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Johnson v. State

Supreme Court of Nevada

October 5, 2017


         Appeal from a district court order denying a postconviction petition for a writ of habeas corpus in a death penalty case. Eighth Judicial District Court, Clark County; Elissa F. Cadish, Judge. Affirmed.

          Christopher R. Oram, Las Vegas, for Appellant.

          Adam Paul Laxalt, Attorney General, Carson City; Steve B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.



          CHERRY, C.J.

         Appellant Donte Johnson was convicted of numerous felonies including multiple counts of first-degree murder and was sentenced to death. On direct appeal, this court affirmed his convictions but reversed his death sentences and remanded with instructions for the district court to conduct a new penalty hearing. At the penalty hearing on remand, a jury returned death sentences for the murder convictions, and the district court entered a judgment of conviction setting forth the death sentences. This court affirmed that judgment on direct appeal. Within one year after remittitur issued from that decision, Johnson filed his first postconviction petition for a writ of habeas corpus in which he challenged both his convictions and the death sentences. At issue in this appeal is whether Johnson had to file a postconviction petition within one year after remittitur issued on direct appeal from his original judgment of conviction where the direct appeal resulted in reversal and remand for another penalty hearing such that his sentences were unsettled. We hold that when this court reverses a death sentence on direct appeal and remands for a new penalty hearing, there no longer is a final judgment that triggers the one-year period set forth in NRS 34.726(1) for filing a postconviction petition for a writ of habeas corpus. Johnson's petition therefore was timely filed. Because the district court entertained and denied the petition on the merits and we conclude that the district court did not err, we affirm.


         In August 1998, Johnson bound the hands and feet of four young men, robbed them, and killed them by shooting them in the head, execution style. The evidence of his guilt was overwhelming: his DNA and fingerprints were found at the crime scene, the DNA of one of the victims was found on a pair of his pants, he was in possession of the victims' property, and several witnesses testified that he confessed. After a jury trial, Johnson was convicted of four counts each of first-degree murder, first-degree kidnapping, and robbery (all with the use of a deadly weapon), as well as one count of burglary while in possession of a firearm. The jury was unable, however, to reach an agreement as to the penalty to impose for the murders. Thus, a three-judge panel was appointed and, after a second penalty hearing, imposed death sentences for each murder.

         This court affirmed Johnson's convictions on direct appeal but vacated his death sentences upon concluding that the three-judge panel procedure was unconstitutional. Johnson v. State, 118 Nev. 787, 799, 59 P.3d 450, 458 (2002) (Johnson I), overruled on other grounds by Nunnery v. State, 127 Nev. 749, 263 P.3d 235 (2011). After a third penalty hearing, a jury found that the State had proven the single aggravating circumstance alleged-that Johnson had been convicted of more than one murder in the proceeding-beyond a reasonable doubt, and that there were no mitigating circumstances sufficient to outweigh the aggravating circumstance. The jury unanimously imposed death sentences for each murder. This court affirmed the sentences on direct appeal from the newly entered judgment of conviction. Johnson v. State, 122 Nev. 1344, 1360, 148 P.3d 767, 778 (2006) (Johnson II).

         Johnson filed a postconviction petition for a writ of habeas corpus within one year after remittitur from Johnson II. In his petition and supplemental petitions, he challenged counsel's performances during the trial in 2000 and the penalty hearing on remand in 2005, as well as the appeals in Johnson I and Johnson II. The State argued that the ineffective-assistance claims relating to the 2000 trial and Johnson I were barred pursuant to NRS 34.726(1) because they were not raised within one year after remittitur issued from Johnson I. After supplemental briefing and argument on the issue, the district court concluded that Johnson's judgment of conviction was not final until this court affirmed his death sentences on direct appeal in Johnson II, and therefore, the one-year period in NRS 34.726(1) did not begin until remittitur issued from that decision. After an evidentiary hearing, the district court denied Johnson's claims on their merits. This appeal followed.


         Nevada's postconviction scheme contemplates filing one petition from a final judgment of conviction

         NRS 34.726(1) provides that a postconviction petition for a writ of habeas corpus "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." We have previously held that NRS 34.726(1) contemplates a final judgment to trigger the one-year period. See Whitehead v. State, 128 Nev. 259, 285 P.3d 1053 (2012). Johnson and the State do not dispute this, but they disagree as to when his convictions became final for the purposes of the statute. The State argues, as it did below, that because this court affirmed Johnson's convictions and only reversed his death sentences in Johnson I, the one-year period for challenging the convictions in a postconviction proceeding began when remittitur issued from that decision. Johnson argues that the statutory scheme envisions the filing of a single petition challenging the validity of a petitioner's convictions and sentences. And since the judgment of conviction was not final until the sentences for the murder convictions were settled on remand following Johnson I, he argues that the one-year period did not begin until remittitur issued from Johnson II. We conclude that Johnson's position is supported by the statute and the legislative intent behind the statutory postconviction scheme, as well as reasoned policy concerns.

          While this is an issue of first impression, our decision in Whitehead provides some guidance. There, the sentencing court entered a judgment of conviction that set forth the sentence for each offense but indicated that restitution would be determined at a later date. 128 Nev. at 261, 285 P.3d at 1054. Months later, the court held a restitution hearing and entered an amended judgment of conviction that included the restitution amount. Id. The defendant did not appeal the judgment of conviction but filed a postconviction petition. Id. The district court denied the petition as untimely under NRS 34.726(1) because the defendant had filed the petition more than one year after entry of the original judgment of conviction. Id. at 261-62, 285 P.3d at 1054. This court reversed, concluding that the original judgment of conviction was not a Final judgment for the purposes of NRS 34.726(1) because it imposed restitution but did not specify the amount as required by NRS 176.105(1) and therefore the original judgment was "not sufficient to trigger the one-year period under NRS 34.726 for filing a postconviction petition." Id. at 262-63, 285 P.3d at 1055.

         This case is analogous. After this court vacated the death sentences on direct appeal in Johnson I, there was no judgment providing the sentences for Johnson's murder convictions as required by NRS 176.105. Because the sentences for the murders were not determined and a new judgment of conviction setting forth those sentences was not filed until after the third penalty hearing, the one-year period set forth in NRS 34.726(1) did not trigger until remittitur issued on direct appeal from the judgment of conviction entered after the new penalty hearing.

         We find further support in the clear intent behind Nevada's statutory postconviction scheme. See State Office of the Attorney Gen. v. Justice Court of Las Vegas Twp., 133 Nev., Adv. Op. 12, 392 P.3d 170, 173 (2017) (explaining that a statute's intent may be "ascertained by examining the context and language of the statute as a whole" (quoting Karcher Firestopping v. Meadow Valley Contractors, Inc., 125 Nev. 111, 113, 204 P.3d 1262, 1263 (2009))). As we have explained in prior opinions, Nevada's current postconviction statutes are the result of decades of legislative efforts to craft a system that provides petitioners "one time through the system absent extraordinary circumstances" and "evinces intolerance toward perpetual filing of petitions for relief, which clogs the court system and undermines the finality of convictions." Pellegrini v. State, 117 Nev. 860, 875, 34 P.3d 519, 529 (2001); see Whitehead, 128 Nev. at 262, 285 P.3d at 1055. That intent is particularly clear in cases where the petitioner has been sentenced to death. In those cases, the Legislature had directed that "[t]he court shall inform the petitioner and the petitioner's counsel that all claims which challenge the conviction or imposition of the sentence must be joined in a single petition and that any matter not included in the petition will not be considered in a subsequent proceeding." NRS 34.820(4). While we agree with the State that we should avoid endorsing any rule that would allow criminal proceedings to linger in perpetuity, the State's position, which would require bifurcated, piecemeal postconviction litigation, would exacerbate this issue and undermine the Legislature's expressed goals in enacting the postconviction habeas provisions set forth in NRS Chapter 34.

         What is more, the State's position would be unworkable in practice, particularly in capital cases. In those cases, a petitioner is entitled to the appointment of counsel in the first postconviction proceeding, NRS 34.820(1)(a), and to the effective assistance of that counsel, Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997) (providing that a postconviction "petitioner who has counsel appointed by statutory mandate is entitled to effective assistance of that counsel"). But the approach urged by the State raises questions regarding whether those rules would apply to a petition challenging the validity of the petitioner's conviction where the death sentence has been vacated and there is a pending penalty hearing to determine the sentence, or whether the rules that govern noncapital cases would apply such that the district court would have discretion to appoint postconviction counsel under NRS 34.750(1) even though the petitioner might later be sentenced to death (as was the case here). As these questions suggest, accepting the State's position would introduce the type of confusion and inefficiency that the current postconviction scheme was enacted to avoid.[1]

          In sum, we agree with the district court that Johnson's ineffective-assistance-of-counsel claims relating to his 2000 and 2005 trials and the direct appeals from those judgments of conviction were not barred by NRS 34.726(1). We therefore turn to whether the district court appropriately denied the ineffective-assistance claims, giving deference to its factual findings but reviewing its legal conclusions de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).[2]

          The district court correctly denied the claims raised in Johnson's petition

         Our focus is on the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to demonstrate that counsel's performance fell below an objective standard of reasonableness (deficient performance) and a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different (prejudice). See also Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the Strickland test). With respect to the prejudice prong, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. The same test also applies to appellate-counsel claims, Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1113 (1996), but with a different gloss given the natural limitations of the appellate process that force an attorney to make strategic decisions regarding which claims to argue and which to ignore, Knox v. United States, 400 F.3d 519, 521 (7th Cir. 2005) ("Lawyers must curtail the number of issues they present, not only because [appellate] briefs are limited in length but also because the more issues a brief presents the less attention each receives, and thin presentation may submerge or forfeit a point.").

         The Strickland test is familiar, but certain points bear emphasis. First, an attorney is not constitutionally deficient simply because another attorney would have taken a different approach. Strickland, 466 U.S. at 689 ("Even the best criminal defense attorneys would not defend a particular client in the same way."). Instead, the question is whether a petitioner's counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 689; see also Siripongs v. Calderon, 133 F.3d 732, 736-37 (9th Cir. 1998). In the context of appellate counsel, this means that an attorney is not ineffective for omitting a particular claim-even a claim supported by existing law-to focus on claims with a better chance of success. Jones v. Barnes, 463 U.S. 745, 751-52 (1983) ("Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues, "); Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989) (recognizing that "appellate counsel is most effective when she does not raise every conceivable issue on appeal"). "Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Smith v. Robbins, 528 U.S. 259, 288 (2000) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)); 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.").

         Second, a reviewing court begins with the presumption that counsel performed effectively. Strickland, 466 U.S. at 689-90. To overcome this presumption, a petitioner must do more than baldly assert that his attorney could have, or should have, acted differently. Evans v. State, 117 Nev. 609, 647, 28 P.3d 498, 523 (2001) (explaining that this court will reject conclusory ineffective-assistance claims), overruled on other grounds by Lisle v. State, 131 Nev., Adv. Op. 39 n.5, 351 P.3d 725, 732 n.5 (2015). Instead, he must specifically explain how his attorney's performance was objectively unreasonable and how that deficient performance undermines confidence in the outcome of the proceeding sufficient to establish prejudice.

         With these key points in mind, we turn to Johnson's ineffective-assistance claims. Those claims challenge the performance of counsel at the 2000 trial, the 2005 penalty hearing, and both direct appeals (Johnson I and Johnson II).[3]

         Johnson failed to demonstrate that he received ineffective assistance of counsel at the 2000 jury trial or in the related appeal (Johnson I)

         Johnson argues that counsel provided ineffective assistance during his 2000 jury trial ...

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