Appeal from a district court order dismissing a post-conviction petition for a writ of habeas corpus in a death penalty case. Eighth Judicial District Court, Clark County; Michael Villani, Judge.
Rene L. Valladares, Federal Public Defender, and Michael Pescetta, David Anthony, and Albert Sieber, Assistant Federal Public Defenders, Las Vegas, for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.
Parraguirre, J.. We concur, Hardesty, C.J., Douglas, J., Gibbons, J., Pickering, J.; CHERRY and SAITTA, JJ., dissenting.
BEFORE THE COURT EN BANC.
A jury found appellant Kevin James Lisle guilty of first-degree murder with the use of a deadly weapon in the drive-by shooting of Kip Logan and sentenced him to death. Under Nevada law, Lisle may collaterally challenge his conviction and sentence in a post-conviction petition for a writ of habeas corpus. There are two procedural bars to filing a petition that are relevant here: the petition must be filed within a certain period of time unless the petitioner shows cause for his delay; and the petitioner is limited to one petition absent a demonstration of good cause and actual prejudice. Where a petitioner cannot demonstrate cause and prejudice, we have recognized an exception to these bars against untimely and successive petitions: the petitioner must show that the failure to consider the petition on its merits would result in a fundamental miscarriage of justice, meaning the imprisonment of a person who is actually innocent of the offense for which he was convicted or the execution of a person who is actually innocent of the death penalty.
Lisle filed a petition that was untimely and successive. The district court dismissed the petition on the ground that it was procedurally barred. In this appeal from the district court's order, we must determine whether a petitioner can demonstrate that he is actually innocent of the death penalty by presenting new evidence of mitigating circumstances. We hold that he cannot. In the context of a challenge to a death sentence, the actual-innocence exception to the procedural bars is focused on the elements of first-degree murder and the aggravating circumstances, not mitigating circumstances, because it is the former that determine death eligibility. Because we conclude that Lisle's claims do not warrant relief, we affirm the district court's order dismissing his petition.
FACTS AND PROCEDURAL HISTORY
The facts underlying Lisle's conviction are set forth in detail in this court's 1997 opinion affirming Lisle's conviction and sentence. Lisle v. State, 113 Nev. 540, 937 P.2d 473 (1997), decision clarified on denial of reh'g, 114 Nev. 221, 954 P.2d 744 (1998). In this opinion, we recount only those facts necessary to an understanding of the issues presented.
On the evening of October 22, 1994, John Melcher was driving on a Las Vegas freeway and pulled his van alongside a Mustang driven by Kip Logan. Lisle, the front passenger in Melcher's van, shot and killed Logan. Adam Evans was in the van's back seat, and he and Melcher testified against Lisle at trial. The jury found Lisle guilty of first-degree murder with the use of a deadly weapon, found a single aggravating circumstance (the murder was committed by a person
who knowingly created a great risk of death to more than one person), found " other mitigating circumstances," and concluded that the mitigating circumstances did not outweigh the aggravating circumstance. The jury sentenced Lisle to death. This court affirmed the judgment and sentence, and the remittitur issued on November 16, 1998.
Lisle then filed a timely post-conviction petition for a writ of habeas corpus, and the district court appointed counsel to supplement and litigate the petition. The district court denied the petition, and this court affirmed the district court's order. Lisle v. State, 118 Nev. 1119, 106 P.3d 1236 (Order of Affirmance, August 21, 2002). The remittitur from that appeal issued on September 17, 2002. Lisle filed his second post-conviction habeas petition on August 25, 2008, claiming that he received ineffective assistance of trial, appellate, and post-conviction counsel. The district court dismissed the petition as procedurally barred, and this appeal followed.
Lisle's petition was procedurally barred. The petition was untimely because it was filed nearly 10 years after the remittitur issued from the appeal of his judgment of conviction. See NRS 34.726(1). The petition was also successive where it raised claims that could have been brought in earlier proceedings, and an abuse of the writ where it raised claims new and different from those in his first post-conviction habeas petition. See NRS 34.810(1)(b)(2); NRS 34.810(2). To excuse the procedural bars so that his petition would be considered on the merits, Lisle raised several claims alleging good cause and prejudice. See NRS 34.726(1); NRS 34.810(1)(b), (3); see also State v. Huebler, 128 Nev.Adv.Rep. 19, 275 P.3d 91, 94-95 (2012) (explaining that " good cause for delay" under NRS 34.726(1) requires that the delay is not the petitioner's fault and that the petitioner will be unduly prejudiced), cert. denied, 568 U.S. ___, 133 S.Ct. 988, 184 L.Ed.2d 767 (2013). He also argued that, in the absence of good cause, he was actually innocent of the crime and of the death penalty such that the failure to consider the merits of his petition would result in a fundamental miscarriage of ...