CHAPPELL (JAMES) v. STATE (DEATH PENALTY-PC)

137 Nev.p Advance Opinion 65
IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMES MONTELL CHAPPELL, No. 77002
Appellant,
vs.
THE STATE OF NEVADA,
FR.;71)
Respondent. DEC 3 0 2021
EF DEKRY CLERK
Appeal from a district court order dismissing a postconviction
petition for a writ of habeas corpus. Eighth Judicial District Court, Clark
County; Carolyn Ellsworth, Judge.
Affirmed.
Rene L. Valladares, Federal Public Defender, and Bradley D. Levenson,
Ellesse Henderson, and Scott Wisniewski, Assistant Federal Public
Defenders, Las Vegas,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, and Alexander G. Chen, Chief Deputy District Attorney, Clark
County,
for Respondent.
BEFORE THE SUPREME COURT, EN BANC.'
"The Honorable Abbi Silver, Justice, and the Honorable Douglas W.
Herndon, Justice, did not participate in the decision of this matter.
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OPINION
By the Court, CADISH, J.:
Several mandatory procedural bars apply to postconviction
habeas petitions under NRS Chapter 34. To overcome those mandatory
procedural bars and avoid dismissal of a postconviction habeas petition, a
petitioner must demonstrate good cause and prejudice unless certain
narrow exceptions apply. A petitioner must raise a claim of good cause
within a reasonable time after it becomes available.
In this case, appellant James Chappell asserted the ineffective
assistance of his first postconviction counsel as good cause and prejudice to
raise procedurally barred grounds for relief from the guilt phase of his trial.
But he did not do so until after the penalty phase retrial he obtained in the
first postconviction proceeding, the direct appeal from the judgment entered
after the penalty phase retrial, and the remittitur issued on appeal from the
district court order denying his second postconviction habeas petition. We
conclude that his delay based on those circumstances was not reasonable
and therefore he could not rely on the alleged ineffective assistance of first
postconviction counsel as good cause and prejudice to raise grounds for
relief from the guilt phase of his trial. He did, however, timely assert the
alleged ineffective assistance of second postconviction counsel, who was
appointed pursuant to a statutory mandate for purposes of Chappell's first
opportunity to assert collateral challenges to the death sentence imposed in
the penalty phase retrial, as good cause and prejudice to raise procedurally
barred grounds for relief from the death sentence. We conclude those
ineffective-assistance claims lack merit and therefore the district court did
not err in dismissing the petition as procedurally barred. Because we also
conclude that Chappell did not show that the failure to consider his claims
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would result in a fundamental miscarriage of justice sufficient to excuse the
procedural bars, we affirm the district court order dismissing Chappell's
third postconviction petition for a writ of habeas corpus.
FACTS AND PROCEDURAL HISTORY
Almost three decades ago, appellant James Chappell was
serving time for domestic battery in a Las Vegas jail when he was
mistakenly released from custody. Upon his release, Chappell went to the
mobile home park where his ex-girlfriend lived, climbed through a window
into her residence, had sexual intercourse with her, and stabbed her to
death with a kitchen knife before fleeing in her car. A jury found Chappell
guilty of first-degree murder with the use of a deadly weapon, robbery with
the use of a deadly weapon, and burglary and sentenced him to death for
the murder. We affirmed the judgment of conviction and sentence on direct
appeal. Chappell v. State (Chappell I), 114 Nev. 1403, 972 P.2d 838 (1998).
Chappell filed a timely postconviction petition for a writ of
habeas corpus. David Schieck was appointed to represent Chappell in that
proceeding. Although the district court rejected Chappell's claims related
to the guilt phase, it found that Chappell received ineffective assistance
during the penalty phase and ordered a new penalty hearing as to the
murder conviction. We affirmed the district court's order partially granting
and partially denying the petition. Chappell v. State (Chappell II), Docket
No. 43493 (Order of Affirmance, Apr. 7, 2006). At the penalty phase retrial,
Schieck and another attorney represented Chappell. The jury returned a
death sentence, and this court affirmed the sentence on appeal. Chappell
v. State (Chappell III), No. 49478, 2009 WL 3571279 (Nev. Oct. 20, 2009)
(Order of Affirmance).
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Following the appeal from the judgment entered after the
penalty phase retrial, Chappell filed his second postconviction petition for a
writ of habeas corpus. The claims in that petition focused on challenges to
the death sentence imposed at the penalty phase retrial. Christopher Oram
represented Chappell in the second postconviction proceeding. The district
court denied the petition, and this court affirmed. Chappell v. State
(Chappell IV), No. 61967, 2015 WL 3849122 (Nev. June 18, 2015) (Order of
Affirmance).
Chappell filed a third postconviction petition for a writ of
habeas corpus on November 16, 2016. The district court conducted a limited
evidentiary hearing on one of Chappell's claims but ultimately dismissed
the petition as procedurally barred. This appeal followed.
DISCUSSION
The district court did not err in dismissing the petition as untimely,
successive, and an abuse of the writ
Chappell's third postconviction habeas petition was untimely,
given that he filed it more than 17 years after the remittitur issued in his
direct appeal from the original judgment of conviction and more than 6
years after the remittitur issued in his direct appeal from the judgment of
conviction entered after the penalty phase retrial. See NRS 34.726(1) ("[A]
petition that challenges the validity of a judgment or sentence must be filed
within 1 year after entry of the judgment of conviction or, if an appeal has
been taken from the judgment, within 1 year after the appellate
court . . . issues its remittitur."). The petition included many grounds for
relief that Chappell had waived because he could have raised them on direct
appeal or in the previous postconviction petitions. NRS 34.810(1)(b)(2). The
petition was also successive to the extent it alleged grounds for relief that
had been considered on the merits in a prior proceeding, and it constituted
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an abuse of the writ because it included new and different grotmds for relief
(i.e., grounds that had not been raised in the prior postconviction petitions).
NRS 34.810(2). Therefore, Chappell's third petition was subject to multiple,
mandatory procedural bars. See State v. Eighth Judicial Dist. Court
(Riker), 121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005) ("Application of the
statutory procedural default rules to post-conviction habeas petitions is
mandatory.").
To avoid dismissal based on those procedural bars, Chappell
had to demonstrate good cause and prejudice, save for certain narrow
exceptions addressed below at pp. 36-38. See NRS 34.726(1); NRS
34.810(1)(b), (3). In order to demonstrate good cause, a petitioner must
show that an impediment external to the defense prevented him or her from
complying with the state procedural default rules." Hathaway v. State, 119
Nev. 248, 252, 71 P.3d 503, 506 (2003). "An impediment external to the
defense may be demonstrated by a showing that the factual or legal basis
for a claim was not reasonably available to counsel, or that some
interference by officials, made compliance impracticable." Id. (internal
quotation marks omitted). "To establish prejudice, a petitioner must show
not merely that the errors at his trial created a possibility of prejudice, but
that they worked to his actual and substantial disadvantage . . . ." State v.
Powell, 122 Nev. 751, 756, 138 P.3d 453, 456 (2006) (internal quotation
marks omitted).
Chappell claims he demonstrated good cause and prejudice
based on ineffective assistance of postconviction counsel, referring to both
first postconviction counsel (Schieck) and second postconviction counsel
(Oram). Ineffective assistance of postconviction counsel can constitute good
cause for an untimely and successive petition where postconviction counsel
5
was appointed as a matter of right, if the postconviction-counsel claim is not
itself untimely and therefore procedurally barred. See generally Rippo v.
State, 134 Nev. 411, 423 P.3d 1084 (2018) (discussing procedural bars and
availability of a postconviction-counsel claim as good cause and prejudice);
see also Lisle v. State, 131 Nev. 356, 360, 351 P.3d 725, 728 (2015) (stating
that a good-cause claim based on a Brady violation must be raised within a
reasonable time after the claim became available); State v. Huebler, 128
Nev. 192, 198 n.3, 275 P.3d 91, 95 n.3 (2012) (same); Riker, 121 Nev. at 235,
112 P.3d at 1077 (explaining that a postconviction-counsel claim is not
"immune to other procedural default fstatutesr such as NRS 34.726);
Hathaway, 119 Nev. at 252-53, 71 P.3d at 506 (explaining that ineffective-
assistance claim asserted as good cause "itself must not be procedurally
defaulted" and thus must be raised in a timely fashion). The first question,
then, is whether Chappell timely raised his good-cause claims based on
ineffective assistance of postconviction counsel, which requires a showing
that he raised those claims within a reasonable time after they became
available. Rippo, 134 Nev. at 419-22, 423 P.3d at 1095-97 (discussing the
time bar set forth in NRS 34.726 as applied to a postconviction-counsel
claim that is asserted as good cause to obtain review of other procedurally
barred grounds for relief). A postconviction-counsel claim is raised within
a reasonable time and therefore is not itself procedurally barred when it is
raised within one year of "the conclusion of the postconviction proceedings
in which the ineffective assistance allegedly occurred." Id. at 420, 423 P.3d
at 1096. Thus, the postconviction-counsel claim must be raised within one
year after entry of a final written decision by the district court resolving all
the grounds in the petition or, if a timely appeal was taken, the issuance of
the appellate court's remittitur. Id. at 421, 423 P.3d at 1096.
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Chappell did not timely raise the good-cause claims based on
ineffective assistance of first postconviction counsel
Chappell claims first postconviction counsel's ineffectiveness
provides good cause for him to raise procedurally barred grounds for relief
from the conviction (i.e., grounds related to the guilt phase of the 1996 trial
and the subsequent direct appeal). He contends that the third petition
provided the first opportunity to pursue those postconviction-counsel claims
and that he filed that petition within a reasonable time after those claims
became available. We disagree.
The remittitur in Chappell's first postconviction appeal issued
on May 2, 2006. Any good-cause claim based on first postconviction
counsel's ineffectiveness became available on that date. Thus, Chappell had
one year from May 2, 2006, to assert first postconviction counsel's
ineffectiveness as good cause to raise procedurally barred challenges to his
conviction. Having missed that deadline by almost a decade, Chappell
urges us to hold that the first-postconviction-counsel claims were not
available until November 17, 2015, when the remittitur issued on appeal
from the order denying his second postconviction habeas petition, in which
Chappell challenged the death sentence imposed at the penalty phase
retrial. We find Chappell's arguments unpersuasive.
First, relying on Johnson v. State, 133 Nev. 571, 402 P.3d 1266(2017), Chappell argues that after he obtained relief from the original death
sentence, there was no judgment of conviction to challenge in a
postconviction petition until the new judgment was entered after the
penalty phase retrial. In Johnson, we held that there was no final judgment
of conviction to trigger the one-year period outlined in NRS 34.726(1) until
after a penalty phase retrial where the penalty phase retrial had been
granted on direct appeal. Id. at 573-75, 402 P.3d at 1271-73. But here, the
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penalty phase retrial was granted in a postconviction proceeding.
Chappell's reliance on Johnson is therefore misplaced. Indeed, Johnson
distinguished between cases where the death sentence was reversed on
direct appeal and those where the death sentence was vacated in a
postconviction proceeding. Id. at 575 n.1, 402 P.3d at 1273 n.1. As
succinctly put by the California Supreme Court, when a capital defendant
is granted a new penalty hearing on collateral review, "Mlle scope of [thel
retrial is a matter of state procedure under which the original judgment on
the issue of guilt remains final during the retrial of the penalty issue and
during all appellate proceedings reviewing the trial court's decision on that
issue." People v. Kemp, 517 P.2d 826, 828 (Cal. 1974) (emphasis added)
(internal quotation marks omitted). We reached a similar conclusion on
appeal from the judgment entered after the penalty phase retrial. In that
appeal, Chappell tried to raise guilt-phase trial errors, arguing that his
conviction was not yet final. Citing Kemp and other similar cases, we
determined that the issue of Chappell's guilt was final on October 4, 1999,
when the United States Supreme Court denied certiorari from our decision
in Chappell I. Chappell III, 2009 WL 3571279, at *13.
Second, Chappell argues that if he had to file a petition raising
the postconviction-counsel claims before the penalty phase retrial, related
appeal, and postconviction challenges were complete, there would have
been confusion about whether the petition would be subject to the special
rules that apply to petitions filed by a person who is under a death sentence.
His primary concern in this respect seems to be the appointment of
postconviction counsel to assist with that petition. But there is no statutory
right to appointed counsel to represent a petitioner who has filed a
successive petition, even when the petitioner has been sentenced to death.
8
See NRS 34.820(1)(a) (mandating the appointment of postconviction counsel
if the "petitioner has been sentenced to death and the petition is the first
one challenging the validity of the petitioner's conviction or sentence"
(emphasis added)). We therefore are not convinced that it would be
unworkable in practice to require a person in Chappell's position to file a
postconviction petition before a penalty phase retrial and related appellate
and postconviction challenges are complete. Cf. Johnson, 133 Nev. at 574-
75, 402 P.3d at 1272-73 (recognizing possible confusion as to whether the
rules regarding statutorily appointed postconviction counsel for a petitioner
who has been sentenced to death would apply to a first petition filed while
the petitioner is facing a retrial of the penalty phase).
Third, Chappell argues that he could not raise his good-cause
claims based on first postconviction counsel's performance earlier because
first postconviction counsel (Schieck) continued to represent him in the
penalty phase retrial and new postconviction counsel had not been
appointed to represent him on a second postconviction petition. We again
disagree. Schieck's continued representation of Chappell with respect to
the penalty phase retrial and subsequent direct appeal did not impede
Chappell's ability to file a second postconviction petition asserting that
Schieck's ineffectiveness as first postconviction counsel provided good cause
to raise procedurally barred challenges to the conviction. Because such a
petition would have been a wholly separate proceeding from the penalty
phase retrial, Chappell could have filed the second petition pro se and
requested the appointment of counsel under NRS 34.750. And any adverse
impact a second postconviction petition might have had on Schieck's
performance during the penalty phase retrial could have been addressed in
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the retrial proceedings or in a subsequent postconviction petition
challenging the sentence imposed on retrial.
We acknowledge that parallel retrial and postconviction
proceedings in these circumstances may be complicated. But we must
weigh those complications against the "[p] assage of time, erosion of
memory, and dispersion of witnesses" that would affect both a possible
retrial of the issue of guilt and litigation of the second postconviction
petition. Groesbeck v. Warden, 100 Nev. 259, 261, 679 P.2d 1268, 1269
(1984) (quoting Engle v. Isaac, 456 U.S. 107, 127-28 (1982)); see also Rippo,
134 Nev. at 420, 423 P.3d at 1095-96 (pointing to interest in finality of a
criminal conviction as support for the conclusion that "a petitioner does not
have an indefinite period of time to raise a postconviction-counsel claim").
And while we generally prefer to avoid piecemeal litigation, that preference
similarly "must be counterbalanced against the interest in the finality of a
conviction." Witter v. State, 135 Nev. 412, 416, 452 P.3d 406, 409 (2019).
That balance tips toward finality in the circumstances presented here, given
that piecemeal litigation is unavoidable when a penalty phase retrial is
ordered on collateral review.
Consistent with Rippo and earlier cases, Chappell's good-cause
claims based on first postconviction counsel's performance as to guilt-phase
issues were available when the remittitur issued on appeal from the district
court's order denying his first postconviction petition in that regard.
Because Chappell filed the petition asserting those postconviction-counsel
claims more than one year later, those claims were untimely and could not
provide good cause. Accordingly, the district court did not err in denying
the petition as to the asserted grounds for relief related to the issue of
10
Chappell's guilt because those grounds are procedurally barred under NRS
34.726(1), NRS 34.810(1)(b)(2), and NRS 34.810(2).
Chappell timely raised good-cause claims based on second
postconviction counsel's alleged ineffective assistance
Chappell• claims that counsel's ineffectiveness during the
second postconviction proceeding provides good cause to raise procedurally
barred grounds for relief from the death sentence imposed during the
penalty phase retrial.2 These good-cause claims were raised within one year
after they became available (i.e., when remittitur issued on appeal from the
order denying the second postconviction petition). Thus, Chappell has "met
the first component of the good-cause showing required under NRS
34.726(1)." Rippo, 134 Nev. at 422, 423 P.3d at 1097. But to satisfy the
second component of the showing required under NRS 34.726(1)(b)—undue
prejudice—and the cause-and-prejudice showings required under NRS
'Chappell also argues that second postconviction counsel's
ineffectiveness excuses any delay in raising good-cause claims based on first
postconviction counsel's ineffectiveness. He is wrong. The appointment of
second postconviction counsel (Oram) was statutorily mandated only
because that petition was the first one challenging the validity of the death
sentence imposed at the penalty phase retrial. See NRS 34.820(1)(a)
(requiring the district court to appoint postconviction counsel "fi]f a
petitioner has been sentenced to death and the petition is the first one
challenging the validity of the petitioner's conviction or sentence"). Because
Chappell did not have a right to appointed postconviction counsel for a
second challenge to his conviction, second postconviction counsel's acts or
omissions do not provide good cause to excuse the delay in asserting first
postconviction counsel's ineffectiveness. See Brown v. McDaniel, 130 Nev.
565, 569 & n.1, 331 P.3d 867, 870 & n.1 (2014) (reiterating that "[w]here
there is no right to counsel there can be no deprivation of effective
assistance of counsel" and that death-penalty defendants are entitled to
effective assistance of appointed counsel in first postconviction proceedings
(alteration in original) (internal quotation marks omitted)).
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34.810(1)(b) and NRS 34.810(3), Chappell also had to prove that second
postconviction counsel was ineffective. Id. at 422, 425, 423 P.3d at 1097,
1099. We turn then to the substance of Chappell's claims regarding second
postconviction counsel's performance.
Chappell's claims that second postconviction counsel provided
ineffective assistance lack merit
We have adopted the Strickland test "to evaluate postconviction
counsePs performance where there is a statutory right to effective
assistance of that counsel." Id. at 423, 423 P.3d at 1098; see generally
Strickland v. Washington, 466 U.S. 668 (1984). Thus, to prove that second
postconviction counsel was ineffective, Chappell had to show "(1) that
counsel's performance was deficient and (2) that counsel's deficient
performance prejudiced [him]." Rippo, 134 Nev. at 423, 423 P.3d at 1098.
Both showings are required. Id. The inquiry on the first prong focuses on
whether postconviction counsel's performance fell below an objective
standard of reasonableness. See id. at 438, 423 P.3d at 1108 (indicating
that postconviction counsel's performance is not deficient if it comes within
"the wide range of reasonable professional assistance" (quoting Strickland,
466 U.S. at 689)). The inquiry on the second prong focuses on whether the
"deficient performance prevented [Chappell] from establishing . . . that the
sentence was imposed, in violation of the Constitution of the United States
or the Constitution or laws of this State." Id. at 424, 423 P.3d at 1099
(recognizing that "the question is more than whether the first post-
conviction relief proceeding should have gone differently" (internal
quotation marks omitted)).
Before evaluating Chappell's postconviction-counsel claims
under the Strickland test, we find it necessary to address the level of
specificity required when pleading such claims in a postconviction petition
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and arguing them on appeal. NRS Chapter 34 requires a petitioner to
identify the applicable procedural bars for each claim presented and the
good cause that excuses those procedural bars. See NRS 34.735 (outlining
the form for a postconviction habeas petition, questions 17-19); see also NRS
34.726(1) (requiring a petitioner to show cause for the delay in filing a
petition and undue prejudice); NRS 34.810(3) (providing that "the petitioner
has the burden of pleading and proving specific facts that
demonstrate . . . iglood cause for the petitioner's failure to present the claim
or for presenting the claim again [] and . . . Caktual prejudice to the
petitionee (emphases added)). And a petitioner's explanation of good cause
and prejudice for each procedurally barred claim must be made on the face
of the petition. See State v. Haberstroh, 119 Nev. 173, 181, 69 P.3d 676, 681
(2003). Thus, to avoid dismissal under NRS 34.726(1) or NRS 34.810, a
petitioner "cannot rely on conclusory claims for relief but must provide
supporting specific factual allegations that if true would entitle him to
relief." Riker, 121 Nev. at 232, 112 P.3d at 1075; see also Haberstroh, 119
Nev. at 181, 69 P.3d at 681; Bejarano v. Warden, 112 Nev. 1466, 1471, 929
P.2d 922, 925 (1996). This pleading requirement is nothing new. See, e.g.,
Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984) (requiring
a postconviction petitioner to assert more than bare or naked allegations
but rather specific factual allegations, not belied or repelled by the record,
that would entitle him or her to relief if true).
The specificity required to plead an ineffective-assistance claim
as good cause is further reflected in the Strickland standard. In particular,
courts must presume that counsel performed effectively, and "Klo overcome
this presumption, a petitioner must do more than baldly assert that his
attorney could have, or should have, acted differently." Johnson, 133 Nev.
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at 577, 402 P.3d at 1274. "Instead, he must specifically explain how his
attorney's performance was objectively unreasonable . . . ." Id. (emphasis
added); see also Strickland, 466 U.S. at 690 ("A convicted defendant making
a claim of ineffective assistance must identify the acts or omissions of
counsel that are alleged not to have been the result of reasonable
professional judgment."). When it comes to postconviction-counsel claims
in particular, conclusory or general assertions of deficient performance are
insufficient because "the mere omission of a claim developed by new counsel
does not raise a presumption that prior [postconviction] counsel was
incompetent, or warrant consideration of the merits of a successive
petition." In re Reno, 283 P.3d 1181, 1210 (Cal. 2012) (internal quotation
marks omitted), quoted with approval in Rippo, 134 Nev. at 429, 423 P.3d
at 1102. Similarly, a petitioner must specifically articulate how counsel's
deficient performance prejudiced him or her. See Riley v. State, 110 Nev.
638, 649, 878 P.2d 272, 279 (1994) (rejecting an ineffective-assistance claim
where the petitioner did not "articulate prejudice in a persuasive manner"
because he or she failed "to present an argument demonstrating the type
and strength of evidence that might have been presented, and that there
exists a reasonable probability that presentation of the evidence would have
resulted in a different outcome at triar). We have reiterated these
requirements when reviewing ineffective-assistance claims on appeal,
making it clear that a petitioner's appellate briefs must address ineffective-
assistance claims with specificity, not just "in a pro forma, perfunctory way"
or with a "conclusory( ] catchall" statement that counsel provided ineffective
assistance. Evans v. State, 117 Nev. 609, 647, 28 P.3d 498, 523 (2001),
overruled on other grounds by Lisle, 131 Nev. at 366 n.5, 351 P.3d at 732
n.5.
14
To satisfy those specificity requirements, a petitioner arguing
good cause and prejudice in a capital case based on the ineffective assistance
of postconviction counsel must specifically plead in the petition and explain
in any appellate briefs how postconviction counsel's performance was
objectively unreasonable and how postconviction counsel's acts or omissions
prejudiced the petitioner in the prior postconviction proceeding. The merits
of the procedurally barred grounds for relief may play an integral part in
pleading and arguing good cause and prejudice based on the ineffective
assistance of postconviction counsel. See Rippo, 134 Nev. at 424, 423 P.3d
at 1098 (recognizing that "when a petitioner presents a claim of ineffective
assistance of postconviction counsel on the basis that postconviction counsel
failed to prove the ineffectiveness of his trial or appellate attorney, the
petitioner must prove the ineffectiveness of both attorneys"). But the
petitioner cannot satisfy his or her burden to plead and argue postconviction
counsel's ineffectiveness with specificity by focusing solely on the merits of
the procedurally barred grounds for relief.
With these principles in mind, we consider whether Chappell
proved that second postconviction counsel (Oram) provided ineffective
assistance. In doing so, we address the merits of the procedurally barred
grounds for relief only to the extent that they are intertwined with the
merits of the postconviction-counsel claim asserted as good cause and
prejudice. And to the extent that we address the merits of any
postconviction-counsel claims that lack the required specificity in pleading
or appellate argument, we do so only as an alternative basis to deny relief.
Failure to support claims related to evidence of Fetal Alcohol
Spectrum Disorders
Chappell argues that penalty phase counsel should have
presented evidence of Fetal Alcohol Spectrum Disorders (FASD) and of
15
Chappell's irreversible brain damage due to prenatal exposure to alcohol
and drugs. The second postconviction petition included a claim regarding
FASD that the district court and this court rejected on the merits. To
overcome the procedural bars to raising that claim again, Chappell argues
that second postconviction counsel did not support the claim with readily
available evidence, did not support his request for an investigator and
funding with sufficiently specific arguments to establish necessity, and
should have presented the claim in a more compelling manner.
The district court conducted an evidentiary hearing on this
claim. Second postconviction counsel testified that he requested funding for
a PET scan and for an FASD expert, using uncontroverted information that
Chappelrs mother had been addicted to drugs and alcohol to support the
request. Counsel recollected the States argument that FASD would not
have made a difference to the jury and his counterargument that he needed
to retain an expert because penalty phase counsel had not looked into
FASD. Second postconviction counsel recalled that the district court denied
the request as bare and conclusory and that, while he believed FASD was
an important enough topic to raise in the petition, he focused more on
challenging the sole aggravating circumstance so that Chappell would be
ineligible for the death penalty. The district court concluded that penalty
phase counsel presented most of the evidence Chappell hoped to introduce
about an FASD diagnosis during the penalty phase retrial and therefore
rejected Chappell's postconviction-counsel claim.
Chappell argues that the district court erred because the jury
did not hear evidence about FASD and resulting brain damage, evidence he
contends is fundamentally different from any other evidence presented
during the penalty phase retrial because it could have explained his actions.
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We disagree. As we noted on appeal from the order denying the second
postconviction petition, penalty phase counsel presented extensive evidence
of Chappell's cognitive deficits at the penalty phase retrial and the jury
determined that the evidence was not sufficiently mitigating. Chappell IV,
2015 WL 3849122, at *2. Thus, we concluded that Chappell had not shown
deficient performance or prejudice due to penalty phase counsel's failure to
further investigate FASD. Id. Likewise here, Chappell fails to show
prejudice due to second postconviction counsel's performance where the
omitted information merely supplements what the jury heard during the
penalty phase retrial: that Chappell suffered from substance abuse, was
born to a mother addicted to drugs and alcohol, and suffered a learning
disability. One expert explained during the penalty phase retrial that
Chappell had less free will than the average person. That same expert
noted Chappell's placement in special-education classes as early as second
grade, his lack of early success in school, his behaviors that were atypical of
a second grader, and his classification "as severely learning disabled" in
fourth grade. Additionally, the expert explained that those with a low
verbal IQ, such as Chappell, were overrepresented in the prison population
because they have trouble problem solving and making good decisions.
Lastly, the expert testified that Chappell's low verbal IQ, difficult childhood,
constant drug use, and diagnosed personality disorder(s) negatively affected
his free will. Thus, the jury heard evidence that Chappell had cognitive
deficits and that those deficits, along with Chappell's upbringing, resulted
in diminished free will and difficulty with decision-making. Information
regarding FASD may have explained the cause of Chappell's cognitive
deficits, but we are not convinced that the cause of those deficits would have
been more compelling than the deficits themselves. Therefore, Chappell
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has not demonstrated that he would have been granted relief had second
postconviction counsel handled the FASD claim differently. Accordingly,
the district court did not err in rejecting this claim as procedurally barred.3
Failure to raise grounds for relief based on ineffective assistance
during jury selection at the penalty phase retrial
Chappell raises multiple procedurally barred grounds for relief
related to jury selection at the penalty phase retrial, claiming that second
postconviction counsel provided ineffective assistance by omitting them
from the prior petition. He first argues that the State used two of its
peremptory strikes in a racially biased manner in violation of Batson v.
Kentucky, 476 U.S. 79 (1986). In his appellate brief, Chappell summarily
alleges in a footnote that "post-conviction counsel was ineffective for failing
to challenge [penalty phase] counsel's effectiveness on this basis."4 The
pleading below fares no better, as it simply identified the procedurally
barred ground for relief, along with a list of others, and summarily alleged
that it was not "raised previously due to ineffective assistance of . . . state
post-conviction counsel." Chappell's appellate arguments and pleading
below are deficient. Beyond those deficiencies, Chappell has not shown
second postconviction counsel's omission of the Batson claim was
Chappell alternatively contends that the district court's denial of
3
second postconviction counseFs request for funding and for an evidentiary
hearing provides good cause because that decision precluded him from
discovering the factual and legal bases for some of his grounds for relief.
Any issues related to the district court's decisions in the second
postconviction proceeding could have been raised in the second
postconviction appeal, see NRS 34.810(1)(b), and Chappell does not
demonstrate good cause for his failure to do so, see NRS 34.810(3).
4Chappell's reply brief adds scarcely more, as he offers a perfunctory
assertion that second postconviction counsel's failure to raise a Batson claim
"amounted to prejudicial, deficient performance."
SUPREME COURT
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«N 1947A .5401.
'
unreasonable, as Chappell does not point to another juror who expressed a
doubt as to the ability to be fair like prospective Juror Mills did or who was
as inconsistent and equivocal in expressing hesitations about the death
penalty as prospective Juror Theus was or other evidence to show the
challenges were exercised based on discrimination. See Ford v. State, 122
Nev. 398, 405, 132 P.3d 574, 578-79 (2006) (identifying one category of
circumstantial evidence that is probative of the prosecutor's intent as "the
similarity of answers to voir dire questions given by African-American
prospective jurors who were struck by the prosecutors and answers by
nonblack prospective jurors who were not strucle). Thus, Chappell did not
demonstrate cause and prejudice. Accordingly, the district court did not err
in denying the underlying claim as procedurally barred without conducting
an evidentiary hearing.
Next, Chappell claims that penalty phase counsel should have
challenged several biased veniremembers who ultimately were seated on
the jury for the penalty phase retrial. To excuse the procedural bars to that
claim, Chappell alleges that second postconviction counsel provided
ineffective assistance by omitting it. But once again, Chappell's pleading
and appellate argument regarding second postconviction counsers
ineffectiveness are deficient. We have found no assertions about second
postconviction counsel's performance specifically related to this penalty-
phase-counsel claim in Chappell's appellate briefing.5 The pleading below
is similarly deficient. Additionally, Chappell averred in his petition both
5A1though Chappell's opening brief includes a section that generally
asserts second postconviction counsel's ineffectiveness as good cause and
prejudice, the allegations in that section—save for those surrounding the
FASD claim, addressed supra—are bare and conclusory.
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074 1947A ea*
that he was raising the penalty-phase-counsel claim again "because state
post-conviction counsel failed to adequately develop, present, or
demonstrate prejudice" and that he was raising the penalty-phase-counsel
claim as a new ground for relief "due to ineffective assistance of . . . state
post-conviction counsel." This contradictory pleading is problematic—the
penalty-phase-counsel claim is either new or it is not. See NRS 34.735
(postconviction habeas petition form, questions 17-18, requiring a petitioner
to identify, among other things, which claims are re-raised and which are
new); cf. Reno, 283 P.3d at 1196 (requiring petitioners to submit a table or
chart to identify which claims are re-raised and which are new). A
reviewing court, and a responding party, should not be expected to scour a
voluminous petition and record in an. effort to ascertain whether a
particular ground for relief has been raised in a prior postconviction
petition. Beyond those pleading and briefing deficiencies, Chappell has not
shown second postconviction counsel acted unreasonably in omitting this
claim, as he has not demonstrated that the challenged jurors were biased
and therefore has not shown good cause and actual prejudice. We conclude
the district court did not err in denying this claim as procedurally barred
without conducting an evidentiary hearing.
Chappell next claims that the trial court erroneously denied his
for-cause challenges of three veniremembers who did not serve on the jury
during the penalty phase retrial. To excuse the procedural bars to that
claim, Chappell relies on ineffective assistance of second postconviction
counsel in omitting it. But again, Chappell's appellate argument and
pleading are deficient. There is no specific argument about second
postconviction counsel's performance related to this claim in Chappell's
appellate briefs. The petition includes this claim as part of a larger
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10) 1947A cealibto
allegation that is inconsistent as to whether the claim is new and not
specific about how second postconviction counsers performance was
deficient or prejudiced Chappell. Chappell also did not sufficiently identify
which facts supporting this claim are new and which have been previously
considered. See Moore v. State, 134 Nev. 262, 264, 417 P.3d 356, 359 (2018)
(recognizing that, where a petitioner claims new facts provide good cause
for a successive claim, the petitioner must "identify with specificity which
facts this court previously considered and which facts are new"). Beyond
the deficiencies in Chappell's pleading and appellate argument, the record
reveals an objectively reasonable basis for second postconviction counsel to
have omitted the underlying claim: it would have been barred by the law-
of-the-case doctrine because it was raised on direct appeal and rejected on
the merits, Chappell III, 2009 WL 3571279, at *5. See Hall v. State, 91 Nev.
314, 315-16, 535 P.2d 797, 798-99 (1975) (recognizing that "[t]he law of a
first appeal is the law of the case on all subsequent appeals in which the
facts are substantially the same and that "Whe doctrine of the law of the
case cannot be avoided by a more detailed and precisely focused argument"
(internal quotation marks omitted)). Although the law-of-the-case doctrine
can sometimes be avoided, see Hsu v. Cty. of Clark, 123 Nev. 625, 630-31,
173 P.3d 724, 729 (2007) (recognizing reasons for law of the case to be
avoided), the record does not clearly reveal any reasons to reconsider the
law of the case here, particularly given our caselaw that would have made
it impossible for second postconviction counsel to demonstrate prejudice
because none of the purportedly biased veniremembers were seated, see
Blake v. State, 121 Nev. 779, 796, 121 P.3d 567, 578 (2005) ("If the jury
actually seated is impartial, the fact that a defendant had to use a
peremptory challenge to achieve that result does not mean that the
21
defendant was denied his right to an impartial jury."). We therefore
conclude the district court did not err in denying this trial-error claim as
procedurally barred without conducting an evidentiary hearing.
Last, Chappell claims that penalty phase counsel did not
attempt to rehabilitate death-scrupled veniremembers. Again, Chappell
relies on ineffective assistance of second postconviction counsel to overcome
the procedural bars to this claim, but his pleadings below do not specifically
allege how postconviction counsel's performance was deficient. And
although the petition includes conflicting assertions as to whether the
underlying ground for relief was new, it appears Chappell had not raised
the claim regarding juror rehabilitation in any prior proceeding. Beyond
the deficiencies in Chappell's pleading and appellate argument, the record
reveals an objectively reasonable basis for second postconviction counsel to
omit the underlying claim: it lacked merit, given that it did not focus on the
jurors who were actually seated. See Weber v. State, 121 Nev. 554, 581, 119
P.3d 107, 125 (2005) ("Any claim of constitutional significance must focus
on the jurors who were actually seated, not on excused jurors."), overruled
on other grounds by Farmer v. State, 133 Nev. 693, 405 P.3d 114 (2017). We
therefore conclude the district court did not err in denying this penalty-
phase-counsel claim as procedurally barred without conducting an
evidentiary hearing.
Failure to raise grounds for relief based on evidence of
Chappell's traumatic childhood
Chappell argues that penalty phase counsel did not investigate
and present evidence of his traumatic childhood. Specifically, Chappell
claims that penalty phase counsel should have presented more evidence
about his family history of substance abuse and mental illness; the abuse,
neglect, and loss he suffered while living with his grandmother; the poverty-
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(Or 1947A meglo
stricken neighborhood where he spent his childhood; the brain damage he
suffered due to prenatal exposure to drugs and alcohol; and his use of drugs
to escape reality. To overcome the procedural bars to this penalty-phase-
counsel claim, Chappell asserted that second postconviction counsel
provided ineffective assistance in omitting it. But his pleadings below
omitted anything specific about second postconviction counsers
performance in this respect and did not clearly indicate whether the
underlying claim was new or had been raised in a prior proceeding. In his
appellate briefs, Chappell's arguments about second postconviction
counsel's performance in omitting this claim are limited to catchall
statements that counsel failed to investigate readily available witnesses to
discover the evidence and failed to do any extra-record investigation.
Beyond the deficiencies in the pleadings and appellate argument, the record
reveals objectively reasonable grounds for second postconviction counsel to
have omitted the penalty-phase-counsel claim. First, penalty phase
counsel's omission did not prejudice Chappell. One or more jurors found
several mitigating circumstances that covered the subjects identified in this
penalty-phase-counsel claim, including that Chappell (1) suffered from
substance abuse, (2) had no father figure in his life, (3) was raised in an
abusive household, (4) was the victim of physical abuse as a child, (5) was
born to a mother addicted to drugs and alcohol, (6) suffered a learning
disability, and (7) was raised in a depressed housing area. Cumulative
evidence on the same subjects would not have had a reasonable probability
of altering the jury's determination that the mitigating circumstances did
not outweigh the aggravating circumstance. Cf. Cullen v. Pinholster, 563
U.S. 170, 200 (2011) (concluding there was no reasonable probability that
"new" mitigation evidence would have changed the jury's verdict, in part
23
because "Mlle 'new evidence largely duplicated the mitigation evidence at
trial"); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (recognizing that
mitigating evidence "can be a two-edged sword that" juries might find to
show future dangerousness). Second, postconviction counsel pursued an
objectively reasonable strategy focused on eliminating the single
aggravating circumstance that, if successful, would have made Chappell
ineligible for the death penalty. See Gray v. Greer, 800 F.2d 644, 646 (7th
Cir. 1986) ("Generally, only when ignored issues are clearly stronger than
those presented, will the presumption of effective assistance of counsel be
overcome."), cited with approval in Smith v. Robbins, 528 U.S. 259, 288
(2000); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) ("[A] petitioner
may establish constitutionally inadequate performance if he shows that
counsel omitted significant and obvious issues while pursuing issues that
were clearly and significantly weaker."); see also Lara v. State, 120 Nev.
177, 180, 87 P.3d 528, 530 (2004) (observing that strategic decisions are
"virtually unchallengeable absent extraordinary circumstances" (internal
quotation marks omitted)). We therefore conclude that the district court
did not err in denying this penalty-phase-counsel claim as procedurally
barred without conducting an evidentiary hearing.
Chappell also summarily suggests that penalty phase counsel
should have presented witnesses at the penalty phase retrial that counsel
identified in the first postconviction petition. But second postconviction
counsel did raise that claim, and this court rejected it. Chappell IV, 2015
WL 3849122, at *2. Chappell has not explained in his petition below or his
appellate briefing how second postconviction counsel's performance was
deficient or prejudiced him in litigating this penalty-phase-counsel claim.
And Chappell has not provided any cogent argument to overcome the
24
doctrine of the law of the case. See Hall, 91 Nev. at 315-16, 535 P.2d at 798-
99; see also Hsu, 123 Nev. at 630-31, 173 P.3d at 729. Accordingly, we
conclude the district court did not err in denying this penalty-phase-counsel
claim as procedurally barred without conducting an evidentiary hearing.
Failure to present expert witnesses
Chappell argues that penalty phase counsel should have
investigated and presented evidence of his addiction to drugs through an
addiction expert, of the effects of drugs on the brain through a
neuropharmacologist, and of his childhood through an expert on trauma.
He again relies on the ineffective assistance of second postconviction
counsel to overcome the procedural bars to this claim. But in the petition
filed below, Chappell did not specifically allege how second postconviction
counsel performed deficiently with respect to investigating and retaining
expert witnesses. And in his appellate briefing, Chappell acknowledges
that counsel hired some experts but broadly asserts that more were needed.
Beyond these deficiencies in the pleadings and appellate argument, the
record reveals an objectively reasonable basis for second postconviction
counsel to omit this penalty-phase-counsel claim: penalty phase counseFs
omission did not prejudice the defense. A defense expert testified in the
desired manner at the penalty phase retrial, telling the jury that Chappell
became dependent on cocaine at a young age and that regular use of the
drug may cause paranoid delusions and psychosis and result in
uncontrollable behaviors and thoughts. And one or more jurors found as a
mitigating circumstance that Chappell suffered from substance abuse.
Thus, the jury was able to and did consider Chappell's substance abuse as
a mitigating circumstance without additional testimony from an addiction
expert or neuropharmacologist. And because the jury also heard evidence
about Chappell's traumatic childhood, we are not convinced there is a
SUPREME COURT
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25
reasonable probability that an expert's testimony about how the trauma
impacted the course of Chappelrs life would have altered the jurors'
sentencing decision. See Pinholster, 563 U.S. at 201; Atkins, 536 U.S. at
321. Under these circumstances, Chappell has not demonstrated that
second postconviction counsel provided ineffective assistance by omitting
this penalty-phase-counsel claim. Accordingly, we conclude the district
court did not err by denying this penalty-phase-counsel claim as
procedurally barred without conducting an evidentiary hearing.
Failure to prepare witnesses
Chappell argues that penalty phase counsel did not adequately
prepare witnesses to testify during the penalty phase retrial. He again
summarily points to second postconviction counsel's alleged ineffective
assistance to overcome the procedural bars to this claim without pleading
below or arguing on appeal any specifics about second postconviction
counsel's performance in this respect. Beyond the deficiencies in the
pleadings and appellate argument, the record belies in part the cause-and-
prejudice claim based on second postconviction counsel's performance.
Specifically, second postconviction counsel argued that penalty phase
counsel failed to prepare expert witnesses Dr. Lewis Etcoff, Dr. William
Danton, and Dr. Todd Grey and lay witness Benjamin Dean to testify at the
penalty phase retrial, but this court concluded that penalty phase counsel
was not ineffective.6 Chappell IV, 2015 WL 3849122, at *3-4. The record
also reveals an objectively reasonable ground for second postconviction
6This court's decision on the penalty-phase-counsel claim in Chappell
IV is the law of the case. See Hall, 91 Nev. at 315-16, 535 P.2d at 798-99.
Chappell does not identify any basis to reconsider the law of the case on
that claim. See Hsu, 123 Nev. at 630-31, 173 P.3d at 729.
26
counsel to omit another aspect of this penalty-phase-counsel claim: the
allegation that counsel did not adequately prepare Chappell to testify was
procedurally barred because it implicated trial counsel's performance in the
first trial.7 And finally, as for the remaining witnesses, Chappell has not
presented cogent argument that the State was able to discredit those
witnesses because penalty phase counsel did not adequately prepare them
to testify, see Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987), nor
has he shown prejudice due to penalty phase counsel's failure to adequately
prepare those witnesses. For these reasons, we conclude the district court
did not err by denying this penalty-phase-counsel claim as procedurally
barred without conducting an evidentiary hearing.
Failure to object to prosecutorial misconduct8
Chappell complains about multiple instances of alleged
prosecutorial misconduct, claiming that penalty phase counsel should have
objected. To overcome the procedural bars to this claim, Chappell asserts
7This aspect of the penalty-phase-counsel claim implicates trial
counsel's performance because it was Chappell's testimony from the 1996
trial that the jury heard during the penalty phase retrial; Chappell did not
take the stand during the penalty phase retrial.
8To the extent Chappell alleges good cause because the State withheld
material impeachment evidence in violation of Brady v. Maryland, 373 U.S.
83 (1963), he did not adequately plead the claim. The burden is on Chappell
"to identify with specificity which facts this court previously considered and
which facts are new" and to "explain why he is raising (the] claim again, or
if it is new, why he did not raise it sooner." Moore, 134 Nev. at 264, 417
P.3d at 359. But Chappell has not specified what facts are new, when he
discovered this alleged Brady violation, and why this claim should excuse
the procedural bars. Therefore, the district court did not err by denying this
claim as procedurally barred without conducting an evidentiary hearing.
See State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003) (outlining good
cause and prejudice requirements for a Brady claim).
SUPREME COURT
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(0) 1947A .fiMpx.
that second postconviction counsel provided ineffective assistance. But once
again, he did not plead in his petition how second postconviction counsel's
performance was deficient, and his appellate briefing is similarly deficient
with catchall contentions that second postconviction counsel failed to
effectively raise this penalty-phase-counsel claim in the previous
postconviction petition. Beyond these deficiencies in the pleadings and
appellate argument, the record belies the arguments about second
postconviction counsel in part and reveals objectively reasonable grounds
for second postconviction counsel to omit other parts of this penalty-phase-
counsel claim. First, second postconviction counsel raised some of the
prosecutorial misconduct arguments; this court rejected them. Chappell IV,
2015 WL 3849122, at *5 (rejecting Chappell's argument that counsel should
have objected to the prosecution describing him "as 'a despicable human
being who 'chose evir and concluding that there was no prejudice from the
prosecutor's improper impeachment of Fred Dean). And it was objectively
reasonable for second postconviction counsel to omit the underlying
allegations of prosecutorial misconduct that had been raised and rejected
on direct appeal after the penalty phase retrial, see Chappell III, 2009 WL
3571279, at *11-12 (rejecting Chappell's claim of prosecutorial misconduct
based on arguments about comparative worth, justice for the victim and the
State, no mercy for Chappell, the jury not being "conned," and the role of
mitigating circumstances), given that this court's decision in Chappell III
established the law of the case as to those allegations. See Hall, 91 Nev. at
315-16, 535 P.2d at 798-99; see also Hsu, 123 Nev. at 630-31, 173 P.3d at
729.
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(0) 1947A 4000.
And finally, as to the underlying allegations of prosecutorial
misconduct that have not been previously considered, Chappell asserts the
prosecutor disparaged the defense by characterizing it as an attempt to
blame Chappell's upbringing for the crimes and making sarcastic
comments. As we previously held the State was allowed to rebut evidence
of Chappell's childhood, mental impairment, and character and the State
properly commented that Chappell's past "did not take away his actions,"
see Chappell HI, 2009 WL 3571279, at *12 (internal quotation marks
omitted), and as the comments went to the State's point of view as to the
incredulity of the defense, cf. Ross v. State, 106 Nev. 924, 927, 803 P.2d
1104, 1106 (1990) ("It was within the parameters of proper argument to
point out to the jury that [a witness's] testimony might be incredible."),
Chappell has not shown second postconviction counsel acted unreasonably
in omitting this claim. Regarding Chappell's claim that the prosecutor
improperly referenced the Holocaust,9 the record reveals an objectively
reasonable basis for second postconviction counsel to omit this penalty-
phase-counsel claim: penalty phase counsel's omission did not prejudice the
defense. In reviewing the death sentence on appeal after the penalty phase
retrial, we referenced evidence that Chappell had supported his drug habit
for nearly a decade by stealing from the victim and their children; he also
beat the victim during this same time frame. After Chappell was
90n appeal, Chappell also alleges that the prosecutor compared the
victim's life living with Chappell to Anne Frank's life during the Holocaust.
Because Chappell did not cogently raise this specific allegation in district
court, we will not consider it for the first time on appeal. See State v. Wade,
105 Nev. 206, 209 n.3, 772 P.2d 1291, 1293 n.3 (1989). Even were we to
overlook this pleading defect, Chappell's claim is not clearly borne out by
the record, as the prosecutor never mentioned Frank's name nor the
Holocaust in the challenged quotation.
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40) 1917A ageta.
mistakenly released from custody, he immediately went to the victim's
home, where he stabbed her 13 times. While one or more jurors found 7 of
the 13 alleged mitigating circumstances, we observed that the mitigating
evidence waned when considered alongside the rebuttal evidence of
Chappell's history of blaming others for his problems and behavior. Indeed,
Chappell may have acknowledged killing the victim, but he continued to
blame her, at least partially, for her own murder. Other evidence at the
penalty phase retrial showed that Chappell had an overall indifference to
others well-being and that he had a lengthy criminal history, including
crimes of domestic violence. Under these circumstances, Chappell has not
proven that second postconviction counsel provided ineffective assistance by
omitting this penalty-phase-counsel claim. Accordingly, we conclude the
district court did not err in denying this penalty-phase-counsel claim as
procedurally barred without conducting an evidentiary hearing.
Failure to object during penalty phase retrial
Chappell claims that penalty phase counsel should have made
various objections during the penalty phase retrial. To overcome the
procedural bars, he asserts that second postconviction counsel provided
ineffective assistance. But his pleadings filed below and his appellate
briefing provide no specifics as to second postconviction counsel's
performance in this regard or how it was unreasonable.10 And the petition
indicates that Chappell was re-raising this penalty-phase-counsel claim and
raising it for the first time without identifying which parts of the claim were
loIn his appellate briefing, Chappell presents no cogent argument
related to his allegations about unrecorded bench conferences and gruesome
photographs. We therefore do not address them. See Maresca, 103 Nev. at
673, 748 P.2d at 6.
30
successive and which were new. Our review of the record reveals that
Chappell raised some of the allegations in his direct appeal after the penalty
phase retrial and this court rejected them. Chappell III, 2009 WL 3571279,
at *6-7 (rejecting claims that hearsay testimony and old presentence
investigation reports were erroneously admitted). Because the decision in
Chappell 111 establishes the law of the case as to those issues, see Hall, 91
Nev. at 315-16, 535 P.2d at 798-99, second postconviction counsel had an
objectively reasonable basis to omit a penalty-phase-counsel claim based on
them. Second postconviction counsel raised another allegation in this
penalty-phase-counsel claim as an appellate-counsel claim, see Chappell IV,
2015 WL 3849122, at *4 (rejecting claim "that appellate counsel was
ineffective for failing to argue that the victim-impact evidence was unfairly
cumulative), thus rebutting the claim that second postconviction counsel
omitted that allegation. The remaining allegations in this penalty-phase-
counsel claim (failure to object to prosecutorial misconduct, jury
instructions, prospective jurors who were allegedly biased, and improper
impeachment of Fred Dean) are addressed and rejected elsewhere in this
opinion in the context of other penalty-phase-counsel claims. For these
reasons, we conclude the district could did not err in denying this penalty-
phase-counsel claim as procedurally barred without conducting an
evidentiary hearing.
Failure to challenge jury instructions
Chappell contends that penalty phase counsel did not object to
erroneous jury instructions and that second postconviction counsel provided
ineffective assistance by omitting related penalty-phase-counsel claims.
Chappell argues that penalty phase counsel should have (1) asked the court
to instruct the jury that the State had to prove beyond a reasonable doubt
SUPREME COURT
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(0) 1947A 411101114
that the mitigating circumstances did not outweigh the aggravating
circumstances, (2) objected to an instruction that told the jury it had to
unanimously find mitigating circumstances, and (3) objected to the
instruction that told the jury "[a] verdict may never be influenced by
prejudice or public opinion." He again made no specific allegations in the
petition or his appellate briefing about second postconviction counsel's
performance as to this penalty-phase-counsel claim, focusing instead on the
merits of the underlying omitted claims. Beyond those deficiencies in his
pleadings and appellate arguments, the record reveals an objectively
reasonable ground for second postconviction counsel to omit these claims:
they lacked merit. The first claim depends on a strained reading of Hurst
v. Florida, 577 U.S. 92 (2016), that we have repeatedly rejected, see, e.g.,
Castillo v. State, 135 Nev. 126, 442 P.3d 558 (2019), cert. denied U.S.
, 140 S. Ct. 2682 (2020); Jeremias v. State, 134 Nev. 46, 412 P.3d 43(2018).11 The second claim lacks merit because the trial court properly
11Chappe11 asks us to reconsider Jeremias and Castillo but provides
no compelling reason to overrule this precedent. See Armenta-Carpio v.
State, 129 Nev. 531, 535, 306 P.3d 395, 398 (2013). And to the extent he
relies on Hurst as good cause to challenge the constitutionality of Nevada's
capital sentencing statutes on the ground that they allow this court to act
as a sentencer, his contention lacks merit. Nevada's death-penalty statutes
abide by Hurses holding that "[t]he Sixth Amendment requires a jury, not
a judge, to find each fact necessary to impose a sentence of death. A jury's
mere recommendation is not enough." 577 U.S. at 94; see Jeremias, 134
Nev. at 59, 412 P.3d at 54. As we have observed, Hurst does not mention
appellate reweighing or harmless-error review and the United States
Supreme Court has not overruled Clemons v. Mississippi, 494 U.S. 738(1990), which permits both. Castillo, 135 Nev. at 131 n.2, 442 P.3d at 561
n.2. And more recently, the Supreme Court has acknowledged that "Hurst
did not require jury weighing of aggravating and mitigating circumstances?'
McKinney v. Arizona, 589 U.S. „ 140 S. Ct. 702, 708 (2020).
SUPREME COURT
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40) I947A
instructed the jury that "[a] mitigating circumstance itself need not be
agreed to unanimously" but that " [t]he entire jury must agree
unanimously . . . as to whether the aggravating circumstances outweigh the
mitigating circumstances." And as to the final claim, we have previously
approved of the given instruction and have rejected the idea that it
undermines the "right to have the jury consider all mitigating evidence"
when "the jury was also instructed to consider any mitigating factors."
Byford v. State, 116 Nev. 215, 233, 994 P.2d 700, 712 (2000). The trial court
so instructed the jury in the penalty phase retrial. For these reasons, we
conclude the district court did not err in denying this penalty-phase-counsel
claim as procedurally barred without conducting an evidentiary hearing.
Failure to challenge the death penalty
Chappell raises numerous challenges to Nevada's death penalty
scheme and his death sentence. He asserts that the penalty is applied in
an arbitrary and capricious way, clemency is not practically available, and
the total time on death row renders the sentence unconstitutional. He also
contends that Nevada's system of electing judges renders his convictions
and sentence invalid and that his severe mental illness renders him
ineligible for execution.12
12Whi1e Chappell also challenges Nevada's lethal injection protocol,
he acknowledges that his claim "falls outside the scope of a post-conviction
petition for a writ of habeas corpus," McConnell v. State, 125 Nev. 243, 249,
212 P.3d 307, 311 (2009). To the extent Chappell argues this amounts to
an unconstitutional suspension of the writ of habeas corpus, that argument
is raised for the first time on appeal, and we therefore decline to consider it.
See Wade, 105 Nev. at 209 n.3, 772 P.2d at 1293 n.3.
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(0) 1947A 400.
Chappell could have raised these claims on appeal from the
judgment entered after the penalty phase retrial. By not raising them in
that proceeding, Chappell waived these claims and must demonstrate good
cause and actual prejudice to assert them now. NRS 34.810(1)(b). Although
Chappell generically asserted ineffective assistance of second
postconviction counsel to overcome that procedural bar, his petition did not
include any specific allegations about counsel's performance in this respect.
Instead, Chappell focused below and in his appellate briefing on the
substance of the procedurally barred claims. Beyond the deficiencies in
Chappell's pleadings and appellate arguments, the record reveals that
second postconviction counsel did raise some of these challenges to the
death sentence. Chappell IV, 2015 WL 3849122, at *1 n.1 (rejecting
arguments that the death penalty is unconstitutional because state law
does not genuinely narrow death eligibility, the death penalty is cruel and
unusual, and executive clemency is not available). And second
postconviction counsel had an objectively reasonable basis to omit the other,
new arguments against the death penalty, given that "[t]his court has
repeatedly upheld Nevada's death penalty against similar challenges,"
Leonard v. State, 117 Nev. 53, 83, 17 P.3d 397, 416 (2001) (listing cases); see
Nunnery v. State, 127 Nev. 749, 782-83, 263 P.3d 235, 257 (2011) (rejecting
claims that "Nevada's death penalty scheme does not narrow the class of
persons eligible for the death penalty, [that] it constitutes cruel and unusual
punishment, and [that] executive clemency is unavailable); see also
McConnell v. State, 125 Nev. 243, 256, 212 P.3d 307, 316 (2009) (rejecting
claim of bias regarding elected judges who preside over capital proceedings);
Flanagan v. State, 112 Nev. 1409, 1423, 930 P.2d 691, 700 (1996) (rejecting
contention that lengthy confinement before imposition of the death penalty
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amounted to cruel and unusual punishment). Additionally, neither this
court nor the United States Supreme Court has suggested that the severely
mentally ill are ineligible for the death penalty. We therefore conclude the
district court did not err in denying these claims as procedurally barred.
Ineffective assistance of appellate counsel
Chappell claims appellate counsel who represented him in
Chappell III (the direct appeal from the judgment entered after the penalty
phase retrial) should have argued, or did not effectively argue, claims he
raised elsewhere in the third petition. The allegations about appellate
counsel's performance are vague. And Chappell has not sufficiently
asserted that second postconviction counsel unreasonably omitted those
appellate-counsel claims. We therefore conclude the district court did not
err in denying the appellate-counsel claim as procedurally barred without
conducting an evidentiary hearing.
Cumulative error as good cause
Chappell argues that the district court should have considered
several claims that he raised in his prior appeals and petitions so that it
could take into account their cumulative effect alongside the claims
presented in the third petition. This argument fails because the claims
raised in the prior proceedings were rejected on the merits or as
procedurally barred. A petitioner cannot turn to "cumulative erroe in an
effort to relitigate claims that the court has rejected on the merits or to
reach the merits of claims that are procedurally barred. See Rippo, 134 Nev.
at 436, 423 P.3d at 1107.
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Actual innocence
Chappell contends that even if he has not demonstrated cause
and prejudice, he can overcome the procedural bars based on actual
innocence. To do so, Chappell had to "make [ ] a colorable showing [that] he
is actually innocent of the crime or is ineligible for the death penalty."
Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001), abrogated on
other grounds by Rippo, 134 Nev. at 423 n.12, 423 P.3d at 1097 n.12.
Chappell claims he is actually innocent of burglary, robbery,
and murder. To succeed he had to "show that it is more likely than not that
no reasonable juror would have convicted him in light of . . . new evidence."
Berry v. State, 131 Nev. 957, 966, 363 P.3d 1148, 1154 (2015) (internal
quotation marks omitted); see also House v. Bell, 547 U.S. 518, 537 (2006)
("[A] gateway claim requires 'new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.'" (quoting Schlup v.
Delo, 513 U.S. 298, 324 (1995))); Schlup, 513 U.S. at 316 ("Without any new
evidence of innocence, even the existence of a concededly meritorious
constitutional violation is not in itself sufficient to establish a miscarriage
of justice that would allow a habeas court to reach the merits of a barred
claim."). But Chappell does not identify any new evidence; instead, he
focuses on perceived inconsistencies or insufficiencies in the evidence
presented at trial. And Chappell's argument that he cannot be convicted of
an underlying felony and felony murder consistent with the Double
Jeopardy Clause does not implicate factual innocence and is inconsistent
with our caselaw. See Brown v. McDaniel, 130 Nev. 565, 576, 331 P.3d 867,
875 (2014) (holding that a showing of actual innocence must be "of actual
innocence—factual innocence, not legal innocence); Talancon v. State, 102
36
Nev. 294, 297, 721 P.2d 764, 766 (1986) ("[W]e disagree with [appellant's]
contention that double jeopardy prohibits his conviction for both felony-
murder and the underlying felony.").
Chappell next claims he is ineligible for the death penalty.
Specifically, he argues that scant and conflicting evidence supports the sole
aggravating circumstance, there were inconsistencies in the States case,
his counsel was ineffective, the aggravating circumstance also functioned
as an uncharged felony for felony murder such that it did not narrow the
class of defendants eligible for capital punishment, and the State violated
the Confrontation Clause when introducing DNA evidence. Chappell
"points to no new evidence supporting his claim of actual innocence with
respect to the aggravating circumstance," and "his arguments [do not]
present any issue of first impression as to the legal validity of the
aggravating circumstance." Lisle, 131 Nev. at 362, 351 P.3d at 730; see also
Chappell 111, 2019 WL 3571279, at *1-2 (rejecting challenges to the sexual
assault aggravating circumstance on the grounds that it was not supported
by sufficient evidence and was invalid under McConnell v. State, 120 Nev.
1043, 102 P.3d 606 (2004)). Equally unavailing is Chappell's claim that he
is ineligible for the death penalty based on his severe mental illness.
Although he cites caselaw recognizing that juveniles and intellectually
disabled persons are ineligible for the death penalty, see Roper v. Simmons,
543 U.S. 551, 578 (2005); Atkins, 536 U.S. at 321, he cites no authority
holding that the mentally ill are also categorically ineligible for the death
penalty. And neither this court nor the United States Supreme Court has
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recognized such a categorical exemption.° Accordingly, Chappell does not
demonstrate a fundamental miscarriage of justice would occur if his
procedurally barred claims are not considered on the merits. We therefore
conclude the district court did not err in denying this claim.
Statutory laches
Chappell's petition was also subject to dismissal under NRS
34.800. NRS 34.800(1) states that a petition may be dismissed if the delay
in filing the petition prejudices the State in either responding to the petition
or retrying the petitioner. A rebuttable presumption of prejudice arises
when the delay is more than five years from a decision on direct appeal.
NRS 34.800(2). To overcome the presumption of prejudice to the State in
responding to the petition, the petitioner must show that "the petition is
based upon grounds of which the petitioner could not have had knowledge
by the exercise of reasonable diligence before the circumstances prejudicial
to the State occurred." NRS 34.800(1)(a). And to overcome the prejudice to
the State in retrying the petitioner, the petitioner must demonstrate that
"a fundamental miscarriage of justice has occurred in the proceedings
resulting in the judgment of conviction or sentence." NRS 34.800(1)(b); see
also Little v. Warden, 117 Nev. 845, 853, 34 P.3d 540, 545 (2001). A
petitioner may demonstrate a fundamental miscarriage of justice by
presenting new evidence of actual innocence. See Mitchell v. State, 122 Nev.
1269, 1273-74, 149 P.3d 33, 36 (2006) (indicating that a fundamental
miscarriage of justice to overcome the procedural bars to an untimely or
successive petition and to satisfy NRS 34.800(1)(b) can both be satisfied
13We note there are mechanisms by which a person sentenced to death
may challenge the execution of the sentence based on his or her current
mental status. See NRS 176.425; NRS 176.455.
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with a showing of actual innocence); see also Berry, 131 Nev. at 974, 363
P.3d at 1159 (indicating that if a petitioner could not show a fundamental
miscarriage of justice for purposes of an actual-innocence-gateway claim,
his or her petition would also be barred by NRS 34.800).
Here, the State pleaded laches under NRS 34.800, and the
district court found that Chappell had not rebutted the presumption of
prejudice to the State. We agree with the district court's assessment. The
overwhelming majority of the claims in the third petition are based on
grounds of which Chappell could or did have knowledge long before he filed
the third petition. In fact, the district court and this court have considered
and rejected the substance of many claims in the petition in prior
proceedings. And again, Chappell does not allege new evidence
demonstrating his factual innocence. Accordingly, we conclude the district
court did not abuse its discretion in applying statutory laches to Chappell's
petition.
CONCLUSION
Various mandatory procedural bars foreclosed Chappell's
petition, and he did not show good cause and prejudice to overcome those
bars. The untimely claims about first postconviction counsel's performance
could not constitute good cause, and Chappell does not show good cause and
prejudice based on the alleged ineffective assistance of second
postconviction counsel, of which most instances were not adequately
pleaded below or addressed in the appellate briefs. Finally, Chappell did
not demonstrate that the failure to consider his petition would result in a
fundamental miscarriage of justice, and we conclude the district court did
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not abuse its discretion in applying statutory laches. Therefore, we affirm
the district court's order dismissing the petition.
W' J
Cadish
We concur:
, C.J.
Hardesty
1:2.—"to- Acse,.........6 J.
Parraguirre
/41.;.t4Gai J.
Stiglich
ed,1
Piku J.
Pickering
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