Powell (Kitrich) v. State (Death Penalty-Pc)

IN THE SUPREME COURT OF THE STATE OF NEVADA
KITRICH A. POWELL, No. 53112
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. JUN 2 4 2016
TRACIE K LINDEMAN
CLEFt F SUPREME COURT
ORDER OF AFFIRMANCE DEPUTY CLERK
This is an appeal from an order of the district court dismissing
appellant Kitrich Powell's postconviction petition for a writ of habeas
corpus. Eighth Judicial District Court, Clark County; Kenneth C. Cory,
Judge.
Based on evidence that Powell subjected four-year-old Melea
Allen to repeated abuse which resulted in a variety of injuries, one of
which caused her death, a jury convicted him of first-degree murder and
sentenced him to death. This court affirmed the conviction and sentence.
Powell v. State, 108 Nev. 700, 838 P.2d 921 (1992), vacated, 511 U.S. 79
(1994), remanded to Powell v. State, 113 Nev. 41, 930 P.2d 1123 (1997).
Powell unsuccessfully sought relief in a prior postconviction petition. See
State v. Powell, Docket No. 39878 (Order Affirming in Part, Reversing in
Part and Remanding, August 22, 2003); State v. Powell, 122 Nev. 751, 138
P.3d 453 (2006). On February 15, 2008, Powell filed the instant
postconviction petition in the district court. The district court dismissed
the petition as procedurally barred.' This appeal followed.
'Powell contends that the district court failed to adequately address
all his claims in its findings of fact and conclusions of law. We disagree.
The order explains the district court's basis for denying relief with
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Procedural bars
Powell's petition is subject to several procedural bars. First, to
the extent Powell alleged trial error, those claims were appropriate for
direct appeal and thus subject to dismissal for waiver pursuant to NRS
34.810(1)(b)(2). 2 Second, the petition was untimely as it was filed over one
year after this court issued its remittitur on direct appeal. NRS 34.726(1).
Third, to the extent that the petition raised new claims, this petition
constituted an abuse of the writ and to the extent that it raised claims
that had been litigated in the first petition, the petition is successive.
NRS 34.810(2). To overcome these procedural bars, Powell had to
demonstrate good cause and prejudice. See NRS 34.726(1); NRS
34.810(1)(b), (3).
Ineffective assistance of prior counsel
Powell contends that the district court erred in dismissing his
petition as procedurally barred because the ineffective assistance of
postconviction counsel provided him with good cause to excuse the
procedural bars. 3 When postconviction counsel is appointed pursuant to a
2 Some of the trial-error claims were previously rejected by this court
on the merits and thus further consideration of them is barred by the
doctrine of the law of the case. Hall ix State, 91 Nev. 314, 315-16, 535
P.2d 797, 798-99 (1975).
3 Powell argues that the district court erred by relying upon
procedural default rules because this court applies them inconsistently
and in its discretion. Because this court has repeatedly rejected this
argument, see, e.g., State v. Eighth Judicial Dist. Court (Riker), 121 Nev.
225, 236, 112 P.3d 1070, 1077 (2005); Pellegrini v. State, 117 Nev. 860,
886, 34 P.3d 519, 536 (2001), we reject it here as well. Powell also asserts
that any delay in filing the instant petition was not his fault. NRS
34.726(1) requires "a petitioner [to] 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
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statutory mandate, the petitioner is entitled to the effective assistance of
that counsel," and the ineffective assistance of that counsel may be good
cause for a successive petition. Crump V. Warden, 113 Nev. 293, 303, 934
P.2d 247, 253 (1997). "Mo constitute adequate• cause, the ineffective
assistance of counsel claim itself must not be procedurally defaulted."
Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003); see also
Edward v. Carpenter, 529 U.S. 446, 452-53 (2000) (concluding that claim
of ineffective assistance of counsel cannot serve as cause for another
procedurally defaulted claim where ineffective-assistance claim is also
subject to procedural default). In other words, a petition must
demonstrate cause for raising the ineffective-assistance-of-counsel claims
in an untimely fashion. See NRS 34.726(1); Pellegrini, 117 Nev. at 869-70,
34 P.3d at 526 (holding that the time bar of NRS 34.726 applies to
successive petitions).
Powell failed to explain how postconviction counsel's alleged
deficiencies precluded him from filing this petition until roughly 18
months after this court resolved his first postconviction petition. While he
was litigating his federal petition during this time, that does not amount
to good cause. See Colley v. State, 105 Nev. 235, 773 P.2d 1229 (1989),
superceded by statute as stated in State 1). Huebler, 128 Nev. 192, 275 P.3d
91 (2012). Powell suggests that his claim that first postconviction counsel
...continued
503, 506 (2003). This language contemplates that the delay in filing a
petition must be caused by a circumstance not within the control of the
defense team as a whole, not solely the defendant. Considering the nature
and purpose of legal representation, we conclude that Powell's view that
NRS 34.726(1) contemplates only delay personally caused by a petitioner
is untenable. Therefore, the district court did not err in rejecting this
claim of good cause.
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was ineffective for failing to investigate the victim's cause of death was not
reasonably available until he obtained the declarations from expert
witnesses, including one from the medical examiner who testified at trial,
which acknowledge uncertainty regarding the conclusions presented at
trial. However, Powell failed to explain the nearly 8-month delay in
obtaining the first declaration and the subsequent 10-month delay in
obtaining the second declaration, which resulted in the 18-month delay in
filing his petition. Powell did not allege that any external impediment to
the defense prevented him from obtaining both declarations earlier. The
18-month delay was not reasonable. See Hathaway, 119 Nev. at 252, 71
P.3d at 506; see also Rippo v. State, 132 Nev., Adv. Op. 11, at 19 P.3d
(2016) (providing that claims of ineffective assistance of
postconviction counsel are timely if raised within one year after the
issuance of remittitur on the first postconviction appeal). As the
postconviction counsel claim was not asserted in a timely fashion, the
district court did not err in rejecting it as good cause for the untimely and
successive petition.
Fundamental miscarriage of justice
Powell argues that the district court erred in rejecting his
gateway claims of actual innocence of first-degree murder and of the death
penalty. When a petitioner cannot demonstrate good cause, the district
court may nonetheless excuse a procedural bar if the petitioner
demonstrates that failure to consider the petition would result in a
fundamental miscarriage of justice. Pellegrini, 117 Nev. at 887, 34 P.3d at
537.
Actual innocence of first-degree murder
Powell argues that the district court erred in concluding that
he failed to demonstrate that he is actually innocent of first-degree
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murder. He contends that the declarations of expert witnesses concerning
Melea's cause of death make it impossible to conclude that she died as a
result of abuse rather than an accidental fall. We conclude that this
argument lacks merit.
A fundamental miscarriage of justice requires "a colorable
showing" that the petitioner is "actually innocent of the crime." Id. This
requires that the petitioner present new evidence of his innocence. See
House v. Bell, 547 U.S. 518, 537 (2006) ("[A] gateway claim requires 'new
reliable evidence—whether it is 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."). When claiming a
fundamental miscarriage of justice based on actual innocence, the
petitioner "must show that it is more likely than not that no reasonable
juror would have convicted him absent a constitutional violation."
Pellegrini, 117 Nev. at 887, 34 P.3d at 537. In this context, "actual
innocence means factual innocence, not mere legal insufficiency." Mitchell
v. State, 122 Nev. 1269, 1273-74, 149 P.3d 33, 36 (2006) (internal
quotation marks and alterations omitted). In deciding whether the
petitioner has made that showing, the court must consider the petitioner's
claimed innocence in light of all the evidence—both the new and the old.
See Berry v. State, 131 Nev., Adv. Op. 96, 363 P.3d 1148, 1155-56 (2015).
The new evidence consists of two declarations from medical
experts, including the medical examiner who testified at trial, that
recognize the possibility that Melea died as the result of a fall from
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Powell's shoulders. However, the medical examiner's opinion was not the
only evidence produced at trial that Powell's abuse caused Melea's injuries
and death. Two other doctors opined at trial that her injuries were not
caused by accidents. Further, all the medical experts acknowledged at
trial that there was some doubt regarding their respective conclusions, so
the doubt asserted in the postconviction petition is not entirely new. In
addition to the medical testimony, Melea's sister testified that Powell
sought exculpatory evidence from her and later threatened her and during
that threat, admitted that he killed Melea. Considering the total record,
Powell has not demonstrated that the district court erred in concluding
that he could not have demonstrated that the new evidence was so
persuasive that no reasonable juror would have convicted him in light of
all the evidence.
Actual innocence of the death penalty
Powell argues that the district court erred in rejecting his
gateway claim that new mitigation evidence demonstrates that he is
actually innocent of the death penalty. We disagree. When claiming a
fundamental miscarriage of justice based on ineligibility for the death
penalty, the petitioner "must show by clear and convincing evidence that,
but for a constitutional error, no reasonable juror would have found him
death eligible." Pellegrini, 117 Nev. at 887, 34 P.3d at 537. Because
Powell does not assert that any aggravating circumstance is invalid, he
failed to demonstrate that he was actually innocent of the death penalty.
See Lisle v. State, 131 Nev., Adv. Op. 39, 351 P.3d 725, 732 (2015) (noting
that gateway claim that petitioner is actually innocent of the death
penalty must focus on the elements of the crime and the aggravating
circumstances rather than new mitigation evidence). Therefore, the
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district court did not err in rejecting this effort to avoid the procedural
bars. 4
Having considered Powell's contentions and concluded that
they lack merit, we
ORDER the judgment of the district court AFFIRMED.
MA _3- cs- cC
Parraguirre u
titic ,J.
Douglas
Gibbons
P&utlip
Pickering
CHERRY, J., with whom, SAITTA, J., agrees, dissenting:
The majority concludes that Powell's postconviction-counsel
claim was untimely because it was raised over one year after the final
disposition of his first postconviction petition. I disagree. In my view the
appropriate test is one of reasonableness that must be determined on a
case-by-case basis considering all of the circumstances contributing to the
delay rather than a bright-line rule that is not clearly required by NRS
4 The
State also pleaded laches under NRS 34.800. Powell failed to
show that he was reasonably diligent in discovering the facts underlying
the claims and therefore could not overcome the presumption of prejudice
to the State in litigating the petition. See NRS 34.800(1)(a). As Powell
failed to demonstrate that the failure to consider his claims would result
in a fundamental miscarriage of justice, he failed to overcome the
presumed prejudice to the State in retrying him. See NRS 34.800(1)(b).
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34.726. See Rippo v. State, 132 Nev., Adv. Op. 11, 368 P.3d 729, 756
(2016) (Cherry, J., dissenting). Powell's claim of ineffective assistance of
postconviction counsel depended on evidence from two independent
medical experts, Dr. Giles Green and Dr. Karen Griest. Although the
petition was promptly filed after Powell received Dr. Green's declaration,
the majority faults Powell for the delay in obtaining the declarations.
That strikes me as unfair. The experts had to review testimony, other
trial evidence, and the medical literature on childhood injuries.
Regardless of Powell's diligence in developing this claim, when he could
file the claim was ultimately within the control of these witnesses.
Considering the nature of the evidence and literature that the experts had
to review and the reasonable assumption that Powell's case was not the
sole focus of their professional schedule, I would remand this matter for
the district court to conduct an evidentiary hearing on whether the delay
was reasonable.
Assuming that the delay was reasonable, I believe that Powell
made sufficient allegations to warrant an evidentiary hearing to
determine whether his postconviction-counsel claim has merit and
therefore satisfies the prejudice prong of the good-cause showing required
under NRS 34.726 and both the good-cause and prejudice showings
required under NRS 34.810(1)(b) and (2). See id. at 740-42 (majority
opinion). At trial, the medical examiner, Dr. Green, testified that Melea's
death was a homicide. He opined that, based on the presence of injuries of
various ages, Melea's injuries were more than the result of usual
childhood or accidental activity. In his petition, Powell alleged that new
expert evidence called this conclusion, the very crux of the charges against
him, into substantial doubt. Dr. Griest, after reviewing medical literature,
opined that Melea's injuries were consistent with a fall. Further, the
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medical testimony at trial grossly misrepresented the available literature.
After reviewing Dr. Griest's declaration, Dr. Green acknowledged that a
fall could have caused Melea's injuries. Further, he "cannot state, within
any reasonable degree of medical certainty, that Mr. Powell intentionally
caused Melea Allen's death[,]" or "could not determine the degree of Mr.
Powell's culpability." In my view, this evidence casts substantial doubt on
the testimony that Powell murdered Melea, or that her death was even a
homicide at all, and could be sufficient to meet the prejudice prong of the
ineffective-assistance claims provided that Powell is able to demonstrate
that postconviction counsel was deficient for failing to raise an ineffective
assistance of trial counsel claim based on the failure to investigate and
present this evidence. Strickland v. Washington, 466 U.S. 668, 687-88
(1984).
I also disagree with the majority's conclusion that the district
court did not err in denying Powell's claim that he was actually innocent of
the death penalty based on new mitigating evidence. In Lisle v. State, 131
Nev., Adv. Op. 39, 351 P.3d 725, 732 (2015), a majority of this court held
that a gateway claim of actual innocence of the death penalty must focus
on the elements of the crime and the aggravating circumstances rather
than new mitigation evidence. I disagreed with that decision as it fails to
appreciate the plain language of the statute, id. at 734-36 (Cherry and
Saitta, JJ., dissenting), and accordingly, disagree with the decision
reached in this case for the same reason. Here, Powell presented
mitigating evidence detailing the horrendous abuse his father, an
alcoholic, and mother, a paranoid schizophrenic, visited upon Powell and
his siblings. Powell was once thrown down stairs and his mother
attempted to stab his sister. Although they eventually moved to their
grandmother's home, she beat the children with a cane and forced them to
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eat cigarette butts. Psychiatric records indicated that Powell's in utero
exposure to drugs and his childhood concussions resulted in neurological
deficits. He was paranoid, prone to anger, and suffered depression.
Powell's neurological impairments, coupled with his tumultuous
childhood, gave rise to his aggressive and disinhibited personality If
credible, the new mitigation material is clear and convincing evidence that
Powell is actually innocent of the death penalty. See Pellegrini v. State,
117 Nev. 860, 887, 34 P.3d 519, 537 (2001) (observing the standard for a
claim of actual innocence). Accordingly, I would reverse and remand for
an evidentiary hearing to determine whether Powell could demonstrate
that no reasonable juror would have found him death eligible had he
presented the significant evidence his abusive upbringing and psychiatric
conditions.
J.
Cherry
J.
Saitta
cc: Eighth Judicial District Court
Federal Public Defender/Las Vegas
Clark County District Attorney
Attorney General/Las Vegas
Eighth District Court Clerk
Kitrich A. Powell
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