Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lisle v. Filson

United States District Court, D. Nevada

July 2, 2018

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

          ORDER

          MIRANDA M. DU, UNITED 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 Petitioner. For the following reasons, the Court will grant in part and deny in part the motion to dismiss, and will deny Petitioner's motions for leave to conduct discovery, for medical examination and site inspection, and for an evidentiary hearing.

         II. BACKGROUND

         This habeas corpus 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 Justin Lusch in Las Vegas on August 22, 1994. In its opinion on Lisle's direct appeal, the Nevada Supreme Court described the factual background of the case as follows:

On August 22, 1994, between 4:00 to 4:30 a.m., the body of nineteen-year-old Justin Lusch (“Justin”) was found shot to death in the Lone Mountain desert area in Las Vegas.
* * *
In early July 1994, Justin began living with a friend, Eric Resma (“Resma”) in Resma's converted garage, which was a known “drug house.” About August 8, 1994, two weeks prior to Justin's death, Lisle and [Jerry] Lopez visited Resma's garage for the first time, looking for their friend, Jason Sullivan (“Sullivan”), who had recently lived there, but had since moved out. Resma talked with Lisle and Lopez and invited them inside to ingest drugs. From that day forward, Lisle and Lopez continued to frequent Resma's residence. At some point thereafter, Resma found a .380 caliber automatic gun between his couch cushions. When Resma asked the occupants of the garage where it came from, either Lisle or Lopez took the gun from Resma and put it in his own pants waistband.
On August 17, 1994, Lisle and Sullivan participated in a drug transaction at Resma's house. Lisle sold Sullivan ten grams of methamphetamine with the understanding that Sullivan would pay Lisle for the narcotics within a few days. Sullivan then sold Justin 1.75 grams for which Justin would pay later. Sullivan took his portion of the drugs, along with five or six rifles he also presumably received from Lisle, to the house of his girlfriend, Nicole Catherina (“Catherina”), where Sullivan was then living. Later that day, Sullivan was arrested on unrelated charges.
The next day, on August 18, 1994, Catherina contacted Resma so that she could return the drugs and guns to Lisle. Resma and Justin went to Catherina's residence to pick up the items and took them to Resma's house where Lisle and Lopez were waiting. Resma gave the drugs to Lisle, but put the rifles, wrapped in a blanket, on the couch. Justin told Lisle that Sullivan had given him a portion of the drugs, and Lisle demanded to know their location. Justin replied that the drugs were locked away and he did not have them in his possession at the moment. Lisle continued to demand to see the drugs. He appeared very upset and seemed to disbelieve Justin. Resma then stated that he had the drugs and asked Lisle if he wanted to see them. Lisle calmed down once Resma interjected; Lisle stated that he did not need to see the drugs.
Throughout this conversation, Lisle was “fiddling” with his .380 caliber weapon. He was cleaning it, and the clip containing ammunition was not in the gun. Nevertheless, Justin asked Lisle if he was threatening him with the gun. Lisle said he was not; if he had a problem with Justin, he would take him outside and they would box.
Later that day, Justin separately told his friends, Ryan Cizl (“Cizl”) and Jeff Kurtz (“Kurtz”), that Lisle had held a gun to his head. He also told them that later Lisle apologized to Justin. Both Kurtz and Cizl testified at trial that although Justin was prone to exaggerate, this time they did not detect any hyperbole from him.
Sometime between August 18, 1994, and August 21, 1994, Justin found the rifles that were returned at Resma's residence. [Footnote: It is unclear from the record how Justin “found” these rifles when he participated in obtaining them from Catherina to return to Lisle. Presumably, since the rifles were wrapped in a blanket, Justin did not know what they were.] He thought they were stolen and stated that he wanted the guns removed from the residence or else he would turn them over to his father, the chief of police for North Las Vegas. Thereafter, another resident at Resma's garage, T.J. Willis (“Willis”), told Lisle what Justin had said about the guns. Lisle apparently stated to Willis that he advised Justin not to do that.
On August 21, 1994, in the late evening hours, Lisle, Lopez, and some other friends, including Adam Evans (“Evans”), were at the house of Anthony Vanella (“Vanella”). Lisle stated, in Evans' presence, that he was going to kill a “snitch” named Justin. Lopez was not present at this conversation.
In the meantime, at approximately 10:30 p.m., Kurtz telephoned Justin to request that Justin procure some drugs for him. Between 11 p.m. to midnight, Justin gave another friend a ride home from Resma's garage. While Justin was out, Kurtz called back again and left a message. When Justin returned home, he did not call Kurtz back right away.
At approximately 2 a.m. on August 22, 1994, Lisle and Lopez left Vanella's house. Either Lopez or Lisle had a .380 caliber gun tucked into his waistband.
At approximately 2:30 a.m., Justin returned Kurtz's phone call to inform him that he was going out to get the drugs. Justin stated that he was on his way out the door at that moment and he would contact Kurtz in fifteen minutes. He stated he was getting the drugs from some people known as “Vatos” and that they were at the door right now. Lisle and Lopez were known as “Vatos, ” and Justin, in particular, enjoyed calling them by that nickname. Kurtz, who was anxiously awaiting his delivery, called Justin again at 3 a.m. and received no answer.
Between approximately 4:00 to 4:30 a.m., Justin's body was found at an area in the desert known as Lone Mountain. It was later determined that this was an area that Lisle and Lopez were known to frequent for shooting practice. Justin was shot three times: once in the upper chest, once in the right side of his back, and once in his lower back.
Meanwhile, between 4:00 to 4:30 a.m., Lisle and Lopez returned to Vanella's house. Lisle had the gun in his possession. Evans testified that Lisle told Vanella, “I smoked him. I got him. I killed a snitch. We took him to where we used to shoot and he ran and I shot him in the back.” In addition, Vanella's mother overheard Lisle say, “I took him to the desert and I did him. I shot him four times and I think I hit him three. He was a rat. I knew he was a rat and I'm glad I did it.” Lisle also mentioned the “snitch's” name was Justin. Lopez then stated, “We did it clean and we did it good. Nobody is going to find out that we did it. You don't have to worry.” Vanella then suggested to Lisle and Lopez to get rid of the gun, whereupon Lisle stated that he would go out and sell it. Lisle and Lopez then left Vanella's house and returned about one hour later. Lisle stated he sold the gun for $50.00.
Later on August 22, 1994, between 9 or 10 p.m., Vanella brought Lisle and Lopez to the house of Larry Prince (“Prince”) for the first time. [Footnote: Prince was a man in his late forties who provided food, drugs, money, and a place to stay for teenagers and young adults in the neighborhood.] Lisle, Vanella, and Prince discussed a drug transaction. At the conclusion of this conversation, Lisle asked Vanella to leave the room. When Prince and Lisle were alone, Lisle stated, “There's something I have to let you know. I killed a snake. I mean I offed a snitch, I offed someone. I offed a human being. I killed someone.” He then stated the victim was a son of a police officer, but did not name him. Lisle did, however, state that it would be on the news that evening. At 11 p.m., they all watched the news. Upon seeing a story of a body found in the desert, Lisle seemed to display a sense of satisfaction, while Lopez portrayed no reaction at all.
The next day, August 23, 1994, Prince assisted Lisle and Lopez in disposing of a trash bag that purportedly contained two pairs of tennis shoes. Evans testified that within a couple days after the murder, he noticed that Lisle and Lopez wore different tennis shoes than they had worn prior to Justin's death.
Sometime between August 22, 1994, and August 25, 1994, Lisle showed Prince a .380 caliber automatic gun, but explained that this was not the weapon used to kill Justin. Lisle stated, “Don't worry about that one. That one's long gone.” On August 25, 1994, the police arrested Prince at his home for possession of a controlled substance with intent to sell. While there, the police observed Lisle sitting in a certain armchair. Later that day, upon searching Prince's house pursuant to a search warrant, the police found a .380 caliber gun tucked into the seat cushions of the very chair on which Lisle had been sitting. Although this gun was later determined not to be the same weapon that killed Justin, it was discovered that the brand of bullets found in the gun was the same brand used to shoot Justin.
In late August 1994, Lisle informed his friend, John Melcher (“Melcher”), that he was “laying low” because the police were trying to “get” him for the murder of the North Las Vegas police chief's son, but that the police did not have enough evidence on him.
Lisle introduced Melcher to Lopez. Lopez told Melcher that he and Lisle picked up Justin and took him to the desert. Lopez stopped the car, and Lisle and Justin got out and went to the back of the car, whereupon Lopez observed Lisle shoot Justin. Lopez was able to witness this incident by looking at the rear-view mirror.
On October 22, 1994, Lisle, Melcher, and Evans were involved in the murder of Kip Logan (“Logan”). Lisle was eventually convicted of first degree murder and sentenced to death. [Footnote: Lisle was apparently sitting in the passenger's seat of a van while Melcher was driving it on the freeway. Evans was sitting in the back seat behind Lisle. Lisle was making gang hand signals and yelling at the cars that passed them on the right side. Logan was a driver of a car next to them, who started to laugh at Lisle. Lisle pulled out a gun and shot Logan, killing him.]
Melcher and Evans eventually agreed to a plea bargain for their participation in Logan's death in exchange for testifying against Lisle for the killing of both Logan and Justin. In addition, Prince plea bargained the August 25, 1994 drug charges pending against him in exchange for testifying at both murder trials.
In early 1995, while Melcher and Lisle were incarcerated together because of the Logan murder, Lisle told Melcher that he looked Justin in the eyes before he killed him and that he got a thrill from it.
In July 1995, Lisle and Lopez were arrested for Justin's murder, and on July 28, 1995, an information was filed charging Lisle and Lopez each with murder with use of a deadly weapon and conspiracy to commit murder. In addition, Lisle was charged with being an ex-felon in possession of a firearm.
Trial began on April 9, 1996, and concluded on April 18, 1996, resulting in verdicts of first degree murder with use of a deadly weapon and conspiracy to commit murder for both Lisle and Lopez. Lisle was also found guilty of being an ex-felon in possession of a firearm. The penalty hearing began April 22, 1996, and concluded on April 25, 1996, resulting in a sentence of death for Lisle and a sentence of life in prison with the possibility of parole for Lopez.

Lisle v. State, 941 P.2d 459, 463-65 (Nev. 1997) (order filed as Exh. DDD (ECF No. 187-4)).

         In a separate case pending in this Court, No. 2:03-cv-1005-JCM-CWH, Lisle seeks relief with respect to his conviction and death sentence for the Logan murder.

         In the case at issue here, regarding the Lusch murder, the judgment of conviction was entered on June 7, 1996. (See Judgment of Conviction, Exh. OO (ECF No. 186-15).) Lisle appealed to the Nevada Supreme Court, and the Nevada Supreme Court affirmed on June 17, 1997. (See Appellant's Opening Brief, Exh. WW (ECF No. 186-23); see also Lisle, 941 P.2d 459.) The Nevada Supreme Court denied Lisle's petition for rehearing. (See Order Denying Rehearing, Exh. GGG (ECF No. 187-7).) Lisle petitioned to the United States Supreme Court for certiorari; the petition was denied on October 5, 1998. (See Letter, Exh. KKK (ECF No. 187-11).) The Nevada Supreme Court's remittitur was issued on November 3, 1998. (See Remittitur, Exh. MMM (ECF No. 187-13).)

         Lisle filed a pro se petition for writ of habeas corpus in the state district court on November 12, 1998. (See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. NNN (ECF No. 187-14).) Counsel was appointed, and, with counsel, Lisle filed a supplement to his petition on June 30, 2000. (See Supplemental Points and Authorities, Exh. VVV (ECF No. 187-22).) The state district court denied the petition on November 29, 2000. (See Findings of Fact, Conclusions of Law and Order, Exh. ZZZ (ECF No. 187- 26).) Lisle appealed, and the Nevada Supreme Court affirmed the denial of the petition on July 9, 2002. (See Appellant's Opening Brief, Exh. BBBB (ECF No. 188-2); Order of Affirmance, Exh. EEEE (ECF No. 188-5).) The remittitur was issued on August 5, 2002. (See Remittitur, Exh. EEEEa (ECF No. 188-6).)

         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. 5, 13, 15.) Lisle then filed a motion for leave to conduct discovery (ECF No. 47), and extensive discovery proceedings ensued. On May 20, 2008, Lisle filed a first amended habeas petition. (ECF No. 72.)

         On July 7, 2008, Lisle filed a motion for stay and abeyance. (ECF No. 78.) Respondents did not oppose that motion, and on August 4, 2008, this case was stayed pending Lisle's exhaustion of claims in state court. (ECF No. 81.)

         On October 3, 2008, Lisle filed a second state-court habeas petition. (See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. FFFF (ECF Nos. 189-1, 189-2, 189-3); see also Amended Petition for Writ of Habeas Corpus (Post-Conviction), Exh. GGGG (ECF Nos. 190-1, 190-2, 190-3, 190-4).) The state district court dismissed that petition, on procedural grounds, on August 25, 2009. (See Order, Exh. LLLL (ECF No. 192-4).) Lisle appealed, and the Nevada Supreme Court affirmed on February 24, 2012. (See Order of Affirmance, Exh. QQQQ (ECF No. 193-4).)

         The stay of this case was lifted, upon a motion by Lisle, on December 12, 2012. (ECF No. 119.) On March 25, 2013, Lisle filed a second amended petition for writ of habeas corpus. (ECF No. 129.) On April 28, 2014, Lisle filed a third amended petition. (ECF No. 176.)

         Respondents filed a motion to dismiss Lisle's third amended habeas petition on December 26, 2014. (ECF No. 182.) On May 12, 2015, Lisle's counsel-the FPD-filed an ex parte motion to withdraw (ECF No. 213 (sealed)), informing the court that they had a conflict with respect to a potential argument for equitable tolling in response to Respondents' assertion of the statute of limitations defense. The Court ultimately denied the FPD's motion to withdraw, but appointed separate counsel to assert the equitable tolling argument for Lisle. (ECF Nos. 225 (sealed), 231 (sealed), 233.) Lisle's separate counsel filed memoranda of supplemental argument in response to the motion to dismiss the third amended petition. (ECF Nos. 240, 262.)

         While the motion to dismiss the third amended petition was pending, Lisle filed a motion for leave to supplement his petition. (ECF No. 268.) On March 17, 2017, the Court granted that motion and directed Lisle to file a fourth amended petition including the new material. (ECF No. 284.) The Court denied the motion to dismiss the third amended petition, without prejudice, as moot.

         Lisle filed his fourth amended petition for writ of habeas corpus (ECF No. 292), now the operative petition in this case, on April 21, 2017. The Court reads Lisle's fourth amended petition to assert the following discrete claims:

         1. Lisle's federal constitutional rights were violated as a result of ineffective assistance of counsel. (Fourth Amended Petition (ECF No. 292) at 11-66.)

A. Trial counsel were ineffective for failing to present available mitigating evidence at the penalty phase of Lisle's trial. (Id. at 12-57.)
B. Trial counsel were ineffective at the guilt phase of Lisle's trial. (Id. at 57-65.)
C. Lisle's federal constitutional rights were violated as a result of the cumulative effect of ineffective assistance of his counsel. (Id. at 65.)
D. Lisle received ineffective assistance of counsel on his direct appeal and in his state post-conviction proceedings. (Id. at 65-66.)

         2. Lisle's death sentence is in violation of the federal constitution, because “the statutory aggravating factors could not be applied constitutionally to make Mr. Lisle death-eligible.” (Id. at 67-233.)

A. “The kidnapping aggravating circumstance is unconstitutional as applied to Mr. Lisle.” (Id. at 67-69.)
B. “The ‘previously convicted of another murder' aggravator is unconstitutional as applied to Mr. Lisle.” (Id. at 69-229.)
C. “Counsel at all proceedings failed to raise the unconstitutionality of the aggravating factors applied at the Lusch proceedings.” (Id. at 229.)

         3. Lisle's federal constitutional rights were violated, in the guilt phase of his trial, as a result of the admission of evidence of other bad acts by Lisle. (Id. at 234-48.)

A. Lisle's federal constitutional rights were violated as a result of admission of evidence regarding the Logan homicide. (Id. at 235-41.)
B. Lisle's federal constitutional rights were violated as a result of admission of evidence “that Melcher was an ‘enforcer' for Lisle.” (Id. at 241-48.)

         4. Lisle's federal constitutional rights were violated “because the trial court admitted prejudicial extrajudicial statements of Mr. Lisle's co-defendant Jerry Lopez.” (Id. at 249-56.)

         5. Lisle's federal constitutional rights were violated “because the trial court's instruction to Larry Prince to testify falsely corroded judicial integrity and rendered Mr. Lisle's proceedings fundamentally unfair.” (Id. at 257-63.)

         6. Lisle's federal constitutional rights were violated “because the trial court's striking of Janice Sykes's references to Jerry Lopez deprived Mr. Lisle of an opportunity to present mitigating evidence.” (Id. at 264-68.)

         7. Lisle's federal constitutional rights were violated “because trial court error and the ineffective assistance of counsel during voir dire contaminated Mr. Lisle's proceedings.” (Id. at 269-78.)

A. “Mr. Lisle's jury was death-biased.” (Id. at 269-73.)
B. “A death-biased juror was seated.” (Id. at 273-75.)
C. “The trial court erroneously denied trial counsel's motion for a sequestered jury.” (Id. at 275-77.)
D. “The errors in the voir dire process should be considered singly and cumulatively.” (Id. at 277-78.)
E. Lisle's counsel on direct appeal and in his state post-conviction proceedings “failed to investigate, develop, and present this claim.” (Id. at 278.)

         8. Lisle's federal constitutional rights were violated “because prosecutorial misconduct deprived Mr. Lisle of fundamentally fair proceedings.” (Id. at 279-91.)

         A. “The State improperly expressed personal opinions during closing arguments.” (Id. at 280-81.)

         B. “The State improperly commented on the lack of mitigating evidence and the role of mitigating circumstances.” (Id. at 281-83.)

1. “The State made improper comments regarding Mr. Lisle's mitigation presentation.” (Id. at 282.)
2. “The State misstated the law regarding mercy.” (Id. at 282-83.)

         C. “The State improperly encouraged jurors to sentence Mr. Lisle based on passion and prejudice.” (Id. at 283-85.)

         D. “The State improperly disparaged trial counsel and Mr. Lisle.” (Id. at 285-87.)

         E. “The State argued the death penalty was necessary to prevent Mr. Lisle from killing again.” (Id. at 287-89.)

         F. “The State made a misrepresentation to the trial court.” (Id. at 289.)

         G. The State's misconduct should be considered singly and cumulatively. (Id. at 289-90.)

         H. “Trial, appellate, and post-conviction counsel were ineffective for failing to challenge the extensive prosecutorial misconduct which occurred in Mr. Lisle's trial.” (Id. at 290-91.)

         9. Lisle's federal constitutional rights were violated “because Mr. Lisle was forced to wear a stun belt and shackles during the guilt and penalty phases of his trial.” (Id. at 292-96.)

A. “The trial court erred in failing to conduct a hearing to determine whether an essential state interest necessitated the use of a stun belt and shackles.” (Id. at 293-95.)
B. “Trial counsel were ineffective for failing to object to the restraints.” (Id. at 295.)
C. “Appellate and post-conviction counsel were ineffective in failing to raise this claim.” (Id. at 295-96.)

         10. Lisle's federal constitutional rights were violated “because the trial court erroneously denied Mr. Lisle's motion to sever the charge of being an ex-felon in possession of a firearm from his first-degree murder charge.” (Id. at 297-98.)

         11. Lisle's federal constitutional rights were violated “because the trial court erroneously admitted the out-of-court testimony of a witness who inculpated Mr. Lisle.” (Id. at 299-306.)

         12. Lisle's federal constitutional rights were violated “because the State's failure to disclose material exculpatory and impeachment evidence deprived Mr. Lisle of fundamentally fair proceedings.” (Id. at 307-28.)

A. “The State failed to disclose material impeachment evidence related to its witness Adam Evans.” (Id. at 308-16.)
B. “The State failed to disclose material impeachment evidence related to its witness John Melcher.” (Id. at 317-22.)
C. “The State failed to turn over handwritten notes of a conversation with Mr. Melcher.” (Id. at 323.)
D. “The CCDA's ‘open file' policy failed to comply with constitutional discovery obligations.” (Id. at 323-25.)
E. “The State failed to disclose cash payments made to witnesses.” (Id. at 325-28.)

         13. Lisle's federal constitutional rights were violated “because the trial court erroneously denied Mr. Lisle's motion to call John Melcher's attorney to testify.” (Id. at 329-31.)

         14. Lisle's federal constitutional rights were violated “because the trial court did not strike the testimony of John Melcher because the State had instructed Mr. Melcher not to speak to Mr. Lisle's attorneys.” (Id. at 332-34.)

         15. Lisle's federal constitutional rights were violated “because the trial court erroneously instructed the jury at the guilt and penalty phase proceedings.” (Id. at 335-56.)

         A. The trial court improperly instructed the jury in the guilt phase of the trial. (Id. at 335-51.)

1. The trial court improperly instructed the jury regarding the elements of first-degree murder. (Id. at 335-41.)
2. The trial court improperly instructed the jury regarding reasonable doubt. (Id. at 342-43.)
3. The trial court failed “to give a curative instruction after the erroneous introduction of prior bad act evidence.” (Id. at 344.)
4. The trial court “failed to properly instruct the jury on the theories of aiding and abetting and conspiracy to commit murder.” (Id. at 344-47.)
5. The trial court did not properly instruct the jury regarding possession of a deadly weapon. (Id. at 347-49.)
6. The trial court gave an “equal and exact justice instruction, ” which “improperly minimized the State's burden of proof.” (Id. at 349-51.)

         B. The trial court improperly instructed the jury in the penalty phase of the trial. (Id. at 351-56.)

1. The trial court gave an “anti-sympathy” instruction. (Id. at 351-53.)
2. The trial court failed to instruct the jury “regarding the limited use of prior bad act evidence.” (Id. at 353-56.)

         16. Lisle's federal constitutional rights were violated “because the trial court erroneously denied Mr. Lisle's motion to sever his trial from that of his co-defendant.” (Id. at 357-67.)

         17. Lisle's federal constitutional rights were violated “because the trial court erroneously denied Mr. Lisle's motion to compel discovery of the State's written notes of an interview with its key witness John Melcher.” (Id. at 368-70.)

         18. Lisle's federal constitutional rights were violated “because the trial court erroneously struck Darlene Falvey's testimony, depriving Mr. Lisle of an opportunity to rebut evidence of aggravating circumstances.” (Id. at 371-77.)

         19. Lisle's federal constitutional rights were violated “because the State improperly referred to the fact that another jury had sentenced Mr. Lisle to death.” (Id. at 378-81.)

         20. Claim 20 reiterates claims made elsewhere in the Petition.

         21. Lisle's federal constitutional rights were violated “by the failure to submit all of the elements of capital eligibility to the grand jury or to a court for a probable cause determination.” (Id. at 387-88.)

         22. Lethal injection is cruel and unusual punishment. (Id. at 389-414.)

A. “Lethal injection is unconstitutional in all circumstances.” (Id. at 389-98.)
B. “Lethal injection in Nevada is unconstitutional.” (Id. at 398-414.)

         23. Lisle's federal constitutional rights were violated “because Mr. Lisle's capital trial, sentencing, and review on direct appeal were conducted before state judicial officers whose tenure in office was not during good behavior but whose tenure was dependent on popular election.” (Id. at 415-22.)

         24. Lisle's federal constitutional rights were violated “because the state courts failed to provide Mr. Lisle with the effective assistance of counsel during the appellate and post-conviction stages of his proceedings.” (Id. at 423-32.)

         25. Lisle's death sentence is invalid under the federal constitution “because the Nevada capital punishment system operates in an arbitrary and capricious manner.” (Id. at 433-36.)

         26. Lisle's death sentence is invalid under the federal constitution “because the death penalty is cruel and unusual punishment in all circumstances.” (Id. at 437-38.)

         27. “Mr. Lisle's sentence violates the International Covenant on Civil and Political Rights.” (Id. at 439-40.)

         28. Lisle's federal constitutional rights were violated “due to the cumulative errors in the admission of evidence and instructions, gross misconduct by state officials and witnesses, and the systematic deprivation of Mr. Lisle's right to the effective assistance of counsel.” (Id. at 441-42.)

         29. Lisle's conviction and death sentence are invalid under the federal constitution “because he may become incompetent to be executed.” (Id. at 443.)

         30. Lisle's “trial, conviction, sentence, appeal and all post-conviction proceedings are and were fundamentally unfair, ” and in violation of the federal constitution, “because severe mental and physical illness rendered him incompetent during those proceedings, ” and because of “maltreatment while incarcerated.” (Id. at 444-64.)

A. “Mr. Lisle had known mental and physical issues . . . before his trial.” (Id. at 445-48.)
B. “Circumstances of Mr. Lisle's confinement at Ely State Prison have exacerbated Mr. Lisle's physical and mental health issues.” (Id. at 448-63.)

         31. Lisle's federal constitutional rights were violated “because Mr. Lisle's attorneys failed to object to the admission of evidence during the penalty phase of his trial which recounted events that did not result in a criminal conviction and that occurred before Mr. Lisle reached the age of eighteen.” (Id. at 465-68.)

         32. Lisle's federal constitutional rights were violated “because the State committed prosecutorial misconduct in presenting testimony that improperly bolstered its witnesses; the trial court erred in allowing 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 469-78.)

         33. Lisle's federal constitutional rights were violated “because the trial court erroneously admitted hearsay evidence of an alleged prior bad act committed by Mr. Lisle.” (Id. at 479-85.)

         34. Lisle's federal constitutional rights were violated “because the trial court erred in allowing the State to present evidence of Mr. Lisle's gang membership; trial counsel were ineffective when they failed to object to evidence of Mr. Lisle's gang membership and even elicited some evidence about that issue themselves; and the State committed misconduct when it elicited evidence about Mr. Lisle's gang membership in violation of the trial court's pretrial order.” (Id. at 486-94.)

         35. Lisle's federal constitutional rights were violated “because trial counsel rendered constitutionally deficient assistance when they failed to cover their client's tattoos for trial and failed to object to the State's gratuitous and inflammatory references to the tattoos; and because the trial court erred in admitting State's Exhibit 31.” (Id. at 495-501.)

         36. Lisle's federal constitutional rights were violated because “the trial court erroneously admitted the testimony of Edward Ortiz, and trial counsel rendered deficient performance when they failed to request a limiting instruction on the jury's use of that testimony, and the trial court erroneously admitted the testimony of Jeff Kurtz.” (Id. at 502-09.)

         On June 20, 2017, Respondents filed their motion to dismiss the fourth amended petition. (ECF No. 293.) Lisle filed an opposition to that motion on August 28, 2017. (ECF No. 298.) In addition, the Court considers, with respect to the motion to dismiss the fourth amended petition, the memoranda of supplemental argument filed by Lisle's separate counsel in response to the motion to dismiss the third amended petition. (ECF Nos. 240, 262.) On August 28, 2017, Lisle also filed a motion for leave to conduct discovery (ECF No. 300), a motion for medical examination and site inspection (ECF No. 305), and a motion for evidentiary hearing (ECF No. 303). On October 9, 2017, Respondents filed a reply to Lisle's opposition to the motion to dismiss (ECF No. 309), and oppositions to Lisle's three motions (ECF Nos. 310, 311, 312). On October 30, 2017, Lisle filed replies in support of his motions. (ECF Nos. 314, 315, 316.)

         III. Discussion

         A. Statute of Limitations 1. Legal Standards

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”), enacted in 1996, established a one-year statute of limitations for federal habeas petitions filed by prisoners challenging state convictions or sentences; the statue provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.