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

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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