Feazell (Doneale) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
DONEALE L. FEAZELL, No. 66311
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
JAN •I 5 2016
TRACE K. LINDEMAN
CLERKgU REME COURT
BY
DEPUTY CLER s-
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; Elizabeth Goff Gonzalez, Judge.
Appellant Doneale Feazell argues that the district court erred
in denying his second postconviction petition for a writ of habeas corpus on
the grounds that he received ineffective assistance of counsel in his second
penalty hearing and his April 2000 postconviction evidentiary hearing.'
To demonstrate ineffective assistance of counsel, a petitioner must show
both that counsel's performance was deficient in that it fell below an
objective standard of reasonableness and that prejudice resulted in that
there is a reasonable probability that, but for counsel's errors, the outcome
'This is Feazell's first postconviction petition for a writ of habeas
corpus following his second penalty hearing, which took place after this
court vacated his sentence and ordered a new penalty hearing. See Feazell
v. State, Docket No. 37789 (Order Affirming in Part and Vacating in Part,
Nov. 14, 2002). Patricia Erickson represented him at the second penalty
hearing, and Scott Bindrup represented him at the prior postconviction
evidentiary hearing. When postconviction counsel is appointed pursuant
to a statutory mandate, see NRS 34.820(1), a petitioner is entitled to
effective assistance of that counsel. Crump v. Warden, 113 Nev. 293, 303,
934 P.2d 247, 253 (1997); McKague v. Warden, 112 Nev. 159, 164, 912 P.2d
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of the proceedings would have been different. Strickland v. Washington,
466 U.S. 668, 687-88, 694 (1984); Warden v. Lyons, 100 Nev. 430, 432-33,
683 P.2d 504, 505 (1984) (adopting the Strickland test). We give deference
to the district court's factual findings but review the court's application of
the law to those facts de nova. Lader v. Warden, 121 Nev. 682, 686, 120
P.3d 1164, 1166 (2005). Counsel is strongly presumed to have provided
adequate assistance and exercised reasonable professional judgment in all
significant decisions. Strickland, 466 U.S. at 689.
First, Feazell argues that Erickson was ineffective at the
second penalty hearing for failing to direct Dr. Cunningham to conduct a
personal interview, in part because this omission opened the expert
testimony to impeachment. "A strategy decision, such as who should be
called as a witness, is a tactical decision that is virtually unchallengeable
absent extraordinary circumstances." Doleman v. State, 112 Nev. 843,
848, 921 P.2d 278, 280-81 (1996) (internal quotation marks omitted).
Erickson explained her strategy decision during the evidentiary hearing:
she was concerned that Feazell would have discussed his extreme racial
views, which then could have been raised in court to the detriment of his
defense. Considering that Dr. Cunningham was amply able to testify
regarding risk factors toward delinquency and criminality in Feazell's
family and neighborhood without interviewing Feazell, we conclude that
Feazell has not shown extraordinary circumstances justifying a challenge
to Erickson's strategy decision regarding the scope of Dr. Cunningham's
investigation. Therefore, we conclude that the district court did not err.
Second, Feazell argues that Erickson was ineffective for failing
to request a psychological evaluation. When mental health records
suggest that a psychological evaluation may prove favorable in mitigating
a death sentence, "counsel's failure to request such an evaluation is both
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inadequate and prejudicial." See Riley v. State, 110 Nev. 638, 650, 878
P.2d 272, 280 (1994). As no prior mental health records suggested that
Feazell had any pretrial psychological or cognitive disorders and a
sentence of death was not a possibility during the second penalty hearing,
Riley is not on point, and Feazell has failed to show that Erickson's
performance was deficient. Therefore, we conclude that the district court
did not err.
Third, Feazell argues that Erickson was ineffective during the
second penalty hearing for not arguing trial counsel's ineffectiveness for
failing to obtain an eyewitness identification expert. The district court
concluded that Feazell had not shown that counsel's performance fell
below an objective standard of reasonableness or that a different outcome
would have developed but for counsel's alleged deficiencies, and we agree.
Feazell previously argued, through first postconviction counsel Scott
Bindrup, that trial counsel was ineffective for this failure, and this court
rejected the claim. Feazell v. State, Docket No. 37789, at 3 (Order
Affirming in Part and Vacating in Part, Nov. 14, 2002) (concluding that
Feazell had no entitlement to an eyewitness identification expert). This
court's prior ruling is the law of the case, see Hall v. State, 91 Nev. 314,
315, 535 P.2d 797, 798 (1975), and Feazell has not shown that Erickson
performed deficiently by failing to argue that trial counsel was deficient
when this court had previously rejected the claim. Further, Feazell has
not shown that the claim that he wanted Erickson to raise would have had
a reasonable likelihood of success. See Nika v. State, 124 Nev. 1272, 1293,
198 P.3d 839, 853 (2008).
Fourth, Feazell argues that Erickson was ineffective for not
challenging Feazell's guilt at his second penalty hearing by contesting the
inculpatory eyewitness testimony. During the evidentiary hearing,
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Erickson attempted to challenge the credibility of the eyewitness who had
identified Feazell as the perpetrator, and the district court ruled that
counsel could not relitigate Feazell's guilt during the penalty phase. See
Browning v. State, 124 Nev. 517, 526-27, 188 P.3d 60, 67 (2008)
(addressing the scope of penalty hearings). In denying the underlying
petition, the district court found that counsel had not been permitted to
attack the witness's credibility and concluded that counsel was not
ineffective. Feazell has not shown that challenging the witness's
credibility was relevant to a proper subject of the penalty hearing, and we
conclude that the district court did not err in denying relief on this ground.
Fifth, Feazell argues that Erickson was ineffective in failing to
object to the district court's finding of a mistrial or to request that the jury
be given an additional day to deliberate. After one and a half days of
deliberation, the jury foreperson informed the district court that the jury
was hopelessly deadlocked and that additional time to deliberate would
not help, see Glover v. Eighth Judicial Dist. Court, 125 Nev. 691, 702, 220
P.3d 684, 692 (2009), and the district court accordingly concluded that
manifest necessity compelled a mistrial. As the jury instructions
unambiguously stated two sentencing options, Feazell's contention that
the foreperson's description of the jury split as "eight, three, and one"
entailed that the jurors mistakenly believed that there were three
sentencing options, not two, is less plausible than the State's alternative,
that one of thefl jurors was undecided. We conclude that the district court
acted within its discretion in ordering the mistrial, see Rudin v. State, 120
Nev. 121, 142, 86 P.3d 572, 586 (2004), and that Feazell's desired objection
would have been futile, see Ennis v. State, 122 Nev. 694, 706, 137 P.3d
1095, 1103 (2006). As the jury was deadlocked, Feazell has not shown
that a request for an additional day of deliberation would yield a
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reasonable probability of a different outcome. Thus, we conclude that the
district court did not err in denying relief on this claim.
Sixth, Feazell argues that Erickson was ineffective for not
obtaining a gang expert without a pending criminal charge. Counsel alone
has the ultimate responsibility of deciding which witnesses to develop.
Rhyne v. State, 118 Nev. 1, 8, 38 P.3d 163, 167 (2002). Feazell concedes
that it may have been a good strategic move to decline to call the prepared
gang expert to testify when counsel learned shortly before the penalty
hearing that the expert had a pending criminal charge. He further notes
that Erickson had unsuccessfully sought to exclude evidence of the gang
expert's pending charge. Instead, Feazell argues that it would have been a
better move to get a different expert without a pending charge. Strategic
decisions regarding developing witnesses rest with counsel, and Feazell's
disagreement on strategy does not show that Erickson's performance was
deficient. Thus, we conclude that the district court did not err in denying
this claim.
Seventh, Feazell argues that postconviction counsel provided
ineffective assistance of counsel for failing to call five alibi witnesses to
testify at the first postconviction evidentiary hearing 2 even though their
anticipated exculpatory testimony was known and discussed in the habeas
petition. The district court concluded that Feazell failed to show that
Bindrup's performance was objectively unreasonable or that he would
have received a more favorable outcome but for counsel's alleged
deficiencies. During the first postconviction evidentiary hearing, trial
Feazell appears to ascribe this alleged deficiency to Erickson,
2
although Scott Bindrup represented him during the first postconviction
evidentiary hearing.
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counsel testified that he learned of the alibi witnesses in investigating the
case and declined to pursue an alibi defense out of ethical concerns, which
arose following his conversations with certain individuals. This strongly
suggests trial counsel's belief that the alibi affidavits sworn by Feazell's
family members contained false testimony that could not be presented in a
court of law. See NRPC 3.3(a)(3). Accordingly, Bindrup likewise did not
perform deficiently in declining to pursue this suspect testimony during
the first postconviction evidentiary hearing.
Eighth, Feazell argues actual innocence on the basis that his
alibi witnesses establish his actual innocence, warranting reversal.
Feazell's actual-innocence argument mischaracterizes actual innocence as
a ground for relief, rather than a means of overcoming a procedural bar.
See Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
Nevertheless, even assuming that actual innocence could be raised as a
freestanding claim, cf. Herrera v. Collins, 506 U.S. 390, 404-405 (1993)
(noting that the United States Supreme Court has never endorsed a
freestanding claim of actual innocence), Feazell has not shown actual
innocence because the evidence is• not reliable and thus not credible when
trial counsel concluded that the evidence could not be presented ethically.
See Schlup v. Delo, 513 U.S. 298, 324 (1995) ("To be credible, such a claim
requires petitioner to support his allegations of constitutional error with
new reliable evidence[.]"). Feazell does not contest trial counsel's
determination that this alibi evidence posed an ethical problem preventing
its presentation. Moreover, the unexplained four-year gap between the
date of the affidavits and the crime and the suspect credibility of the
affiants who were all Feazell's family members undermines the reliability
of Feazell's proffered alibi evidence. See id. at 332 Mille court may
consider how the timing of the submission and the likely credibility of the
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affiants bear on the probable reliability of that evidence."). Lastly, Feazell
has not shown that "it is more likely than not that no reasonable juror
would have convicted him in the light of the new evidence." Id. at 327.
Therefore, we conclude the district court did not err in denying this claim.
Having considered Feazell's contentions and concluded that
they are without merit, we
ORDER the judgment of the district court AFFIRMED. 3
Hardesty
J. J.
Saitta Pickering
cc: Hon. Elizabeth Goff Gonzalez, District Judge
Law Office of Kristina Wildeveld
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
the extent that Feazell asserts that the district court erred with
3 To
respect to the scope of the evidentiary hearing, we conclude that he has
failed to present relevant authority or cogent argument supporting an
entitlement to relief. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3,
6 (1987)..
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