Thomas (Marlo) v. State (Death Penalty-Pc) ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
MARLO THOMAS, No. 65916
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
JUL 2 2 2016
TRACIE K LINDEMAN
CLEROF UPREME COURT
.
BY
DEPUTY CLERK
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.'
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 a
1 TheHonorable Michael Cherry, Justice, voluntarily recused himself
from participation in the decision of this matter.
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timely 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 for
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failing 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, he
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concluded 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 have
2 Thomas points to no facts to suggest that his intellectual
functioning changed thereafter such that counsel should have conducted a
new investigation before the second penalty hearing.
At the second penalty hearing, the State presented extensive
records which showed that Thomas had previously committed many
serious crimes, as well as testimony from corrections officers about his
abhorrent behavior while incarcerated, which included accounts that he
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explained 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 family's substance abuse problems,
mental illness, and criminal history was "by no means clearly mitigating,
as the jury might have concluded that [defendant] was simply beyond
rehabilitation"); see also Lisle v. State, 131 Nev., Adv. Op. 39, 351 P.3d
725, 733 (2015) (recognizing that "mitigation evidence can be a double-
edged sword that may indicate diminished culpability but at the same
time may indicate an increased risk of future dangerousness"). Counsel
cannot be deemed deficient for declining to introduce testimony that could
have been just as harmful as helpful and would have been
counterproductive to the picture he was trying to paint: that Thomas' bad
behavior was mostly in the past and he was maturing the longer he stayed
incarcerated. Counsel also presented testimony from Thomas' family
members, who briefly and generally commented on his mental deficits and
upbringing. Counsel's decision to generally acknowledge Thomas'
problems from his family's perspective was objectively reasonable. See
Wong v. Belmontes, 558 U.S. 15, 24 (2009) (explaining that expert
testimony was unnecessary because the defense "required only that the
jury make logical connections of the kind a layperson is well equipped to
make. The jury simply did not need expert testimony to understand the
• . . continued
attacked officers and encouraged fellow inmates to do the same, failed to
comply with institution rules, and belittled, harassed, and threatened
female corrections officers.
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'humanizing' evidence; it could use its• common sense or own sense of
mercy.").
Furthermore, we conclude that Thomas failed to demonstrate
prejudice. As explained above, the newly-proffered evidence was a double-
edged sword. In addition, it could have opened the door to unfavorable
rebuttal evidence. See Wong, 558 U.S. at 26 (holding that counsel was not
ineffective where he declined to admit favorable testimony which would
have opened the door to "the worst kind of bad evidence"). But notably,
the evidence is not so compelling that there is a reasonable probability
that the proceedings would have ended differently had it been presented.
Thomas committed two brutal murders and expressed displeasure that
there was not a third. His criminal record was extensive and included
numerous acts of violence, and he continued his violent actions while
incarcerated, oftentimes targeting women. The newly-offered evidence is
simply not enough to have changed the jury's calculus.
Having concluded that the district court did not err, we
ORDER the judgment of the district court AFFIRMED.
C.J. cisarc J.
Parraguirre Hardesty
U, J.
Saitta
Gibbons
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cc: Hon. Stefany Miley, District Judge
Justice Law Center
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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