped Blake's gun in a towel and threw it in the sewer. They also
stopped to buy hand cleaner. Blake scrubbed his hands with it and tossed
the remainder down the sewer.
While in Los Angeles, Blake sought medical treatment for his
injuries at a local hospital but lied to medical personnel about how he
incurred his injury. During a phone call Blake received at the hospital,
Chung heard him say, "How could this be, there's no possible way. I shot
them in the head." Blake left the hospital the day after being admitted.
He, Lim, and Chung drove to the San Bernardino, California area and
then headed back to Las Vegas. On March 8, 2003, police officers in
Barstow, California, who were on the lookout for Chung's Blazer, pulled
the vehicle over with weapons drawn. Blake, Lim, and Chung were
arrested without incident.
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Blake asserted an insanity defense at trial. To support that
defense, he relied on testimony from his sister, Arlene Oliver, and a
psychologist, Dr. Louis Mortillaro. Oliver testified that when Blake
arrived at her home around 3 a.m. on the morning after the shootings, he
appeared irrational and delusional. He asked for a ride and then hid in
Oliver's car, seeming afraid that someone was after him. Dr. Mortillaro
testified to his opinion regarding Blake's mental state based on a series of
tests and several hours of interviews with Blake, his brother and sister,
and Ramos Dr. Mortillaro opined that Blake was in a compromised
mental state at the time of the shootings, meaning that "he would have
difficulty determining right from wrong and thinking logically." He also
opined that Blake suffered from posttraumatic stress disorder (PTSD)
resulting from the stab wound he received during the altercation with
Sophear. During cross-examination, Dr. Mortillaro testified that he was
unaware of several violent outbursts by Blake and agreed that he
"absolutely" would have preferred to have had that information prior to
his diagnosis.
The State rebutted Blake's insanity defense with testimony
from psychiatrist Dr. Thomas Bittker who disagreed with both diagnoses
offered by the defense expert. First, Dr. Bittker disagreed that Blake
suffered a brief reactive psychosis and stated that Dr. Mortillaro's opinion
did not correspond to any professional standard or to Dr. Bittker's clinical
experience. Second, Dr. Bittker testified that Blake's PTSD resulted from
the shootings, not from being stabbed. Dr. Bittker concluded that, based
upon a reasonable degree of medical certainty, Blake understood the
nature of his actions when he shot the victims
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The jury found Blake guilty of the first-degree murders of
Sophear and Van Dine and the attempted murder of Kim, all with the use
of a deadly weapon. At the penalty hearing, the State presented evidence
concerning Blake's criminal history, including: (1) a conviction for
misdemeanor battery with substantial bodily harm for hitting a 17-year-
old boy with a baseball bat, resulting in stitches to the boy's head, a
broken nose, and bruises; (2) a misdemeanor disorderly-conduct conviction
for stabbing a 17-year-old boy; (3) an arrest for hitting his girlfriend and
pushing her to the ground; (4) an encounter with a motorist in which
Blake threw a cup of ice at the motorist and punched her twice in the face;
(5) a misdemeanor malicious-destruction-of-personal-property conviction
for rendering his girlfriend's car inoperable; (6) a misdemeanor conviction
for brandishing a weapon for producing two butcher knives and
threatening to kill a woman's son; (7) a misdemeanor conviction for
conspiracy to possess a controlled substance resulting from police officers'
discovery of 164 grams of marijuana and $1000 on Blake's person; (8) a
felony conviction for the possession of a forged passport; and (9) two
misdemeanor counts of soliciting prostitution. Chung testified to beatings
she sustained from Blake and his controlling behavior. The State also
presented victim impact testimony from the victims' family members.
The jury found three circumstances aggravated each murder—
Blake had been convicted of a felony involving the use or threat of violence
to the person of another (the attempted murder of Kim), the murder was
committed to avoid or prevent a lawful arrest, and Blake had been
convicted of more than one murder in the immediate proceeding. One or
more jurors also found three mitigating circumstances—Blake's remorse;
his mental, emotional, or physical state at the time of the incident; and the
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lack of any evidence of a long-standing plan to commit murder. In
weighing the aggravating and mitigating circumstances, the jury
determined that any mitigating circumstances were insufficient to
outweigh the aggravating circumstances and returned a sentence of death
for each murder. This court affirmed the judgment of conviction and
death sentences. Blake v. State, 121 Nev. 779, 121 P.3d 567 (2005).
Blake filed a timely proper person post-conviction petition for
a writ of habeas corpus and later filed a supplemental petition through
appointed counsel. The district court denied the petition without
conducting an evidentiary hearing. On February 18, 2009, this court
upheld the district court's judgment and remittitur issued on May 19,
2009. Blake v. State, Docket No. 50552 (Order of Affirmance, February 18,
2009). On April 22, 2010, Blake filed a second post-conviction petition.
The State filed a motion to dismiss the petition on the grounds that
Blake's claims were procedurally barred and several claims were barred
by the law-of-the-case doctrine. The district court dismissed the petition
without conducting an evidentiary hearing, concluding that Blake's claims
were procedurally barred or barred by the law-of-the-case doctrine. This
appeal followed.
Because Blake filed his petition approximately five years after
this court resolved his direct appeal, the petition was untimely under NRS
34.726(1). The petition was also successive and therefore procedurally
barred pursuant to NRS 34.810(1)(b)(2). He argues that the district court
erred by denying his petition as procedurally barred because post-
conviction counsel's ineffectiveness established good cause and prejudice
to overcome the procedural bars. He further argues that he was entitled
to an evidentiary hearing.
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Blake's first post-conviction counsel was appointed pursuant
to a statutory mandate. NRS 34.820(1). He therefore was entitled to
effective assistance of that counsel. Crump v. Warden, 113 Nev. 293, 303,
934 P.2d 247, 253 (1997); MeKague v. Warden, 112 Nev. 159, 164-65 & n.5
912 P.2d 255, 258 & n.5 (1996). And this court has acknowledged that in
that circumstance a meritorious claim that post-conviction counsel
provided ineffective assistance may establish cause under NRS 34.810 for
the failure to present a particular claim in the prior post-conviction
proceeding. Crump, 113 Nev. at 304-05, 934 P.2d at 253-54. But the
ineffective-assistance claim must not be procedurally defaulted.
Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). Here, the
post-conviction-counsel claim is subject to the time bar set forth in NRS
34.726(1). State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 235,
112 P.M 1070, 1077 (2005). To demonstrate good cause for the delay, a
claim must be raised within a reasonable time after it becomes available.
Hathaway, 119 Nev. at 252-53, 71 P.3d at 506. Blake's claims of
ineffective assistance of post-conviction counsel were not reasonably
available until his appeal from the district court's order denying his first
post-conviction petition was resolved. Having filed his second post-
conviction petition within approximately 11 months after this court
resolved his first post-conviction appeal; we conclude that Blake raised his
claims of ineffective assistance of post-conviction counsel within a
reasonable time after they became available. He must, however, still show
prejudice to overcome the procedural bars.
Blake argues that post-conviction counsel was ineffective for
failing to investigate his case and challenge the ineffective assistance of
trial and appellate counsel on a number of grounds. To show that post-
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conviction counsel was ineffective for failing to raise meritorious claims of
ineffective assistance of trial and appellate counsel, a petitioner must
show that post-conviction counsel's performance fell below an objective
standard of reasonableness and that he was prejudiced as a result of
counsel's deficient performance. See Strickland v. Washington, 466 U.S.
668, 687-88 (1984); Crump, 113 Nev. at 304, 934 P.2d at 254 (indicating
that Strickland standard would determine whether post-conviction
counsel provided ineffective assistance where that counsel was appointed
pursuant to a statutory mandate). Where, as here, the post-conviction-
counsel claim is based on the omission of trial- or appellate-counsel claims,
the merits of the post-conviction-counsel claim turn in large part on the
merits of the omitted trial- or appellate-counsel claim. See State v. Jim,
747 N.W.2d 410, 418 (Neb. 2008) (stating that layered claim of ineffective
assistance requires evaluation at each level of counsel); see also Clabourne
v. Ryan, 745 F.3d 362, 377-78 (9th Cir. 2014) (observing that prejudice
showing required for ineffective assistance of post-conviction counsel
based on failure to raise ineffective-assistance-of-trial-counsel claim "is
necessarily connected to the strength of the argument that trial counsel's
assistance was ineffective"). To establish ineffective assistance of trial
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, 466 U.S. at 687-88; Warden v. Lyons, 100 Nev. 430, 432-33,
683 P.2d 504, 505 (1984) (adopting the test in Strickland). Similarly in
establishing ineffective assistance of appellate counsel, a petitioner must
demonstrate that counsel's performance was deficient in that it fell below
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an objective standard of reasonableness, and resulting prejudice such that
the omitted issue would have had a reasonable probability of success on
appeal. Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996).
Both deficiency and prejudice must be shown, Strickland, 466 U.S. at 697,
and the petitioner must demonstrate the underlying facts by a
preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012, 103
P.3d 25, 33 (2004) This court gives 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).
For the following reasons, we conclude that Blake failed to
show that post-conviction counsel was ineffective on any of the grounds he
asserts and therefore his claims were procedurally barred and the district
court did not err by denying his post-conviction petition without
conducting an evidentiary hearing.
Change of venue
Blake argues that post-conviction counsel was ineffective for
not challenging trial counsel's failure to seek a change of venue
considering the extensive media coverage of the crimes. "[Al defendant
seeking a change of venue must present evidence showing the extent of
inflammatory pretrial publicity and that such publicity corrupted the
trial." Sonner v. State, 112 Nev. 1328, 1336, 930 P.2d 707, 712 (1996).
Prejudice is not presumed "based on extensive pretrial publicity" in the
absence of a showing of actual bias on the part of jurors ultimately
empaneled. Rhyne v. State, 118 Nev. 1, 11, 38 P.3d 163, 169(2002); see
Sonner, 112 Nev. at 1336, 930 P.2d at 713. Because Blake failed to
establish any substantial grounds for trial counsel to seek a change of
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venue, a claim that trial counsel was deficient in failing to seek a change
of venue would have been futile. Under those circumstances, post-
conviction counsel cannot be faulted for not raising the trial-counsel claim.
See Donovan v. State, 94 Nev. 671, 675, 584 P.2d 708, 711 (1978)
(observing that counsel cannot be deemed ineffective for not engaging in a
futile exercise).
Matters related to voir dire
Blake argues that post-conviction counsel was ineffective for
not challenging trial and appellate counsel's performance on matters
related to voir dire, including trial counsel's failure (1) to object to the trial
court's rushing of voir dire, thereby causing counsel to refrain from asking
questions to reveal juror bias; (2) to ask meaningful questions to exercise
valid peremptory and for-cause challenges; (3) to ask potential jurors if
they could be fair under the circumstances of Blake's case; (4) to "life
qualify" the jury; (5) to rehabilitate death-scrupled jurors; and (6) to
request secluded voir dire of jurors on sensitive race issues. Nothing in
the trial transcripts suggests that voir dire was unfairly accomplished or
that any empanelled juror was not impartial. And even accepting all of
Blake's contentions as true and that trial counsel's handling of voir dire
was deficient, he has not demonstrated that the voir dire process rendered
his trial unfair or that any of the jurors ultimately empanelled harbored a
bias against him. Wesley v. State, 112 Nev. 503, 511, 916 P.2d 793, 799
(1996) ("If the impaneled jury is impartial, the defendant cannot prove
prejudice."). Accordingly, he has not demonstrated that post-conviction
counsel was ineffective for failing to raise these trial- and appellate-
counsel claims.
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Unrecorded bench conferences
Blake contends that post-conviction counsel was ineffective for
not challenging trial counsel's and the district court's failure to ensure
that all bench conferences were recorded and appellate counsel's failure to
raise this matter on appeal. We have recognized that, "[o]nly rarely
should a proceeding in a capital case go unrecorded." Daniel v. State, 119
Nev. 498, 507, 78 P.3d 890, 897 (2003). But, "a capital defendant's right to
have trial proceedings recorded and transcribed is not absolute,"
Archanian v. State, 122 Nev. 1019, 1033, 145 P.3d 1008, 1018-19 (2006),
and "Mlle mere failure to make a record of a portion of the proceedings . . .
is not grounds for reversal." Daniel, 119 Nev. at 508, 78 P.3d at 897.
Blake failed to show that any omitted portions of the record were so
significant that meaningful appellate review was frustrated. Id.
Accordingly, he cannot demonstrate that post-conviction counsel was
ineffective for omitting these trial- and appellate-counsel claims
Insanity defense and other instructions related to murder
Blake contends that post-conviction counsel was ineffective for
not challenging trial counsel's misapprehension of the insanity defense,
which, he argues, left him with no defense and caused trial counsel to
request constitutionally deficient jury instructions. Post-conviction
counsel challenged trial counsel's decision to pursue an insanity defense in
Blake's first post-conviction petition on the ground that trial counsel was
ineffective in pursuing an insanity defense because the evidence did not
support the defense. On appeal, we concluded that trial counsel's decision
to pursue an insanity defense was not unreasonable based on the facts of
the case. Blake v. State, Docket No. 50552 (Order of Affirmance, February
18, 2009) at 5-7. Now Blake contends that trial counsel's strategy was
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unreasonable because counsel misunderstood the definition of insanity
and, as a result, presented evidence that fell short of establishing insanity.
He further argues that trial counsel's inadequate preparation of Dr.
Mortillaro caused him to testify inaccurately about the insanity defense—
specifically that Blake had no history of mental illness, that he was
unaware of any event prior to the shootings that would cause Blake to
suffer a psychiatric break, and that Blake probably did not have any brain
abnormalities—because Dr. Mortillaro had not been provided with Blake's
"historical documents and social history" and had not administered any
neurological tests.
Having considered the record, we conclude that Blake's new
argument does not alter our prior conclusion that trial counsel were not
ineffective for pursuing an insanity defense. See Hall v. State, 91 Nev.
314, 316, 535 P.2d 797, 799 (1975) ("The doctrine of the law of the case
cannot be avoided by a more detailed and precisely focused argument
subsequently made after reflection upon the previous proceedings.").
Although an insanity defense may not have been a strong defense, any
defense would have been a difficult sale to the jury. See Blake, Docket No.
50552 (Order of Affirmance, February 18, 2009) at 6 ("The circumstances
of the shooting and Blake's actions after the event show that defending
this case was an extremely difficult undertaking. Any defense pursued
would have been a daunting task."). Trial counsel made the best of a
difficult case: counsel presented an expert in an effort to establish the
defense and there is nothing in the current petition to suggest that a
different understanding of the defense would have led to a stronger
presentation or would have led trial counsel not to present the defense.
Even if we were persuaded by Blake's arguments that trial counsel were
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deficient, he cannot demonstrate prejudice considering the overwhelming
evidence showing that he lined up the victims, forced them on their knees,
and methodically shot each of them in the back of the head and then fled
Las Vegas, constructed an alibi, and concealed evidence. We therefore
conclude that he cannot demonstrate that post-conviction counsel was
ineffective based on the failure to question trial counsel's understanding of
the insanity defense.
In a closely related claim, Blake argues that trial counsel's
misapprehension of the insanity defense resulted in several instructional
errors. First, he complains that the trial court should have refused
counsel's requested insanity instruction because no evidence of legal
insanity was presented. That claim is appropriate for review on direct
appeal, and Blake does not provide any explanation of good cause for his
failure to present this claim earlier. See NRS 34.810(1)(b)(2). Second,
Blake argues that the trial court erred by refusing counsel's instruction
regarding the consequences of a verdict of not guilty by reason of insanity.
On direct appeal, this court acknowledged that the district court should
have provided such an instruction but concluded that no prejudice
resulted because there was overwhelming evidence against a finding of
insanity. Blake v. State, 121 Nev. 779, 792, 121 P.3d 567, 575-76 (2005).
Blake has not articulated good cause for raising this claim again and
therefore we will not consider it. See NRS 34.810(2); Hall, 91 Nev. at 316,
535 P.2d at 799. Third, he contends that trial counsel failed to request
and the trial court failed to give a constitutionally adequate second-degree
murder instruction. The instructions given were not constitutionally
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deficient and comported with relevant statutes and this court's
jurisprudence.' See NRS 200.010; NRS 200.020; NRS 200.030; Leonard v.
State, 114 Nev. 1196, 1208, 969 P.2d 288, 296 (1998); Guy v. State, 108
Nev. 770, 776-77, 839 P.2d 578, 582-83 (1992). We conclude that Blake
has not demonstrated that post-conviction counsel was ineffective for
omitting these claims.
Evidence refuting first-degree murder
Blake argues that post-conviction counsel was ineffective for
not raising a claim that trial counsel were ineffective for failing to
investigate and present evidence of his brain damage and mental defects
that would support a verdict of second-degree murder. To support his
allegation, Blake presented evaluations from a psychologist and a
psychiatrist, both of whom essentially concluded that Blake suffered from
a long-term dissociative disorder resulting from "the extremely toxic
environment in which he was raised," and that the escalating argument
with Sophear where she stabbed him triggered further dissociation,
causing him to transition "into a new state of mind in which he committed
the murders and for which he has no memory." These experts opined that
Blake "was in such a brain damaged and dissociated state at the time of
the homicides that he was unable to deliberate and/or formulate the intent
to kill the victims, as stated within a reasonable degree of
neuropsychological and psychological scientific certainty." Although Dr.
'To the extent Blake raises trial error, this court need not consider
his claim because he provides no good cause for not having raised that
claim earlier. See NRS 34.810(1)(b)(2).
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Mortillaro's diagnosis is not identical to the new evaluations prepared for
this post-conviction proceeding and was focused on an insanity defense,
the jury heard evidence that Blake suffered from a mental condition at the
time of the shootings that made it unlikely that the shootings were
premeditated but nevertheless convicted him of premeditated murder
rather than any of the lesser offenses, including second-degree murder and
voluntary manslaughter, on which they were instructed. We conclude that
Blake has not demonstrated that post-conviction counsel was ineffective
based on the omission of this trial-counsel claim.
Prosecutorial misconduct
Blake argues that post-conviction counsel was ineffective for
not raising a claim that trial and appellate counsel were ineffective for
failing to challenge several instances of prosecutorial misconduct.
Specifically, he complains that (1) trial counsel failed to object to alleged
misstatements of law made by the prosecutor during voir dire that
presumed that his guilt and the aggravating circumstances were forgone
conclusions, (2) trial and appellate counsel failed to challenge the
prosecution's cross-examination of Dr. Mortillaro concerning his
knowledge of violent acts that Blake had committed before the shootings,
(3) trial counsel should have objected to the prosecutor's suggestion that
the jury was aligned with the prosecution, (4) trial counsel failed to object
to the prosecutor's mischaracterization of the defense, (5) trial counsel
failed to object to the prosecutor's arguments concerning the mitigation
evidence, (6) trial counsel should have objected to the prosecutor's
argument to send a message to the community and arguments concerning
general and specific deterrence, (7) trial counsel failed to object to
improper victim impact testimony, and (8) appellate counsel should have
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challenged the prosecutor's disparagement of trial counsel, the defense
expert, and the defense theory. We have carefully considered Blake's
arguments and conclude that he failed to establish that post-conviction
counsel was ineffective for not challenging trial and appellate counsel's
performance on these grounds because most of the comments or
arguments that he has identified were proper and those that were not had
no prejudicial effect at trial.
Elements of capital eligibility
Blake argues that post-conviction counsel was ineffective for
not challenging trial counsel's failure to object to the lack of a probable
cause finding on the elements of capital eligibility and to the waiver of
Blake's right to a preliminary hearing. The probable-cause claim lacks
merit for two reasons. First, this court rejected a similar claim in Maestas
v. State, 128 Nev. „ 275 P.3d 74, 86-87 (2012). Second, this court
determined in Blake's first post-conviction appeal that trial counsel was
not ineffective in this regard. Blake v. State, Docket No. 50552 (Order of
Affirmance, February 18, 2009) at 4. The waiver issue lacks merit because
this court rejected the underlying premise of this claim on direct appeal,
see Blake, 121 Nev. at 798-99, 121 Nev. at 579-80, and rejected a
substantially similar claim in his first post-conviction petition, Blake,
Docket No. 50552 (Order of Affirmance, February 18, 2009) at 4-5.
Accordingly, we conclude that Blake has not demonstrated that post-
conviction counsel was ineffective on these grounds.
Instructions
Blake contends that post-conviction counsel was ineffective for
not raising a claim that trial and appellate counsel should have challenged
several jury instructions, including (1) reasonable doubt, (2) weighing of
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aggravating and mitigating circumstances, and (3) "equal and exact
justice." Post-conviction counsel's omission of these trial- and appellate-
counsel claims was not objectively unreasonable because the instructions
were correct statements of law, see NRS 175.211(1); Nunnery v. State, 127
Nev. „ 263 P.3d 235, 250-51 (2011) (concluding that the weighing of
aggravating and mitigating circumstances is not subject to the beyond-a-
reasonable-doubt standard); Leonard v. State, 114 Nev. 1196, 1209, 969
P.2d 288, 296 (1998) (upholding instruction on equal and exact justice);
Bollinger u. State, 111 Nev. 1110, 1115 & n.2, 901 P.2d 671, 674 & n.2
(1995) (holding that language in reasonable doubt instruction is not
unconstitutional where the jury received additional instruction on the
State's burden of proof and the presumption of innocence), and therefore
the omitted trial- and appellate-counsel claims would have had no merit.
Blake also argues that post-conviction counsel was ineffective
for not raising a claim that trial and appellate counsel should have
challenged the instruction regarding the consideration of bad acts in the
death calculus. He argues that the instruction failed to explain the
limited use of character evidence and specifically neglected to advise the
jury that character evidence offered in aggravation could not be considered
in determining death eligibility. Post-conviction counsel's omission of this
claim was not objectively unreasonable as the record belies the claim—it
shows that the jury was correctly instructed.
Preventing-a-lawful-arrest aggravating circumstance
Blake contends that post-conviction counsel was ineffective for
not raising a claim that trial and appellate counsel failed to challenge the
preventing-a-lawful-arrest aggravating circumstance. Specifically, he
argues that the aggravating circumstance is unconstitutional because its
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scope is unlimited and should only encompass circumstances where an
arrest is "underway or imminent." He further contends that the fact that
a victim witnessed a felony preceding her murder is insufficient; rather,
the aggravating circumstance should require evidence of a specific intent
to kill to avoid detection. On direct appeal, we rejected a similarly
restrictive definition of the aggravating circumstance proffered by Blake
and concluded that strong evidence supported the aggravating
circumstance. See Blake, 121 Nev. at 793-95, 121 P.3d at 576-77; see
Blake v. State, Docket No. 50552 (Order of Affirmance, February 18, 2009)
at 9 (reiterating that strong evidence supported the aggravating
circumstance). We conclude that Blake has failed to demonstrate that
post-conviction counsel was ineffective for failing to challenge trial and
appellate counsel's representation where the underlying basis of the
ineffective-assistance claim was rejected on direct appeal.
Mitigation evidence
Blake argues that post-conviction counsel was ineffective for
not adequately challenging trial counsel's failure to investigate and
present evidence of his mental disorders and depraved childhood, which
would have militated against a death sentence. He acknowledges that
first post-conviction counsel challenged trial counsel's representation but
contends that post-conviction counsel presented only bare allegations, as
noted by this court, see Blake, Docket No. 50552 (Order of Affirmance,
February 18, 2013), at 2-4, and conducted no investigation to prove that
trial counsel's deficient representation resulted in prejudice.
Blake produced a plethora of evidence he contends post-
conviction counsel should have investigated and presented to show that
trial counsel's deficient representation resulted in prejudice. That
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evidence includes numerous declarations from friends and family
describing Blake's dysfunctional and abusive childhood. He also provided
mental health evaluations outlining his brain damage and mental
disorders and an Africana Studies report that described the geographic
culture and environment to which several generations of Blake's family
were exposed. Blake also presented evidence suggesting that he would not
pose a future danger if incarcerated, considering his age (34 at the time of
sentencing), continuing contact with friends and family, history of
employment, past correctional behavior, and his level of education (high
school graduate).
Assessing deficient performance is an objective inquiry—a
defendant must show that counsel's performance fell below an objective
standard of reasonableness. Harrington v. Richter, 562 U.S. „ 131
S. Ct. 770, 787 (2011). "A court considering a claim of ineffective
assistance must apply a 'strong presumption' that counsel's representation
was within the 'wide range' of reasonable professional assistance." Id.
(quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).
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Although deficient performance is reviewed under an objective
rather than subjective standard, Blake submitted declarations by trial and
post-conviction counsel in which counsel suggest that they did little
investigation to uncover additional mitigation evidence. But even
accepting Blake's contention that trial and post-conviction counsel were
deficient in their representation, he must establish prejudice. Proving
prejudice from any counsel deficiency was challenging on this record,
which shows that Blake committed a calculated, execution-style shooting
of three women and attempted to conceal his crimes. As this court has
previously recognized, "[ale circumstances of the shooting and Blake's
actions after the event show that defending this case was an extremely
difficult undertaking." Blake, Docket No. 50552 (Order of Affirmance,
February 18, 2009), at 6. While the new mitigation evidence appears
credible and the question of whether trial and post-conviction counsel's
representation was deficient may be a close call, we are not convinced that
Blake has demonstrated that had the additional mitigation evidence been
presented to the jury, there is a reasonable probability that the outcome of
the proceeding would have been different. We therefore conclude that
Blake has not demonstrated that post-conviction counsel was ineffective
on these grounds. 2
2 The Ninth Circuit Court of Appeals recently reversed a federal
district court decision denying Blake's motion to stay and abey a mixed 28
U.S.C. § 2254 habeas corpus petition pending exhaustion of his claims in
state court. Blake v. Baker, 745 F.3d 977 (9th Cir. 2014). In his federal
habeas petition, Blake argued that trial counsel was ineffective for failing
to discover and present to the jury evidence of his abusive childhood and
history of mental illness. Id. at 979. Because the claim was not been
continued on next page . .
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Lethal injection protocol
Blake contends that post-conviction counsel was ineffective for
not requesting this court revisit the denial of his claim that the lethal
injection protocol is unconstitutional. In McConnell v. State, 125 Nev. 243,
246-49, 212 P.3d 307, 310-11 (2009), we held that challenges to the lethal
. . . continued
exhausted, Blake moved for a stay and abeyance of his federal petition so
that he could return to state court to exhaust his claim. Id. Blake argued
that he had good cause for failing to exhaust his ineffective-assistance
claim because his state post-conviction counsel was ineffective for not
conducting any independent investigation and discover obvious evidence
that Blake suffered sexual, physical, and emotional abuse and organic
brain damage and psychological disorders. Id. The federal district court
disagreed and concluded that Blake had failed to demonstrate good cause.
Id. Blake appealed to the Ninth Circuit Court of Appeals. Id. The court
concluded that Blake supported his good-cause claim with evidence of his
abusive childhood and history of mental illness, including psychological
evaluations, declarations of family and friends describing Blake's
childhood and family history, and a declaration from a defense
investigator stating that he was told to cease working on the case before
reviewing all of the discovery materials or interviewing a witness. Id. at
982-83. Noting that state post-conviction counsel had not contacted any of
the witnesses and none of the evidence had been presented to the state
courts, the Ninth Circuit concluded that Blake had made a sufficient
showing that his state post-conviction counsel's performance was deficient
under Strickland to show good cause for his failure to exhaust the trial-
counsel claim. Id. at 983. The Ninth Circuit's conclusions do not influence
our decision for two reasons. First, we are not bound by that court's
decisions. See Nika v. State, 124 Nev. 1272, 1285, 198 P.3d 839, 848
(2008). Second, Blake's claim was raised in the context of establishing
good cause in federal court to secure a stay and abeyance for exhaustion
purposes and the Ninth Circuit did not address the prejudice prong of
Strickland.
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injection protocol are not appropriately raised in a post-conviction petition.
We are not persuaded by Blake's arguments to abandon our holding in
McConnell. Because this claim would not have afforded Blake any post-
conviction relief, we are not convinced that post-conviction counsel's
omission of it was objectively unreasonable or prejudiced Blake in the
prior post-conviction proceeding.
Appellate review
Blake argues that post-conviction counsel was ineffective for
not challenging the constitutionality of this court's review of death
sentences under NRS 177.055(2) on the ground that this court has not
articulated standards for that review. He contends that the absence of
standards renders this court's review unconstitutional under federal due
process standards. Blake further argues that "the constitutional
inadequacy of this Court's review is compounded by the fact that Nevada
Supreme Court Justices are popularly elected" and therefore risk removal
if they render an unpopular or controversial decision. We are not
convinced that post-conviction counsel's omission of this claim was
objectively unreasonable for three reasons. First, the statutory
requirements are clear and need no further explanation to ensure
adequate appellate review of a death sentence. See McConnell, 125 Nev.
at 255-56, 212 P.3d at 315-16. Second, he has not suggested that any
particular Justice is biased against him or identified any instances of a
Justice losing an election over a vote in a death penalty case, and this
court has rejected similar general allegations of partiality, see, e.g.,
McConnell, 125 Nev. at 256, 212 P.3d at 316; State v. Haberstroh, 119
Nev. 173, 186, 69 P.3d 676, 685 (2003). Third, the claim would have been
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procedurally barred under NRS 34.810(1)(b) because it could have been
raised on appeal.
Cumulative error
Blake argues that the cumulative effect of the deficiencies in
post-conviction counsel's representation warrants relief. Assuming that
deficiencies in counsel's performance may be aggregated to determine
prejudice under Strickland, see Harris By and Through Ramseyer v. Wood,
64 F.3d 1432, 1438 (9th Cir. 1995); State v. Thiel, 665 N.W.2d 305, 322
(Wis. 2003), we conclude that any deficiencies in post-conviction counsel's
representation are insufficient to establish prejudice even when
considered cumulatively. 3
3As part of the cumulative error analysis, Blake invites us to
consider the errors that this court found on direct appeal and to revisit
claims previously rejected by this court. There are no grounds to re-raise
previously rejected claims where no error was found because prejudice
cannot be cumulated in that circumstance, see In Re Reno, 283 P.3d 1181,
1224 (Cal. 2012) ("[C]laims previously rejected on their substantive
merits—i.e., this court found no legal error—cannot logically be used to
support a cumulative error claim because we have already found there
was no error to cumulate."), id. at 1250 (rejecting petitioner's attempt to
re-raise previously rejected claims), and he has not adequately explained
how any previous claim where error was found but rejected as non-
prejudicial assists us in assessing cumulative prejudice in this proceeding.
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Having considered Blake's arguments and concluded that no
relief is warranted, we
ORDER the judgment of the district court AFFIRMED. 4
, C.J.
Gibbons
Hardesty
prsc J.
Parraguirre Douglas
4 Blake argues that the district court erred by denying a vast number
of claims as barred by the law-of-the-case doctrine because it prevented
the district court from considering his new evidence. The district court
concluded that most of Blake's claims were barred by the law of the case,
but it appears that the district court also denied Blake's petition because
he failed to demonstrate that post-conviction counsel was ineffective. To
the extent that Blake's claims were merely a more detailed argument than
that presented in his first post-conviction petition, the district court
correctly relied on the law-of-the-case doctrine. Any error in dismissing a
claim as barred by the law-of-the-case doctrine did not prejudice Blake
because the district court nevertheless rightly denied the post-conviction
petition. See Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970)
(observing that this court will affirm the judgment of district court if it
reached the right result for the wrong reason).
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cc: Hon. Stefany Miley, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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CHERRY, J., with whom SAITTA, J., agrees, dissenting:
I respectfully dissent from the court's decision as to Blake's
claim that post-conviction counsel provided ineffective assistance with
respect to the claim that trial counsel's investigation and presentation of
mitigation evidence was ineffective.
Blake presented substantial and compelling new mitigation
evidence showing that his childhood was disturbingly dysfunctional and
abusive. The core elements of that evidence show that the children in
Blake's family were subjected to significant sexual, physical, and
emotional abuse, abandonment, and neglect, with the abuse primarily
perpetrated by family members. Some of Blake's siblings had sexual
relations with each other at a young age. Two of Blake's uncles sexually
abused him at the age of five or six, after which he began to have
tantrums and experience rage. Blake's mother, aunts, and grandmother
worked as prostitutes. Stabbings in Blake's family occurred with some
frequency; his family members were sometimes the perpetrators and other
times the victims. His family history is rife with instances of mental
illness, including bi-polar disorder. Blake's mother abused alcohol and
drugs while pregnant with him and was extremely physically abusive to
him and his siblings, beating them with extension cords, ropes, wire
hangers, wet belts, and tree branches while they were naked. He
witnessed his mother beat his father with an iron skillet and shoot him in
the leg. He has apparently been plagued by brain damage resulting from
head trauma after various accidents. Blake experienced difficulties in
school, was a poor student, and got into fights, which led to suspensions
and arrests. In his later teenage years, he abused alcohol and smoked
marijuana and, shortly after high school, he was shot in the leg by an
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unknown assailant. In adulthood, he became increasingly paranoid and
distanced himself from family and friends.
Evaluations from mental health experts explained his brain
damage and mental health impairments. One evaluation concluded that
Blake suffered from a variety of neuropsychiatric and psychiatric
conditions at the time of the shootings, including longstanding
posttraumatic stress. The evaluation further concluded that his "extreme
mental and emotional disturbances at the time of the homicides was an
outgrowth of the extremely toxic environment in which he was raised" and
that the "actions of the victims triggered 'hot buttons' that caused him to
go into a dissociative state related to his history of past trauma and
abuse." Another evaluation reached essentially the same conclusions—
that Blake suffered from longstanding posttraumatic stress and
dissociative order, along with other mental disorders.
I conclude that this evidence coupled with trial and first post-
conviction counsel's admission that their representation was deficient with
respect to investigating and presenting mitigation evidence is more than
sufficient to warrant an evidentiary hearing. See Nika v. State, 124 Nev.
1272, 1300-01, 198 P.3d 839, 858 (2008) (observing that a petitioner is
entitled to an evidentiary hearing on his claims of good cause, he is correct
only if he "assert[ed] specific factual allegations that [were] not belied or
repelled by the record and that, if true, would entitle him to relief').
Further, as the majority observes, the Ninth Circuit Court of Appeals
recently reversed a federal district court decision denying Blake's motion
to stay and abey a federal habeas corpus petition pending exhaustion of
his claims in state court, concluding that he had made a sufficient showing
that his state post-conviction counsel's performance was deficient under
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Strickland to establish good cause for his failure to exhaust the trial-
counsel claim. While we are not bound by the Ninth Circuit's decision, I
agree with its conclusion. The new mitigation evidence is nothing less
than compelling. And although the Ninth Circuit did not address the
prejudice prong of Strickland, I believe that there is a strong likelihood
that prejudice could be established at an evidentiary hearing. Therefore, I
would remand this matter to the district court for an evidentiary hearing
on the issue of whether Blake can establish prejudice to overcome the
procedural default rules based on his claim that post-conviction counsel
was ineffective for not adequately investigating and presenting the claim
that trial counsel failed to investigate and present mitigation evidence.
CIA-C-14
Cherry
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