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Lisle v. Filson

United States District Court, D. Nevada

July 2, 2018

KEVIN JAMES LISLE, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

          JAMES C. MAHAN, UNITE D STATES DISTRICT JUDGE.

         I. Introduction

         Before the Court, in this capital habeas corpus action, are a motion to dismiss filed by respondents, and a motion for leave to conduct discovery, motion for medical examination and site inspection, and motion for evidentiary hearing filed by the petitioner. The Court will grant the motion to dismiss in part and deny it in part, and will deny the petitioner's motions.

         II. Background

         This action is brought pursuant to 28 U.S.C. § 2254, by Kevin James Lisle, a Nevada prisoner sentenced to death. Lisle's conviction and death sentence, at issue in this case, are for the murder of Kip Logan in Las Vegas on October 22, 1994. In its opinion on Lisle's direct appeal, the Nevada Supreme Court described the factual background of the case as follows:

On the evening of October 22, 1994, Joey Gonzales and Kip Logan bought two beers and then headed towards Logan's girlfriend's house. As Logan drove on U.S. Interstate Highway 95, a white van approached his Mustang. Gonzales observed the van's front passenger stick his head and arm out of the window and scream at them. Gonzales told Logan, “Let's just go, ” and took a swig of his beer. At that moment, Gonzales heard the driver-side window break. He turned and saw Logan slumped over the steering wheel. Gonzales grabbed the steering wheel and stopped the Mustang.
Metro police officer Steve Borden and his partner, Mike Carreia, arrived as Gonzales was pulling Logan out of the Mustang. Officer Borden saw that Logan had been shot in the head. He checked Logan for vital signs, and saw none.
Gonzales told Borden that he saw three males in an Aerostar-type van, Hispanic or white, with shaved heads. Gonzales said that the shooter had a goatee, and that the back-seat passenger appeared more white.
On the next day, a medical examiner determined that Logan had died of a gunshot wound to his head. Fragments of a bullet consistent with a .357 Magnum were removed from Logan's head.
On the same day, John Melcher was arrested. He denied being in the van on the previous night.
On October 27, 1994, Anthony Evans was arrested. That evening, he gave a statement that Melcher was in the front passenger seat of the van, and that the shot came from the front passenger side. He said that after the shooting, “Shotgun” (Melcher) disposed of the gun.
On October 31, 1994, the defendant, Kevin James Lisle, was arrested.
On April 6, 1995, Evans agreed to testify against Lisle and Melcher in exchange for the State reducing his charges to accessory after the fact of murder. Evans agreed to testify both in the Logan case and in another homicide case involving Lisle (“the Lusch case”). On May 23, 1995, Evans was released from custody.
Sometime after Evans agreed to cooperate with the State, Melcher sought the same deal. On July 24, 1995, he was interviewed by detectives. His charges were later reduced to accessory after the fact of murder. His case was transferred to juvenile court and he received probation.
On October 9, 1995, an amended indictment was filed charging Lisle with one count of murder with use of a deadly weapon and one count of attempted murder with use of a deadly weapon. A jury trial commenced on October 16, 1995.
Guilt phase
At trial, Evans testified that on the night of October 22, 1994, he, Melcher, and Lisle were at Larry Prince's apartment. Evans, Melcher, and Lisle decided to borrow a white van from Prince, and Melcher picked up the keys to the van. As Lisle got into the front passenger seat of the van he said, “I hope nobody messes with us tonight, because I'm drunk and I do crazy things when I'm drunk.” Lisle was holding a .357 handgun.
Evans testified that Melcher drove the van, Lisle was in the front passenger seat, and he was in the rear passenger seat. Lisle was hanging out the window and throwing gang signs at cars. Evans heard Lisle tell Melcher, “speed up, ” and the van pulled up to a Mustang. Evans observed Lisle pull out his gun and point it out of the window, and then Evans heard a gunshot and saw sparks fly. Evans then saw the Mustang pull over to the side of the road, saw that the Mustang's driver-side window was shattered, and saw the driver laying against the steering wheel. Evans stated that he did not know whether there was anyone else in the Mustang besides the driver. Evans testified that after the gunshot, Lisle directed Melcher to get off the freeway and to stop the van. Lisle then disposed of the gun.
On redirect, Evans testified that he was a member of the North Hollywood Boyz, and Lisle was a member of the Westside Lompoc, both California gangs. He stated that he had known Lisle for two years and Melcher for two months. He stated that Melcher was not a gang member. Evans said that gang members have a rule “not to tell on none of your friends.” He testified that he was afraid of Lisle.
Prince testified that while living in Las Vegas, he became familiar with Evans, Melcher and Lisle. He stated that he had rented a van for their use, and that Lisle drove it more than anyone else. Prince admitted that he testified in this case pursuant to a plea bargain on a drug possession charge.
The grand jury testimony of Tom Foster was read. On the night of the shooting, Foster observed three males exit from a white van. Foster testified that he was positive that Lisle was the driver of the van. Foster identified Melcher as a passenger.
Detective Diane Falvey testified that on the day of Evans' arrest he had indicated that Melcher was the shooter, but she suspected he was not giving the right information. Detective Donald Tremel testified that when Melcher was arrested, Melcher told him that Lisle was driving the van.
Melcher testified that he had no gang affiliation. He stated that he did things for Lisle, such as “drive the car around, ” in exchange for clothes and money. Melcher stated that on the evening of October 22, 1994, he was driving the white van on the freeway.
Melcher testified that while he was in custody, he saw Lisle at the detention center. Lisle told him “that he looked Logan in the eye before he killed him and he enjoys it and that after I do my first one I will see what he is talking about.” Lisle also told him that the police believed Melcher was the shooter, and told him to take the blame for the shooting. Melcher stated that he was aware of the gang code of conduct, “if you snitch, you die, ” and that he had been afraid of retaliation.
Melcher also testified that he could not grow a beard.
Sophia Martinez testified that at approximately 3:00 a.m. on October 23, 1994, Lisle told her that he had done something crazy, and to watch the news. At that time, Lisle had a mustache but no hair on his chin. She had never seen Melcher with a mustache or a goatee. She saw Lisle with a shaved face later that day.
Christopher Barnes, testifying for the defense, stated that after hearing about the shooting he contacted the police, because he had been assaulted by individuals of a similar description. He identified a photograph of Melcher as one of his assailants. However, he acknowledged that although he had believed his assailant had lighter skin than himself, Melcher's skin was darker than his. He was shown a photo of Lisle but did not recognize him as having been involved in the incident. He described his assailant as having “a little bit of rough around the chin and the moustache, ” what he would call a goatee.
David Hermanson, Melcher's cellmate, stated that Melcher had admitted to him that he was trying to shoot the passenger but missed and hit the driver.
On October 20, 1995, the jury returned a verdict of guilty for both the murder and the attempted murder charges.

         Penalty phase

On October 24, 1995, the State filed its intent to seek the death penalty based on the aggravating circumstance that the murder was committed by a person who knowingly created a risk of death to more than one person by means of a weapon, device, or course of action that would normally be hazardous to the lives of more than one person. The district court granted Lisle's motion for a mistrial on attempted murder, but denied a motion for mistrial for the murder charge.
During the penalty phase, several witnesses implicated Lisle in the Lusch case.
On October 26, 1995, the jury returned a sentence of death. On February 1, 1996, the judgment of conviction and a warrant of execution were filed.

Lisle v. State, 113 Nev. 540, 544-47, 937 P.2d 473, 475-77 (1997) (order filed as Exhibit 73 (ECF No. 219-12)).

         In a separate case pending in this Court, No. 2:03-cv-1006-MMD-CWH, Lisle seeks relief with respect to his conviction and death sentence for the Lusch murder.

         In this case, regarding the Logan murder, the judgment of conviction was entered on February 1, 1996. See Judgment of Conviction, Exhibit 67 (ECF No. 219-6). Lisle appealed to the Nevada Supreme Court, and the Nevada Supreme Court affirmed on April 24, 1997. See Appellant's Amended Opening Brief, Exhibit 70 (ECF No. 219-9); see also Lisle, 113 Nev. 540, 937 P.2d 473. The Nevada Supreme Court denied Lisle's petition for rehearing, but issued an order clarifying its ruling on one issue. See Order Denying Rehearing, Exhibit 75 (ECF No. 219-14); Lisle v. State, 114 Nev. 221, 954 P.2d 744 (1998). Lisle petitioned to the United States Supreme Court for certiorari; the petition was denied on October 5, 1998. See Opinion, Exhibit 76 (ECF No. 219-15); Lisle v. State, 525 U.S. 840 (1998). The Nevada Supreme Court's remittitur was issued on November 16, 1998. See Findings of Fact, Conclusions of Law and Order, Exhibit 91, p. 2 (ECF No. 220, p. 3).

         Lisle filed a pro se petition for writ of habeas corpus in the state district court on November 9, 1998. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 78 (ECF No. 219-17). Counsel was appointed, and, with counsel, Lisle filed a supplement to his petition on July 26, 2000. See Supplemental Points and Authorities, Exhibit 84 (ECF No. 219-23). The state district court denied the petition on October 30, 2000. See Findings of Fact, Conclusions of Law and Order, Exhibit 91 (ECF No. 220). Lisle appealed, and the Nevada Supreme Court affirmed the denial of the petition on August 21, 2002. See Appellant's Opening Brief, Exhibit 99 (ECF No. 220-8); Order of Affirmance, Exhibit 103 (ECF No. 220-12). The remittitur was issued on September 17, 2002. See Remittitur, Exhibit 105 (ECF No. 220-14).

         Lisle initiated this action by filing a petition for writ of habeas corpus in this Court on August 20, 2003 (ECF No. 1). Lisle's original petition in this case was signed on his behalf by counsel. However, Lisle requested appointment of counsel by the Court, and the Court appointed the Federal Public Defender for the District of Nevada (FPD) to represent him (ECF Nos. 2, 4, 6). Lisle then filed a motion for leave to conduct discovery (ECF No. 41), and extensive discovery proceedings ensued.

         On April 15, 2008, Lisle filed a first amended habeas petition (ECF No. 122).

         On June 2, 2008, Lisle filed a motion for leave to file a second amended petition, and he submitted the proposed second amended petition (ECF No. 128). That motion was granted on July 8, 2008, and the second amended petition was filed on that date (ECF Nos. 131, 132).

         On April 15, 2008, along with his first amended petition, Lisle filed a motion for stay and abeyance (ECF No. 120). Respondents did not oppose that motion, and on July 8, 2008, the case was stayed pending exhaustion of claims in state court (ECF No. 131).

         On August 25, 2008, Lisle filed a second state-court habeas petition. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 108 (ECF Nos. 220-17, 220-18); see also Amended Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 121 (ECF Nos. 221-2, 221-3, 221-4); Second Amended Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 136 (ECF Nos. 221-26, 221-27, 221-28). The state district court dismissed that petition on procedural grounds on November 20, 2009. See Findings of Fact, Conclusions of Law and Order, Exhibit 140 (ECF No. 221-32). Lisle appealed, and the Nevada Supreme Court affirmed on June 25, 2015. See Order, Exhibit 169 (ECF No. 222-23); Lisle v. State, 351 P.3d 725 (Nev. 2015). The Nevada Supreme Court denied rehearing on October 22, 2015. See Order Denying Rehearing, Exhibit 173 (ECF No. 222-27). The United States Supreme Court denied certiorari on May 16, 2016. See Letter, Exhibit 179 (ECF No. 222-33).

         The stay of this case was lifted, upon a motion by Lisle, on June 22, 2016 (ECF No. 191). On October 21, 2016, Lisle filed a third amended petition for writ of habeas corpus (ECF No. 197), which is now his operative petition in this case. The Court reads Lisle's third amended petition to assert the following discrete claims:

         1. Lisle's conviction and death sentence violate the federal constitution “because, in light of new evidence not presented at trial, it is more likely than not that no reasonable juror, properly instructed, would have found him guilty beyond a reasonable doubt … and/or he can make a truly persuasive demonstration that he is factually innocent of the offense.” Third Amended Petition (ECF No. 197), pp. 14-34.

         2. Lisle's conviction and death sentence violate the federal constitution “because prosecutorial misconduct and the State's failure to disclose material exculpatory and impeachment evidence deprived Mr. Lisle of fundamentally fair proceedings.” Id. at 35.

         A. “The State failed to disclose material impeachment evidence and failed to correct false testimony.” Id.

1. “The State failed to disclose exculpatory and impeachment materials regarding John Melcher.” Id. at 36-44.
2. “The State failed to disclose impeachment materials regarding Larry Prince.” Id. at 44-49.
3. “The State failed to disclose impeachment evidence regarding Adam Evans.” Id. at 49-50.
4. “The State failed to disclose the existence of cash payments to its witnesses.” Id. at 50-53.
5. “The prosecutor misled trial counsel by claiming that his office maintained an open file policy.” Id. at 54-56.

         B. “The State committed misconduct throughout the trial.” Id. at 56.

1. “The State made improper comments and argument during its opening statement.” Id. at 57-58.
2. “The State committed misconduct during its closing argument.” Id. at 58.
a. “The State improperly aligned itself with the jury.” Id. at 58-59.
b. “The State improperly vouched for the credibility of Mr. Evans and Mr. Melcher.” Id. at 59-62.
c. “Improperly commenting upon the lack of mitigating evidence and the role of mitigating circumstances.” Id. at 62-63.

         3. Lisle's conviction and death sentence violate the federal constitution “because the State committed prosecutorial misconduct in presenting testimony that improperly bolstered its witnesses; the trial court erred in failing to strike that testimony; and trial counsel provided ineffective assistance in failing to object to that testimony, move to strike that testimony, and move for a mistrial following the jury's exposure to that testimony.” Id. at 65-77.

         4. Lisle's conviction and death sentence violate the federal constitution “because the prosecutor prevented the defense from speaking with John Melcher and the trial court did not afford petitioner a hearing on his allegations.” Id. at 78-82.

         5. Lisle's conviction and death sentence violate the federal constitution “because Mr. Lisle's attorneys were constitutionally ineffective at all stages of his state-court proceedings.” Id. at 83.

         A. “Trial counsel were ineffective for failing to present available mitigating evidence at the penalty phase.” Id. at 83-129.

         B. “Trial counsel performed ineffectively during the guilt phase.” Id. at 129.

1. “Failure to investigate and present evidence of actual innocence of first-degree murder.” Id.at 129-32.
2. “Ineffective litigation of gang allegations in the guilt phase.” Id. at 132-42.
3. “Ineffective cross-examination of Larry Prince.” Id. at 142-55.
4. “Ineffective cross-examination of John Melcher.” Id. at 155-57.
5. “The institutional lack of resources at the office of the Clark County Public Defender.” Id. at 158-59.
C. “Trial counsel failed to object to prosecutorial misconduct.” Id. at 159-60.
D. “Trial counsel failed to object to erroneous jury instructions and failed to request necessary jury instructions.” Id. at 160-61.

         6. Lisle's conviction and death sentence violate the federal constitution “due to the invalid instructions defining first-degree murder which removed the distinguishing elements of the offense from the jury's consideration and rendered the instructions unconstitutionally vague.” Id. at 163-73.

         7. Lisle's death sentence violates the federal constitution “because the knowing risk of death aggravating circumstance has been unconstitutionally applied to Mr. Lisle's case.” Id. at 174-80.

         8. Lisle's conviction and death sentence violate the federal constitution “because cumulative errors in Mr. Lisle's proceedings deprived him of fundamental fairness throughout the proceedings.” Id. at 181-82.

         9. Lisle's conviction and death sentence violate the federal constitution “due to direct appeal counsel's failure to provide reasonably effective assistance.” Id. at 183-87.

         10. Lisle's conviction and death sentence violate the federal constitution “because the trial court committed numerous substantial and injurious errors during the guilt- and penalty-phase proceedings.” Id. at 188.

A. “The trial court erroneously allowed the State to present prejudicial evidence of an unadjudicated homicide.” Id. at 188-90.
B. “The trial court erroneously admitted hearsay evidence in violation of Lisle's confrontation rights.” Id. at 190-95.
C. “The trial court erred by failing to continue Mr. Lisle's arraignment despite the fact that he had not been given a timely copy of the grand jury proceedings.” Id. at 195-96.
D. “The State failed to provide Mr. Lisle with adequate notice of the grand jury proceedings.” Id. at 197-201.

         11. Lisle's conviction and death sentence violate the federal constitution “because the trial court erroneously instructed the jury in the guilt- and penalty-phase proceedings.” Id. at 202.

         A. “The reasonable doubt instruction.” Id. at 202-04.

         B. “Guilt phase instructions.” Id. at 204.

1. “The premeditation and deliberation instruction.” Id. at 204.
2. “The malice instructions.” Id. at 204-07.

         C. “Penalty phase instructions.” Id. at 207.

1. “The anti-sympathy instruction.” Id. at 207-08.
2. “The limited use of prior bad act evidence and failure to instruct the jury that the other murder offense had to be found beyond a reasonable doubt.” Id. at 208-12.
3. “The failure to require that mitigation evidence must be outweighed by statutory aggravating circumstances beyond a reasonable doubt.” Id. at 212-13.

         12. Lisle's conviction and death sentence violate the federal constitution “because systemic errors in jury selection infected the voir dire proceedings.” Id. at 214.

         A. “The State used peremptory challenges in a racially discriminatory manner.” Id. at 215-21.

         B. “The trial court failed to remove for cause biased jurors Koch, Mode, and Chandler from the venire.” Id. at 221-22.

         C. “The trial court improperly limited the voir dire proceedings.” Id. at 223-25.

         D. “The trial court erred by limiting voir dire to questions not contained in the written questionnaires in order to rush the voir dire proceedings.” Id. at 225-27.

         E. “The trial court erred in conducting voir dire on the unconstitutional theory that a prospective juror had to be able to ‘equally consider' death as a punishment.” Id. at 227-29.

         F. “The trial court failed to record critical parts of voir dire.” Id. at 230-31.

         G. “Mr. Lisle was deprived of the effective assistance of counsel during the voir dire proceedings.” Id. at 231-32.

1. “Trial counsel failed to rehabilitate death-scrupled jurors.” Id. at 232-35.
2. “Trial counsel failed to object for cause to biased jurors.” Id. at 235-38.
3. “Trial counsel were ineffective for using peremptory strikes to remove biased jurors who should have been challenged for cause.” Id. at 238-40.
4. “Trial counsel ineffectively litigated the Batson issue.” Id. at 240-41.
5. “Trial counsel were ineffective in failing to object to the misleading voir dire and question on the questionnaire regarding ‘equal consideration” of the death penalty.” Id. at 241.

         13. Lisle's conviction and death sentence violate the federal constitution “due to the failure of the Nevada Supreme Court to conduct fair and adequate appellate review.” Id. at 243.

A. “The Nevada Supreme Court's mandatory review of death sentences for arbitrariness is itself arbitrary and ...

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