Lead Opinion
Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge FISHER; Dissent by Judge RYMER.
OPINION
In this capital case, petitioner John Es-piredion'Valerio appeals the district court’s dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254. We decide as follows:
First, we reverse the district court’s dismissal of Valerio’s habeas petition as to the penalty phase of his trial. During the penalty phase, the jury was instructed to determine whether the murder with which Valerio was charged “involved torture, depravity of mind, or mutilation of the victim.” The jury concluded that this aggravating circumstance was present and, based in part on this conclusion, sentenced Valerio to death.
The jury instruction was clearly unconstitutional under Godfrey v. Georgia,
Second, we address the effective date of our Circuit Rule 22-1. The district court granted a certificate of appealability (“COA”) on the issue of the unconstitutional aggravator, but it refused to grant a COA on issues in two groups of additional claims relating to the guilt phase. Valerio sought to expand the COA to encompass the issues in these additional claims by briefing them to us, as expressly permitted under our decision in United States v. Cruz-Mendoza,
Third, we address the first group of additional guilt-phase claims. That group consists of three claims newly added to Valerio’s amended federal habeas petition. The district court dismissed these claims for abuse of the writ under Farmer v. McDaniel,
Fourth, we address the second group of additional guilt-phase claims. This group consists of claims that the district court declined to decide on the ground that they had been procedurally defaulted in state court. We hold that the claims were not procedurally defaulted. We grant the expanded COA, reverse the dismissal of these claims, and remand to the district court for appropriate consideration.
I. Background
In' 1988, a Nevada jury convicted petitioner-appellant Valerio of first degree murder with the use of a deadly weapon for the killing of Karen Sue Blackwell. Valerio had killed Blackwell by stabbing her 45 times. During the separate penalty proceeding, the jury found two aggravating circumstances: first, that Valerio had a prior violent felony conviction and second, that the murder “involved torture, depravity of mind, or mutilation.” The jury returned a verdict of death.
Valerio appealed his conviction, arguing that he was prejudiced by prosecutorial misconduct and by the introduction of certain photographs at trial. The Nevada Supreme Court denied his direct appeal in September 1989. Valerio then filed a petition for post-conviction relief in state court pursuant to Nevada Revised Statute (NRS) Chapter 177. The petition claimed, inter alia, ineffective assistance of counsel (“IAC”) and unconstitutionality of a penalty phase aggravating circumstance jury instruction requiring a finding of “torture, depravity of mind, or mutilation of the victim.” After conducting an evidentiary hearing, the Nevada district court denied Valerio’s petition in November 1990, rejecting all of his claims. The Nevada Supreme Court affirmed the denial in January 1992. •
In May 1996, Valerio filed a second petition for habeas corpus in federal district court. That petition, the focus of the present appeal, asserts the same 24 claims for relief that Valerio had presented to the Nevada state courts in his second state petition. As amended in December 1996, the petition also asserts three additional claims. Two claims assert further factual grounds supporting the claims of IAC. One claim asserts a violation of Brady v. Maryland,
The federal district court dismissed most of Valerio’s claims as procedurally defaulted in state court. The court then rejected the three newly added claims as an abuse of the writ under federal law. Finally, the court entered judgment denying Valerio’s remaining claims on the merits and dismissed his petition on August 20, 1998. Valerio applied for a COA generally on all issues decided against him by the district court. He specifically applied for a COA on claim 13 (improper closing argument by the prosecutor in the penalty phase), claim 14 (unconstitutionally vague instruction on aggravating circumstance in the penalty phase), and claim 15 (insufficient evidence of torture and mutilation under the aggravating circumstance). On October 15, 1998, the district court granted the COA as to the issues in claims 13, 14, and 15 and denied certification as to all other issues.
Valerio appealed the district court’s dismissal on the merits of claims 14 and 15.
II. Depravity of Mind Jury Instruction
We first address Valerio’s penalty-phase claim that a jury instruction on an aggravating circumstance was unconstitutional. We address this claim even though, as will be seen later in the opinion, we remand several guilt-phase claims for further consideration. We have previously addressed penalty-phase claims while guilt-phase claims remain to be adjudicated. See Morris v. Woodford,
At the conclusion of the penalty phase of Valerio’s trial, the jury was directed to determine whether the murder “involved torture, depravity of mind, or mutilation of the victim.” Valerio argues that the “depravity of mind” portion of the instruction, and therefore the instruction as a whole, were unconstitutionally vague. The district court granted a COA on claim 14, concerning the unconstitutionality of the jury instruction. Valerio argues that the unconstitutionality of the instruction requires that we grant his petition as to the penalty phase of his trial. For the reasons that follow, we agree.
A. Unconstitutionality of the Instruction
It is clear that the aggravating-circumstance instruction concerning depravity of mind, in the form in which it was given to the jury, was unconstitutional. The Eighth Amendment requires that jury instructions in the penalty phase of a capital case sufficiently channel the jury’s discretion to permit it to make a principled distinction between the subset of murders for which a death sentence is appropriate and the majority of murders for which it is not. See Wade v. Calderon,
In Godfrey v. Georgia, the Supreme Court held unconstitutional an aggravating-circumstance instruction that permitted a jury to impose the death penalty if it found that the murder “ ‘was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.’ ”
Applying Godfrey, we held in Deutscher v. Whitley,
There is nothing in the definition of depravity of mind that restrains arbitrary imposition of the death penalty. The depravity instruction in this case ... is no more capable of channeling discretion than the ‘especially heinous, atrocious, or cruel’ instruction rejected in Maynard or the ‘outrageously or wantonly vile, horrible or inhuman’ instruction in Godfrey.
Id. at 1162 (citation omitted); see also McKenna v. McDaniel,
Our decision in Deutscher was rendered on August 31,1989. The Nevada Supreme Court decided Valerio’s direct appeal from his conviction and sentence six days later, on September 6, 1989. It said nothing about Godfrey and Deutscher, and nothing about the constitutionality of the instruction.
The Nevada Supreme Court responded to Godfrey and Deutscher a year later, in Robins v. State,
B. State Court Proceedings
Nevada is a “weighing” state. See McKenna,
After the presentation of evidence at the penalty phase of Valerio’s trial, the jury was instructed that it could find three possible aggravating circumstances. The constitutionality of the jury instruction as to two of them is not in question. The first was that “[t]he murder of Karen Sue Blackwell was committed by a person who was previously convicted of a felony involving the use or threat of violence to the person of another.” The second was that “[t]he murder was committed while the person was engaged in the commission of any robbery.” The jury found the first of these two circumstances present, but not the second.
The third aggravating-circumstance instruction directed the • jury to decide whether “[t]he murder of Karen Sue Blackwell by the defendant involved torture, depravity of mind or the mutilation of the victim” (emphasis added). Neither “torture” nor “mutilation of the victim” was defined in the instructions. “Depravity of mind” was defined as follows:
The condition of mind described as depravity of mind is characterized by an inherent deficiency of moral sense and rectitude. It consists of evil, corrupt and perverted intent which is devoid of regard for human dignity and which is indifferent to human life. It is a state of mind outrageously, wantonly vile, horrible or inhuman.
The prosecutor’s argument concerning the third aggravating-circumstance in-structionwas, in its entirety:
The next aggravating circumstance which you would be able to find is that the murder, I’m not going to remember the exact wording, included or the person doing — let me get the instruction. I don’t want to be wrong. The murder involved torture, depravity of mind or the mutilation of the victim. Did this killing involve any of those things?
Let’s just talk about depravity of mind. We all understand mutilation, disfigurement of the body. We all understand torture, systematic harming of someone while they’re alive. Let’s talk about depravity because that is defined for you since it’s not a word often used. [The prosecutor then read the depravity of mind instruction.] It’s pretty bad.
We have a body here, the body of Karen Sue Blackwell, which had 45 knife wounds, three, I can’t remember the number, some abrasions to the top of . her head. This body was mutilated, was it not from the top of the head to the vaginal area. That body was mutilated, pure and simple. That must be the definition of mutilation.
Did it happened [sic] during torture? We don’t know that, although I will allude to the — you’ve probably looked at the pictures now and there is that thing that was called a tie wrap, I think, by one of the officers. It’s a noose. That’s what it is. Let’s not call it a tie wrap any more. It’s a noose. It was not used to choke. There’s no evidence of that. Maybe a leash would be a better term. Maybe somebody put that around the neck of Karen Sue Blackwell not to drag it any place because there are no marks on the throat but to control. Does that start to hint of a depraved mind? All these things together, knife wounds in the front and the back, all over the arms, on the top of the head.*753 This was a depraved, a depraved human being who did these acts.
And I’m not going to argue to you that he tortured her because we don’t know for sure that that’s what happened, that he was doing it while she was awake and wanted her to suffer. But, but I think the evidence clearly shows depravity of mind and mutilation, and you only need one of those for another aggravating circumstance.
We may summarize the prosecutor’s argument fairly simply. He disavowed reliance on the “torture” part of the instruction because, in his view, the evidence did not support it: “I’m not going to argue to you that he tortured her because we don’t know for sure that that’s what happened[.]” Instead, he relied on the two other parts of the instruction. He relied on “mutilation of the victim,” emphasizing the 45 knife wounds and the “abrasions” on the top of the victim’s head. And he relied on “depravity of mind,” emphasizing the wounds and the “noose” or “leash” around the victim’s neck.
The jury found that the murder “involved torture, depravity of mind or the mutilation of the-victim.” The jury found as a mitigating circumstance that at the time of the crime Valerio was gainfully employed and that his employer spoke well of his service. The jury found, that the mitigating circumstance was insufficient to outweigh the two aggravating circumstances and imposed a sentence of death. Valerio appealed his conviction and death sentence directly to the Nevada Supreme Court.
Valerio “enumerated” only two errors in his direct appeal — first, that a photograph of the victim holding her daughter, as well as autopsy photographs, had been improperly admitted; and, second, that an argument by the prosecutor that Valerio should not be given “the opportunity to kill anyone again” was improper. The Nevada Supreme Court affirmed. Valerio’s conviction in an unpublished order. It held that the admission of the photograph of the victim with her daughter had been improper but not prejudicial, and that the admission of-the autopsy photographs had been properly within the discretion of the trial court. It further held that the prosecutor’s argument had been improper but not prejudicial. , ,
In addition to any “errors enumerated” by a defendant sentenced to death, the Nevada Supreme. Court is required by statute to address three issues sua sponte on direct appeal. The statute provides, in pertinent part:
2. Whether or not the defendant or his counsel affirmatively waives the appeal, the sentence must be reviewed on the record by the supreme court, which shall consider, in a single proceeding if an appeal is taken:
(a) Any errors enumerated by way of appeal; ■
(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;
(c) Whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary factor; and
(d) Whether the sentence of death is excessive, considering both the crime and the defendant.
NRS 17.7.055(2) (emphasis added).
In affirming Valerio’s conviction, the Nevada Supreme Court addressed only the two issues listed in NRS 177.055(2)(c) and (d). As to those two issues, it wrote:
[0]ur review of the record reveals that Valerio’s sentence was not imposed under the influence of passion, prejudice or any arbitrary factor, and that the sentence of death pronounced by the jury*754 does not constitute excessive punishment, given the magnitude and circumstances of the crime.
The court did not address the issue it was required to consider under NRS 177.055(2)(b) — whether the evidence supported the jury’s finding of the two aggravating circumstances.
In affirming Valerio’s conviction and sentence, the Nevada Supreme Court did not mention the United States Supreme Court’s decision in Godfrey, rendered eight years earlier, which had made clear that a depravity of mind aggravating — circumstance instruction was unconstitutionally vague. The court also did not mention our decision in Deutscher, rendered only six days earlier, which had specifically applied Godfrey to the Nevada depravity of mind instruction.
After his conviction and sentence were affirmed on direct appeal, Valerio petitioned for post-conviction collateral review in state court under NRS Chapter 177. Valerio contended in his petition, inter alia, that the depravity of mind instruction was unconstitutionally vague. The state district court noted that Valerio had not raised the unconstitutionality of the instruction on direct appeal, but it nonetheless addressed (and rejected) the argument on the merits.
The argument that the aggravating circumstance “depravity of mind” is unconstitutional and renders the petitioner’s death penalty invalid was not raised on direct appeal. However, the Supreme Court has declared the term “depravity of mind” as being language that is “plain and intelligible” and not constitutionally vague. Rogers v. State,101 Nev. 457 , 467,705 P.2d 664 (1985). See also: Deutscher v. State,95 Nev. 669 , 687,601 P.2d 407 (1979) and McKenna v. State,101 Nev. 838 , 351,705 P.2d 614 (1985). The Supreme Court recently reaffirmed the depravity of mind instruction in Robins v. State, Nev. Adv. Op. 108, filed September 19, 1990, wherein it distinguished the case from Godfrey v. Georgia,446 U.S. 420 ,100 S.Ct. 1759 ,64 L.Ed.2d 398 (1980).
The death sentence is not solely based upon a “depravity of mind” aspect. This case involved torture of the deceased. The petitioner stabbed the victim 45 times with the intent to cause cruel pain and suffering for some sadistic purpose and such acts involved a high probability of death. Deutscher v. State,95 Nev. 669 ,601 P.2d 407 (1979).
The Nevada district court thus provided two responses to Valerio’s argument. First, as to the depravity of mind instruction, the court held that it was not unconstitutionally vague. The court wrote that the Nevada Supreme Court had “declared the term ‘depravity of mind’ as being ... not constitutionally vague” in Rogers v. State in 1985, and that it had “recently reaffirmed the depravity of mind instruction” in Robins v. State in 1990. In fact, however, the Nevada Supreme Court had not “reaffirmed” the constitutionality of the instruction in Robins. Rather, it had done just the opposite; based on Godfrey,
Second, the state district court held that there was, in any event, torture within the meaning of the instruction. It did not mention the fact that the prosecutor, in his closing argument to the jury, had specifically stated that the evidence did not show torture. It did not discuss the fact that there was no evidence of torture beyond the wounds themselves. And it did not mention the fact that there was no evidence of the killer’s “intent” or “sadistic purpose” beyond the nature of the wounds.
Valerio appealed the state district court’s denial of his post-conviction petition to the Nevada Supreme Court. In an unpublished order, that court rejected on the merits Valerio’s argument that the depravity of mind instruction was unconstitutional.
[Valerio] contends that the jury was improperly instructed. We agree with the district court that the murder of Karen Blackwell involved torture (or serious physical abuse). In Robins v. State,106 Nev. 611 , 629,798 P.2d 558 , 570 (1990), we recognized that a depravity of mind instruction must include “torture, mutilation or other serious and depraved physical abuse beyond the act of killing itself, as a qualifying requirement to [the] aggravating circumstance.” In this case, evidence that Ms. Blackwell was stabbed more than forty-five times, had “defensive wounds” on her hands and arms, and died not from one wound but from all wounds combined, satisfies us that she was subjected to torture and/or serious physical abuse before she died. As in Robins, we thus conclude that the depravity of mind instruction in Mr. Valerio’s case was not unconstitutionally vague as applied.
The Nevada Supreme Court’s response to Valerio’s argument may be summarized as follows: It first “agreed” with the state district court that the murder “involved torture (or serious physical abuse),” even though the state district court had held only that the murder involved torture. Then, unlike the state district court, it discussed, and relied on, the narrowed construction of the instruction supplied in Robins. Finally, it held that the evidence in the case “satisfies us” that there had been “torture and/or serious physical abuse” before the victim’s death. Like the state district court, the Nevada Supreme Court did not mention that the prosecutor had disavowed any conclusion that there had been torture, or discuss the evidence (or lack thereof) supporting a conclusion that Valerio intended to torture the victim.
C. Failure of the Nevada Supreme Court to Cure the Erroneous Jury Instruction
Because the depravity of mind aggravating-circumstance instruction, as given to Valerio’s jury, was unconstitutionally
When a state trial court sentences a defendant to death based in part on an unconstitutionally vague aggravating circumstance, the state appellate court may affirm the sentence in three ways. First, it can find the error harmless under Chapman v. California,
Second, a state appellate court can cure the error by the method approved in two cases decided the same day, Walton v. Arizona,
In performing a Walton analysis, the state appellate court is not reviewing a lower court finding for correctness; it is,
Third, a state appellate court can cure a penalty-phase instructional error by “reweighing” aggravating and mitigating circumstances under Clemons,
Reweighing under Clemons differs significantly from a Walton analysis. Under Clemons, the state appellate court reweighs aggravating and mitigating circumstances that have already been found by a jury to exist. The appellate court does no independent factfinding, but rather relies on facts already found by the jury. That is, under Clemons, the appellate court evaluates and “reweighs” the aggravating and mitigating circumstances, but it does not independently determine whether those circumstances exist. Under Walton, by contrast, the appellate court applies a narrowing construction and then does its own independent de novo factfinding to determine whether the evidence supports the existence of one or more aggravating circumstances under the narrowed construction. Further, a Clemons reweighing is performed when the penalty-phase fact-finder was a jury. See Clemons,
In reviewing the state district court’s denial of Valerio’s post-conviction petition, the Nevada Supreme Court in this case did not perform a harmless-error analysis under Chapman. Nor did it reweigh under Clemons. Rather, it affirmed the sentence by applying a narrowed construction and engaging in de novo factfinding under Walton. We must decide whether the Nevada Supreme Court thereby succeeded in curing the unconstitutionally vague jury instruction. ' For two independently sufficient reasons, we conclude that it did not.
The Supreme Court has approved Walton appellate court factfinding only in cases in which the factfinder during the penalty-phase trial was a judge. See Walton; see also Lewis v. Jeffers,
When a jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process. It is not enough to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face. That is the import of our holdings in Maynard and Godfrey. But the logic of those cases has no place in the context of sentencing by a trial judge.
Walton,
The Nevada Supreme Court itself now agrees that the Walton appellate factfind-ing procedure is not available when the penalty-phase factfinder was a jury. In Valerio’s case, the Nevada Supreme Court applied a Walton analysis (although without invoking Walton by name) to apply the narrowing construction supplied by Robins and to find the facts de novo. But in a later case, Pertgen v. State,
Although the Court [in Walton ] upheld the imposition of the death penalty, Walton is factually distinguishable from the present case. In Walton, the death sentence was imposed by a trial judge, who is presumed to know the law and to apply it in a constitutional manner. By contrast, in this case, the death sentence was imposed by a jury.
Id. at 562-63.
We agree with the Nevada Supreme Court’s holding in Pertgen. Walton does not allow a state appellate court to apply a narrowing construction to an unconstitutional instruction, and to engage in de novo factfinding, when the penalty-phase factfinder has been a jury. We therefore conclude that the Nevada Supreme Court’s de novo factfinding under Walton did not—-because it could not— cure the error caused by the unconstitutionally vague jury instruction.
2. The Nevada Supreme Court Did Not Provide “Close Appellate Scrutiny”
Even if we assume that Walton could have been used to cure an unconstitutionally vague aggravating-circumstance jury instruction, the Nevada Supreme Court did not fulfill its responsibilities under Walton. The Supreme Court has emphasized that a state appellate court must
A state appellate court cannot “affirm a district court without a thorough analysis of the role an invalid aggravating factor played in the sentencing process.” Stringer v. Black,
We therefore examine the decision of the Nevada Supreme Court in this case to determine whether it gave the required “close appellate scrutiny” to the “import and effect of [the] invalid aggravating factor” in this case. Stringer,
The Nevada Supreme Court performed the first step in Robins, by construing the depravity of'mind instruction to require “torture, mutilation, or other serious" and depraved physical abuse beyond the act of killing itself.” The. Nevada Supreme Court, then purported to perform the second step when it applied that narrowed construction to Valerio’s case. ■■ See order, quoted supra, p. 18. However, it is appar-^ ent from its order that the Nevada Supreme Court did not properly perform the second step of its Walton analysis. The court recited accurately the narrowing Robins construction. But it is clear from the face of the order that the court’s evaluation of the evidence under the narrowed instruction did not meet the United States Supreme Court’s standard of “close appellate scrutiny.”
First, the Nevada Supreme Court stated that it “agree[d]” with the state district court that the murder involved “torture (or serious physical abuse)” 'and that it was “satisfied” that the evidence showed that there was “torture and/or physical abuse” (emphases added). We conclude, from the use of the word “or” and the phrase “and/ or,” that the Nevada Supreme Court may have meant to do no more than to agree with .the district court’s finding of torture. Agreement with the state district court on
Second, the Nevada Supreme Court’s phrase “serious physical abuse” is taken from the longer formulation in Robins (“serious and depraved physical abuse beyond the act of killing itself’). The state district court had not found serious physical abuse. Indeed, it had not mentioned physical abuse, serious or otherwise. Because the state district court had made no such finding, there was nothing in that court’s order with respect to “serious physical abuse” with which the Nevada Supreme Court could have agreed.
Third, the Nevada Supreme Court stated that, as it viewed the evidence, the victim “died not from one wound but from all the wounds combined.” This view of the evidence is inconsistent with the court’s application of the narrowed version of the instruction that it was purporting to apply. As noted above, Robins requires that there be “serious and depraved physical abuse beyond the act of killing itself” (emphasis added). If, as the Nevada Supreme Court believed, the victim died from all the wounds combined, the wounds did not constitute abuse beyond the act of killing itself.
We therefore conclude that the Nevada Supreme Court did not engage in the “close appellate scrutiny” required by Stringer and Jeffers, and that its analysis under Walton did not cure the erroneous jury instruction, even if it could have done so.
D. Harmless Error
Based on the foregoing, we know that the depravity of mind aggravating-circumstance jury instruction was unconstitutionally vague, and that the Nevada Supreme Court did not cure the instructional error. We must therefore determine whether the error was harmless.
1. Harmless Error Analysis When a Walton Analysis is Unavailable
We have held that state appellate court factfinding under Walton is not available in this case because the aggravating and mitigating circumstances were found by a jury rather than a judge. Because the instructional error was not cured (and was not curable) under Walton, it is possible that the use of the unconstitutionally vague “depravity of mind” jury instruction is not susceptible to harmless error review. In Maynard v. Cartwright and Godfrey v. Georgia, the Supreme Court reversed outright the death sentences based on unconstitutionally vague aggravating jury instructions, without engaging in any harmless error analysis. See Maynard,
2. Harmless Error Analysis When There Has Been No “Close Appellate Scrutiny”
We have also held that, even if a Walton analysis is available, the Nevada Supreme Court failed to cure the instructional error because it did not provide the required “close appellate scrutiny.” Under this view of the case, we must determine which of two possible harmless error standards applies. The first is the “rational factfinder” standard of Jackson v. Virginia,
a. Harmless Error under Jackson v. Virginia
If a Walton analysis were available in this case despite the fact that the penalty-phase factfinder was a jury, and if the state appellate court had provided the required “close appellate scrutiny,” we would evaluate the case under the “rational fact-finder” standard of Jackson. Under Jackson, a federal habeas court must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson,
In Jeffers, the Court held that when a state appellate court, acting under Walton, provides a constitutionally valid narrowing interpretation of an ' aggraváting circumstance, and then finds, on de novo review of the evidence, that the circumstance existed, a federal habeas court should provide a deferential review. “Where the issue is solely whether a state court has properly found the existence of a constitutionally narrowed aggravating circumstance, - we have never required federal courts ‘to peer majestically over the [state] court’s shoulder so that [they] might second-guess its interpretation of the facts that quite reasonably—perhaps even quite plainly—fit within the statutory language.’ ” Id. at 780-81,
However, we do not believe that the Jackson standard should be applied in this case. Jeffers’ application of the Jackson “rational factfinder” standard is premised on the state appellate court’s actually having performed the required “close appellate scrutiny” when it engaged in a Walton analysis. In the ordinary case, comity would require that we assume that the state court provided “close appellate scrutiny” when it made a de novo evidentiary determination that the constitutionally narrowed aggravating circumstance existed. But where, as here, it is clear from the face of the state appellate court’s order that it has not provided such scrutiny, the premise for applying the Jackson standard does not exist.
The usual standard for harmless error on federal habeas corpus for state prisoners is provided by Brecht. We hold that the Brecht harmless error standard applies when there has been a failure to engage in the “close appellate scrutiny” required when a state appellate court engages in a Walton analysis. Under Brecht, an error is not harmless if it has a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ”
Under the Robins narrowing construction, the jury should have been asked whether, beyond a reasonable doubt, the murder involved “torture, mutilation, or other serious and depraved physical abuse beyond the act of killing itself.” In the instruction that was actually given, the jury was asked whether, beyond a reasonable doubt, the murder involved “torture, depravity of mind or mutilation of the victim.” The jury answered “yes.” Valerio has not challenged the constitutionality of the Robins narrowing construction, and we assume for purposes of this analysis that it is constitutional. The question for us, therefore, is whether the actual instruction had a “substantial and injurious effect or influence” on the jury’s verdict, in comparison to what the verdict would have been if the narrowed instruction had been given.
Under the narrowed instruction, Valer-io’s counsel could have argued much more effectively than under the actual instruction that the aggravating circumstance was not present. We know that the prosecutor himself conceded that the evidence did not support a finding of “torture,” even under the pre-Robins broad definition of torture. The prosecutor could still have argued under Robins for a finding of “mutilation,” as he did during the actual penalty-phase tidal, and for a finding of “serious physical abuse.” But the prosecutor would have had greater difficulty making those arguments, for, under Robins, the mutilation and serious physical abuse must have been caused by an act “beyond the act of killing itself.”
Based on the evidence in the record, a juror could readily have concluded that the victim died from the cumulative effect of all her wounds. The Nevada Supreme Court, in affirming the denial of Valerio’s petition for post-conviction relief under NRS 177, stated as much, acknowledging the evidence that the victim “died not from one wound but from all wounds combined.” If this is so, a juror could readily have concluded that none of the wounds consti
If a single member of the jury had been convinced under the narrowed construction that there was a reasonable doubt in favor of Valerio, the jury could not have returned a verdict finding that the aggravating circumstance existed. Given the relative ■ ease with which a juror could have come to that conclusion based on the evidence presented, we conclude that the erroneous instruction had a “substantial and injurious effect or influence” on the verdict, and that the Brecht standard was met.
We therefore reverse the district court and remand with instructions that, should the district court not issue a writ with respect to the guilt phase of Valerio’s trial, it shall grant the petition for a writ of habeas corpus as to the penalty phase, unless the state within a reasonable period of time either grants a new penalty trial or vacates the death sentence and imposes a lesser sentence consistent with law.
We next consider whether to grant a COA as to the issues that relate to the guilt phase of Valerio’s trial.
III. Applicability of Circuit Rule 22-1
Valerio sought to appeal the denial of his second federal habeas petition after the April 24, 1996, effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214. His appeal is therefore controlled by the appellate review provisions of AEDPA. See Slack v. McDaniel,
(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from:
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; ■* * *
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c).
The word “judge” in § 2253(c)(1) includes not only a circuit judge but also a district judge. That is, both circuit and district judges have the authority under § 2253(c)(1) to grant COAs. See United States v. Asrar,
We promulgated Ninth Circuit Rule 22-1 to specify detailed procedures for COA applications under § 2253(c) and Rule 22, including procedures for applying for an expanded COA. That rule provides, in pertinent part:
(d) Partial Denial By District Court; Motion By Petitioner. If the district court denies a certificate of appealability in part, the court of appeals will not consider uncertified issues unless petitioner first seeks, and the court of appeals grants, broader certification. Petitioners desiring broader certification must file, in the court of appeals, a separate motion for broader certification, along with a statement of reasons why a certificate should be granted as to any issues(s) within thirty-five days of the district court’s entry of its order denying a certificate of appealability.
Ninth Cir. R. 22-l(d).
We addressed the applicability of Circuit Rule 22-1 to a petitioner in Valer-io’s situation in United States v. Zuno-Arce,
The effective date of Circuit Rule 22-1 was January 1, 1999. Prior to the adoption of Rule 22-1, we had no applicable circuit rule. In the absence of such a rule, we had held on June 23, 1998 that a petitioner who had received a partial COA from the district court could apply for an expanded COA from the court of appeals by the simple expedient of briefing the uncertified issue or issues to us. See Cruz-Mendoza I,
Valerio timely filed his notice of appeal in the district court on September 18, 1998. The district court entered an order granting the COA as to some issues and denying it as to others on October 15, 1998. Both dates are after our decision in Cruz-Mendoza I and before the effective date of Circuit Rule 22-1. That is, when Valerio filed his notice of appeal and when the district court partially granted and partially denied his request for a COA, the clearly stated, then-effective law of this circuit was that it was sufficient for a habeas petitioner to brief to the court of
Circuit Rule 22-1 changed the practice approved in Cruz-Mendoza I. The rule provides that petitioners wishing to expand a COA must file “within thirty-five days of the district court’s entry of its order denying a. certificate of appealability” a “separate motion for broader certification” in the court of appeals. Ninth Cir. R. 22-1 (emphasis added). When the rule became effective on January 1, 1999, two and one-half months had elapsed since the district court’s partial denial of Valerio’s request for a COA. Therefore, as of the effective date of the rule, Valerio could not possibly have complied with its requirement that a separate motion be filed within thirty-five days of the district court’s denial.
Valerio never made a separate-motion to this court for an expanded COA. Rather, he simply briefed the issues as to which he sought an expanded COA, in accordance with the practice we had endorsed- in Cruz-Mendoza I six months before the effective date of Rule 22-1.
Supreme Court and Ninth Circuit case law both lead us to the same result. In Landgraf v. USI Film Prods.,
In Volkswagenwerk Aktiengesellschaft v. Church,
[The new rule] shall govern in all such proceedings ... then pending, except to the extent that in the opinion of the court of appeals their application to a particular proceeding then pending zvould not be feasible or would work an injustice, in which case the former procedure may be followed.
Id. at 1127 (emphasis added).
Circuit Rule 22-1, by its own terms, has no provision applicable, in any respect, to a petitioner in Valerio’s position. The rule does not, for example, direct a petitioner for whom more than thirty-five days have already elapsed at the effective date of the rule to file a separate motion within thirty-five days of the effective date. In the absence of any direction to a petitioner in Valerio’s position — or, indeed, any acknowledgment that someone in his position even existed — it was not unreasonable for Valerio to assume that the rule simply did not apply to him. This is particularly so given that, prior to the adoption of the Rule, Cruz~Mendoza I had specifically approved briefing to the court of appeals as a mechanism for seeking an expanded COA. See
We therefore hold that Circuit Rule 22-1 does not apply, either directly or by analogy, to habeas appeals in which an expanded COA is sought in the court of appeals, and in which the district court’s order denying a COA was entered before the effective date of the Rule. For such cases, we hold that the procedure we approved in Cruz-Mendoza I, in which briefing of the uncertified issue or issues in the court of appeals is treated as a request for an expanded COA, is available to a petitioner. In the case before us, we specifically hold that Valerio’s briefing of issues as to which the district court denied a COA is a procedurally proper request to this court for an expanded COA.
There are two groups of claims for which Valerio sought an expanded COA. In the first group are three newly added claims that the district court dismissed for abuse of the writ. In the second group are numerous claims that the district court dismissed because of asserted procedural default in state court. All of these claims relate to the guilt phase of Valerio’s trial. We now turn to the two groups of claims, and consider whether to grant an expanded COA.
IV. Abuse of the Writ
A. Application of Slack v. McDaniel
Because Valerio’s first federal ha-beas corpus petition contained exhausted and unexhausted claims, the district court properly dismissed the petition under Rose v. Lundy,
We may grant Valerio’s request for an expanded COA only if he has made “a substantial showing of the denial of a constitutional right.” 28, U.S.C. § 2253(c)(2). When a district court .has relied on a procedural ground to dismiss a claim, our decision whether to grant a COA has “two components, one directed at the underlying constitutional claims and one directed at the district court’s procedural holding.” Slack,
We first address the procedural holding of the district court. Valerio satisfies the procedural component of Slack if he shows “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack,
' Because dismissal of a claim for abuse of the writ under Rule 9(b) is premised on the supposedly abusive claim’s having been included in a second or successive-petition, such a dismissal is not available when the earlier petitions were dismissed for failure to exhaust. See id. ’ The district court’s dismissal of Valerio’s- three new claims1 for abuse of .the -writ was thus based on an erroneous view of the law, for, as we now know from Slack, Valerio’s second federal habeas petition was not a second or successive petition within the meaning of Rule 9(b). Our conclusion that the district court erred “more than meets Slack’s requirement that ‘jurists of reason would find it debatable whether The district court was correct in its procedural, ruling.’ ” Petrocelli,
We next'address the underlying constitutional rights asserted in Valerio’s three newly added claims. Under the second ' component' of Slack,' Valerio must show “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.”
The new claims are an amendment to claim 16(h), and new claims 17(m) and'25. Amended claim 16(h) and claim 17(m) allege that Valerio received ineffec
We therefore grant the broadened COA and remand to the district court to allow it to deal appropriately with Valerio’s three newly added claims.
B. Unexhausted Claims and Mixed Petition
It is possible that none of the three newly added claims has been exhausted in state court. Two of the three—■ amended claim 16(h) and claim 17(m)—are based on ineffective assistance of counsel, and may be exhausted. Valerio has already presented IAC claims to the state court, and those IAC claims are exhausted. If the two new claims are sufficiently related to the exhausted claims, they, too, are exhausted. The question under Humphrey v. Cady,
When the district court decided the merits of Valerio’s claim that the depravity of mind jury instruction was unconstitutional, there were no pending unexhausted claims. The district court had dismissed the three newly added claims for abuse of the writ, and thus when the district court acted the petition did not contain both exhausted and unexhausted claims. The district court thus did not violate the rule of Rose v. Lundy, which forbids a district court to decided exhausted claims that are contained in a “mixed” petition. See
However, because of our holding that the district court erred in dismissing the claims for abuse of the writ, we have now revived the three claims. Once we have revived these claims, we are faced with the question of whether we should decline to rule on an exhausted claim contained in the mixed petition that we have created. We believe that despite the revival of these three claims in this court, we are acting appropriately in deciding Valer-io’s exhausted claim that the depravity-of-mind jury instruction was unconstitutional. See Part II, supra.
The prohibition against deciding an exhausted claim in a mixed petition is not jurisdictional. The Supreme Court made this clear in Strickland v. Washington,
Moreover, the strictness of the prohibition against ruling on claims in mixed petitions is primarily directed at the district
First, at the time the jury instruction claim was decided by the district court, the petition was not mixed, and the district court acted in full compliance with Rose v. Lundy. Then, when Valerio and the State briefed and argued to us, neither of them mentioned to us the problem that might be created if we revived the claims. Compare Simmons v. Blodgett,
Second, to the degree that there is a problem, we created it. That is, only when we revived the three claims in this court did the petition become mixed. We also created the problem in another sense. The district court dismissed the three claims for abuse of the writ because it was following our holding in Farmer v. McDaniel. The Supreme Court then overruled Farmer in Slack. If we had decided Farmer correctly, the district court would have been able, in the first instance, to determine whether some or all of the newly added claims were exhausted. The district court would then have been able to exercise its discretion under Calderon v. District Court (Taylor),
In another ease in which we created a similar problem, we decided a number of unexhausted claims. In Hendricks v. Zenon,
Third, the jury instruction claim is obviously one of the most important — possibly the most important — claim in Valerio’s petition. Valerio sought and received COAs on three specifically enumerated issues in the district court. The remainder of his request for a COÁ in the district was a general, undifferentiated request as to all other issues, which was denied by that court. On appeal to us, Valerio pursued two of the three COAs that were granted by the district court, both of which focused on the depravity of mind aggravating-circumstance jury instruction. And as we have held, supra Part II) the unconstitutionality of that instruction compels a granting of the writ as to the penalty phase.
By contrast, the three claims that now may make this a mixed petition are relatively unimportant. The two IAC claims are additions to already exhausted IAC claims, and it is not clear how much they add to those claims. (Moreover, as discussed above, it is not even clear that these two claims are unexhausted.) The Brady claim may have substantive merit, but there is an obvious possibility it will be held timebarred in the state courts if Val-erio attempts to exhaust it. (If so, it is possible that the claim is exhausted because it is procedurally barred. See Phillips v. Woodford,
Finally, the interests of judicial efficiency would be served by deciding Valerio’s jury instruction claim now. To state it bluntly, to send this case back to the district court without deciding the jury instruction claim would be a colossal waste of time. At some point, “judicial ping-pong between the state and federal courts” serves no useful purpose. Harris v. Reed,
C. Procedure on Remand
Although a district court must dismiss a “mixed” petition, containing both exhausted and unexhausted claims, see Rose v. Lundy, it may not dismiss a mixed petition without giving the petitioner the opportunity to delete the unexhausted claims. See Tillema v. Long,
V. Procedural Default in State Court
After Valerio’s first federal habeas corpus petition was dismissed because it contained unexhausted claims, Valerio filed another petition for post-conviction relief in state court, this time a petition for habeas corpus under NRS Chapter 34. (As recounted supra, Valerio’s first petition for post-conviction relief was filed under NRS Chapter 177.) The new state-court petition contained 24 claims, some with numerous subparts.
The Nevada district court divided the claims into two groups and, in an unpublished order, dismissed all of them. The first group contained claims 1-18.
The second group contained claims 19-24. These were new claims based on what Valerio alleged to be recently recollected conversations with his trial counsel. The state district court held these claims barred by the second clause of NRS 34.810(2), which provides, in relevant part:
On appeal, the Nevada Supreme Court affirmed in a published opinion. See Valerio v. State,
As for the grounds among claims 1-18 which have not been determined on the merits, we hold' that the district court properly dismissed these grounds pursuant to NRS 34.810 since Valerio could have raised them in his first petition, and his failure to do so constituted an abuse of the writ.
We further hold that the district court did not err in dismissing those grounds among claims 1-18 which had been de~ termined on the merits. These claims may not be raised again because this court’s prior orders dismissing them constitute the law of the case.
Id. at 386-87,
In reviewing Valerio’s second federal habeas petition, the federal district court held that some of Valerio’s claims had been properly raised and exhausted in state court and were therefore not procedurally defaulted for purposes of federal habeas review.
Valerio did, however, contest in his briefs the district court’s finding that his remaining guilt phase claims were procedurally defaulted. The district court agreed with the Nevada Supreme Court that Valerio had procedurally defaulted those claims among claims 1-18 that had never been presented to the Nevada state courts, and on that ground dismissed those claims.
The principles of state-court procedural default in federal habeas corpus are well-established. A federal habeas court cannot review a claimed denial of a federal constitutional right if the petitioner has failed to present the claim to the state court because of a procedural default in that court. A default under an independent and adequate state procedural rule operates as a bar in federal court unless the petitioner can show cause for and prejudice from the default. See Wainwright v. Sykes,
In order for a state procedural rule to serve as an adequate state ground, it must be regularly followed by the state courts. “[A] state procedural ground is not ‘adequate’ unless the procedural rule is ‘strictly or regularly followed.’ ” Johnson v. Mississippi,
We discuss Valerio’s request for a COA as to the claims the district court held procedurally defaulted in two parts, tracking the Nevada Supreme Court’s opinion. First, we address the claims remaining from Valerio’s first group of 18 claims: claims 4-8, 10-12, and 16-18.
A. Claims 4-8, 10-12, and 16-18
Because the district court relied on a procedural ground to dismiss Valerio’s supposedly defaulted claims, we apply the analysis prescribed in Slack v. McDaniel, evaluating both the procedural ground and the underlying constitutional claim to determine if they are “debatable” among “jurists of reason.” Slack,
We first evaluate the procedural ground. In affirming the Nevada district court’s dismissal of claims 1-18, the Nevada Supreme Court failed to specify which claims had previously been presented to the state court and could not be relit-igated, and which had never been presented to state court and had been waived. The facts of this case are indistinguishable from those in Calderon v. United States District Court (Bean),
The order, which we agree with the district court is ambiguous, does not specify which of Bean’s thirty-nine claims the court rejected under Wai-treus, and which it rejected under Harris/Dixon. “[A] procedural default based on an ambiguous order that does not clearly rest on independent and adequate state grounds is not sufficient to preclude federal collateral review.” The district court properly declined to dismiss these claims.
Bean,
Based on Bean and Coleman v. Thompson, we hold that the district court erred in finding a state-court procedural default as to claims 4-8, 10-12, and 16-18.
We next evaluate the underlying constitutional claims. Because the merits of Valerio’s constitutional contentions under claims 4-8, 10-12, and 16-18 were not developed in the federal district court, the substantive prong of Slack requires only that we “simply take a ‘quick look’ at the face of the complaint to determine whether the petitioner has ‘facially allege[d] the denial of a constitutional right.’ ” Petrocelli,
We therefore grant an expanded COA as to claims 4-8, 10-12, and 16-18.
B. Claims 19-24
As we did for claims 1-18, we follow the two-step procedure of Slack v. McDaniel for claims 19-24. We first evaluate the procedural component. As noted, supra, Valerio satisfies the procedural component of Slack if he shows “that jurists of reason would find it debatable whether the dis-
Claims 19-24 were presented to the Nevada courts for the first time in Valerio’s second post-conviction petition, brought under NRS Chapter 34. The Nevada Supreme Court affirmed the holding of the district court that these claims were barred by NRS 34.810 on the ground that Valerio had not raised them in his earlier post-conviction petition under NRS Chapter 177. See Valerio v. State,
“In order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well-established at the time of petitioner’s purported default.” Wells,
From our review of the Nevada cases,, it is plain that at the time of Valerio’s default the Nevada Supreme Court in capital cases had what we frankly regard as a commendable policy of exercising discretionary sua sponte power to overlook failures to present. constitutional claims in earlier proceedings. The court exercised this power both on direct appeal and on post-conviction review. It exercised this power when there was a failure to make the objection at trial; a failure to include the claim on direct appeal from the conviction and sentence; and a failure to include the claim in an earlier post-conviction petition. And it exercised this power in both published opinions and unpublished orders.
In Jones v. State,
[T]he power of this court to address plain error or issues of constitutional dimension sua sponte is well established. Because this case involves the ultimate punishment and because appellant’s claims of ineffective assistance of counsel are directly related to the merits of his claims, we will consider appellant’s claims on the merits in order to determine whether appellant received ineffective assistance of counsel.
Id. at 560,
In Valerio’s own case, on his first post-conviction petition under NRS Chapter 177, the Nevada Supreme Court exercised its sua sponte power, in a 1992 unpublished order, to address a constitutional claim that Valerio had failed to present on direct appeal. As recounted, supra, Valer-io challenged the “depravity of mind” aggravating-circumstance instruction in his Chapter 177 petition, but he had failed to challenge that instruction at trial or on direct appeal. The state district court said that the claim had not been raised, but then decided (and rejected) it on the merits. On appeal, the Nevada Supreme Court rejected the claim on the merits without mentioning the procedural default, and without analyzing it in the context of Valerio’s IAC claim. Cf. Pellegrini,
On review of Valerio’s second post-conviction petition, brought under NRS Chapter 34, the Nevada Supreme Court held in 1996 that claims 19-24 were procedurally defaulted because Valerio had failed to raise them in his earlier Chapter 177 petition. See Valerio v. State,
[Valerio] contends that since his petition presented errors of constitutional dimension on its face, and since this court has a “policy” of reviewing errors of constitutional dimension which appear on the face of the record irrespective of the doctrines of procedural default and waiver, the [Nevada] district court erred in failing to address the merits of Valer-io’s claim and should be reversed.
We note at the outset that reversal of the district court’s order for its failure to recognize this court’s “policy” of reviewing plain constitutional error is not mandated. Moreover, arguments regarding the consistent or inconsistent applications of a procedural bar are aimed at the federal courts rather than this court. See Kills on Top v. State,273 Mont. 32 ,901 P.2d 1368 , 1386 (1995). In any event, contrary to the assertion of the Ninth Circuit [citing McKenna v. McDaniel,65 F.3d 1483 , 1488 (9th Cir.1995)], we note that this court has not inconsistently applied post-conviction procedural bars.
Id. at 389-90,
I believe that this court has a proper and established policy of addressing facial errors of constitutional magnitude, in death cases [citing Pertgen v. State,110 Nev. 554 , 560,875 P.2d 361 (1994); Emmons v. State,107 Nev. 53 , 60-61,807 P.2d 718 (1991); Flanagan v. State,104 Nev. 105 , 108,754 P.2d 836 (1988)]. I*778 think it should follow such a policy in this case.
Id. at 390,
Based on the foregoing, we hold that in 1990 there'was no “clear, consistently applied, and well-established” rule in capital cases that prevented the Nevada Supreme Court from addressing constitutional claims on the ground that those claims had not been presented in earlier proceedings. The number and the variety of cases in which the Nevada Supreme Court addressed constitutional claims on the merits in capital cases, despite unexcused failures to present these claims in earlier proceedings, lead us to conclude that the court exercised a general discretionary power to address them.
Our conclusion comports with our prior case law addressing Nevada’s procedural bar rules. We have twice held that Nevada’s procedural rules barring petitioners from raising constitutional claims that could have been raised previously are not adequate to bar federal review in capital cases. In both cases we held that — at times shortly before Valeriq’s default — the Nevada Supreme Court had discretion in capital cases to consider constitutional claims despite a failure to raise those claims in earlier proceedings. See Petrocelli v. Angelone,
Our holdings in Moran v. McDaniel,
We therefore hold that the procedural bar asserted by the Nevada Supreme Court in Valerio’s case, preventing him from presenting claims 19-24 in his Chapter 34 petition, is not “adequate” to prevent review of those claims on federal ha-beas corpus. Our holding that the federal district court erred in finding these claims procedurally defaulted necessarily means that the procedural component of Slack has been satisfied.
Because the district court dismissed claims 19-24 for procedural default, the substantive component of Slack requires only that we “simply take a ‘quick look’ at the face of the complaint” to determine if Valerio has made a facial allegation of the denial of a constitutional right. Claims 19-24 all allege ineffective assistance of trial counsel, in violation of the Sixth Amendment. The substantive component of Slack is thus satisfied.
We therefore grant an expanded COA with respect to claims 19-24 and-remand them to the district court.
With respect to the penalty phase, we hold that a Walton analysis is not available when a jury rather than a judge has determined whether there were aggravating and mitigating circumstances. We also hold, however, that even if a Walton analysis were available, the Nevada Supreme Court failed to provide “close appellate scrutiny” and therefore failed to cure the instructional error. Because we find the error not harmless under Brecht v. Abra-hamson, we reverse the district court’s dismissal of Valerio’s petition as to the death penalty.
With respect to the guilt phase, we conclude that Ninth Circuit Rule 22-1 does not apply to Valerio’s request for an expanded COA as to claims 4-8, 10-12, and 16-25. We therefore grant an expanded COA as to those claims. We reverse the district court’s dismissal óf claims 16(h), 17(m) and 25 for abuse of the writ; reverse its dismissal of claims 4-8, 10-12, 16(b) — 16(e), 16(g), 16G)-16(Z), 16(n)-16(p), 16(t)-16(w), 16(z), 16(aa)-16(kk), 17(a), 17(c), 17(e)-17(i), 17(k), and 18-24 for procedural default; and remand all these claims to the district court for appropriate consideration.
Should the district court deny or dismiss Valerio’s guilt-phase claims after appropriate consideration, we instruct the district court to grant the writ as to the death sentence unless, within a reasonable time, the state either grants a new penalty-phase trial or vacates the death sentence and imposes a lesser sentence consistent with the law. We also instruct the district court to grant such interim relief as may be appropriate during the pendency of further guilt-phase habeas proceedings.
REVERSED and REMANDED with instructions.
Notes
. Between 1967 and 1993, there were two types of post-conviction relief available to petitioners in Nevada: one under NRS Chapter 177 (post-conviction relief), and one under NRS Chapter 34 (habeas corpus). See Pellegrini v. State, 117 Nev. -,
. Valerio did not pursue an appeal for claim 13.
. Later in this opinion, we hold that the district court erred in dismissing three newly added claims for abuse of the writ. See infra, Part IV. It is possible, though not certain, that none of these claims is exhausted. Because the district court had dismissed these three claims, the petition was not a mixed petition when the district court denied Valerio’s claim that the aggravating circumstance jury in-struclion was unconstitutional. However, as a result of our reversal of the district court's dismissal of these claims, the petition has become mixed. We nonetheless believe that it is appropriate for us to rule on Valerio's appeal of the district court's decision on the merits of his exhausted jury instruction claim. See discussion infra, Part IV.
. The words chosen by the state district court make clear that it addressed defendant's argument on the merits, rather than addressed in an advisory fashion an argument it considered waived. It noted that the argument "was not raised on direct appeal,” and then went on to discuss the argument and reject it on the merits. It never stated that it was treating the argument as waived. By contrast, the district court explicitly treated petitioner’s next argument as waived. In the paragraph immediately following its discussion of the constitutionality of the aggravating circumstance, it wrote, “Petitioner’s contention that he had not been formally convicted of the offense against Angela Howell was not raised on the direct appeal and is considered waived. NRS 177.375” (emphasis added).
. Because the Nevada Supreme Court rejected Valerio's claim on the merits, there is no obstacle to our reviewing it on habeas corpus. "If a state appellate court overlooks the procedural default and considers an objection on the merits, the state has not relied on the procedural bar and the federal courts may review the claim.” Thomas v. Hubbard,
. In Ring v. Arizona, - U.S. -, -,
We also do not reach the question of whether, if Ring overrules appellate court factfind-ing under Walton, that ruling is applicable on federal habeas corpus as a “watershed rule[ ] of criminal procedure” that "implicate[s] the fundamental fairness of the trial.” Teague v. Lane,
. Because the dissenting opinion does not recognize the distinction the Supreme Court has drawn between state appellate court fact-finding under Walton and reweighing under Clemons, it erroneously concludes that the Supreme Court has approved appellate court factfinding under Walton when the trial court factfinder was a jury. The dissent cites no case in which the Supreme Court has approved a Walton analysis when the factfinder was a jury.
. Under Robins, the phrase "beyond the act of killing itself' modifies all three conditions: torture or mutilation or depraved physical abuse.
. The federal district court also granted a COA, and Valerio has pursued an appeal, on claim 15, on the issue of the sufficiency of the evidence, during the penalty phase, of torture and mutilation. To some degree, analysis of this issue has been subsumed in our analysis of the erroneous aggravating-circumstance jury instruction. To the degree that this issue is free-standing; it is moot in light of our granting of the writ as to the penalty phase.
. We note that we are currently considering amendments to Circuit Rule 22-1. However, those amendments have not yet been promulgated.
. Cruz-Mendoza I was amended on. December 31, 1998, to conform to Circuit Rule 22-1, which became effective the next day. See Cruz-Mendoza II,
. We note that amendments to Federal Rules of Procedure are generally accompanied by an order of the Supreme Court providing that
. . Because we remand 'some exhausted claims, as discussed in Part V, infra, some
. The claims in Valerio's current federal petition are identical to, and have the same numbering as, the claims in his second state petition, with the exception of the three newly added claims, an amendment to 16(h), and claims 17(m) and 25.
. NRS 34.810 provides:
1.The court shall dismiss a petition if the court determines that:
(b) The petitioner's conviction was the result of a trial and the grounds for the petition could have been:
(1) Presented to the trial court;
(2) Raised in a direct appeal or a prior petition for a writ of habeas corpus or post-conviction relief; or
(3)Raised in any other proceeding that the petitioner has taken to secure relief from his conviction and sentence, unless the court finds both cause for the failure to present the grounds and actual prejudice to the petitioner.
2. A second or successive petition must be dismissed if the judge or justice determines that it fails to allege new or different grounds for relief and that the prior determination was on the merits or, if new and different grounds are alleged, the judge or justice finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
3. Pursuant to subsections 1 and 2, the petitioner has the burden of pleading and proving specific facts that demonstrate:
(a) Good cause for the petitioner’s failure to present the claim or for presenting the claim again; and
(b) Actual prejudice to the petitioner.
. Because Valerio had presented the claims in his first petition, brought pursuant to NRS Chapter 177, the Nevada Supreme Court held that these claims were barred for state purposes when Valerio raised them again in his Chapter 34 petition. However, the claims had been presented to the Nevada state courts and thus were ■ properly exhausted, and not procedurally barred, for purposes of federal review. Those claims are 1-3 (asserting prejudicial admission of evidence); 9 (improper and prejudicial closing argument during the guilt phase); 13 (improper closing argument by the prosecutor in the penalty phase); 14 (vague instruction on aggravating circumstance in the penalty phase); 15 (insufficiency of the evidence of torture and mutilation); 16(a), (f), (h), (i), (m), (q)-(s), (x), and (y) (ineffective assistance of trial counsel); and 17(b), (d), (j), and (Z) (ineffective assistance of appellate counsel).
. As noted earlier in the opinion, those claims were numbers 13, 14 and 15. Valerio did not pursue claim 13 on appeal. Claim 14 is the basis for our setting aside the death penalty. To some extent, claim 15 is subsumed in our analysis of claim 14; to the extent claim 15 is freestanding, it is moot in light of our holding as to claim 14.
. We note that although Valerio has not requested an expanded COA to address the district court’s dismissal of his guilt phase claims listed supra in footnote 16, he has contested in his brief the district court's dismissal of his claim of cumulative error on the ground of procedural default. Because we remand the cumulative error claim for consideration on the merits, see discussion infra, to the extent that claims 1-3; 9; 16(a), (f), (h), (m), (q)-(s), (x), (y); and 17(b), (d), (j), (l) are included in the cumulative error claim, they are before the district court on remand.
. Those claims are 4-5 (prejudicial admittance of evidence during trial); 6-7 (violation of right to confrontation); 8 (prejudicial admittance of evidence during trial); 10 (improper closing argument by the prosecutor during the guilt phase); 11 (prejudicial admittance of evidence during trial); 12 (failure to preserve evidence); 16(b)-l 6(e); 16(g); 16(j)-16(Z); 16(n)-16(p); 16(t)-16(w); 16(z); 16(aa)-16(ldt) (ineffective assistance of trial counsel); 17(a); 17(c); 17(e)-17(i); 17(k) (ineffective assistance of appellate counsel); 18 (cumulative error); 19-24 (ineffective assistance of trial counsel).
. The particular subparts of claims 16 and 17 at issue are set forth in footnote 19, supra.
. Because we hold, based on Bean and Coleman v. Thompson, that there was no adequate state ground for finding procedural default in state court as to claims 1-18, we do not need to reach Valerio's additional contention, as to these claims, that the Nevada state courts did not apply their procedural default rules with sufficient regularity to bar federal habeas corpus review.
. For the sake of clarity, we note again as to claims 16 and 17 that we grant the expanded COA only as to the following subparts: 16(b)-16(e); 16(g); 16(j)-16(Z); 16(n)-16(p); 16(t)~ 16(w); 16(z); 16(aa)-16(kk); 17(a); 17(c); 17(e) — 1 V(i); 17(k).
. To the extent that any of these remanded claims address allegations of unconstitutional wrongs with respect to the penalty phase, including portions of claims 16(k), 16(cc)-16(kk), 17(j), and 17(k), those claims are moot in light of our granting the writ as to the penalty phase.
Dissenting Opinion
with whom ■ Circuit Judges O’SCANNLAIN, T.G. NELSON, and GRABER join, Dissenting.
Today the majority reaches a claim that should not be reached' — whether the Nevada Supreme Court could or did cure the “depravity of mind” aspect of the “torture, depravity of mind and mutilation” aggravating circumstance — and holds, without warrant, that a state supreme court may not apply a narrowing construction to an unconstitutionally vague instruction and determine that it is supported by the evidence as applied, when the penalty-phase factfinder is a jury instead of a judge.
Neither this issue nor its companion, whether substantial evidence supports the aggravator, should be reached because the effect of the court’s other decision — to treat Valerio’s briefing as a request for a broadened Certificate of Appealability (COA), and to grant that request — is to revive a number of guilt-phase claims. Some of these claims are unexhausted. This means that Valerio’s petition is now a mixed petition, subject to dismissal under Rose v. Lundy,
Beyond this, the majority’s holding that a state appellate court lacks authority to cure an unconstitutional instruction by a narrowing construction whenever the sentence is determined by a jury is simply wrong. Clemons v. Mississippi
I therefore dissent both from the discussion, and the decision, in Part II.
I would also come out differently on whether to treat Valerio’s briefing as a request to broaden his COA. However, unlike .the .decision on the constitutional issue, the decision on this question is quite limited because it can only apply to petitioners who appear to have been caught in the middle during the six months between our decision on June 23, 1998, in United States v. Cruz-Mendoza,
I
A
In my view, the majority’s opinion puts the cart before the horse by starting with Valerio’s claim arising out of the “torture, depravity of mind, or mutilation of the victim” aggravating circumstance found by the jury. Instead, given the way the majority answers it, the foundational question turns out to be whether a broadened COA
The district court denied three of Valer-io’s claims outright and granted a COA on each. Valerio pursues two of these claims on appeal (Claim 14, vague instruction on aggravating circumstance in penalty phase; and Claim 15, insufficiency of the evidence of torture and mutilation). The district court also dismissed a number of-claims on the ground of abuse of the writ or procedural default. It denied a COA as to these rulings, however the majority broadens Valerio’s COA to include them. Having granted the COA, the majority reverses the district court’s procedural rulings and remands for the district court to resolve the affected claims on the .merits. But three of these claims are unexhausted. The majority recognizes that its decision to reverse the district, court’s procedural rulings has produced a mixed petition under Rose v. Lundy, and that the district court must dismiss or stay the petition unless the unexhausted claims are deleted. See op., supra at 768 and 770-71. Nevertheless, it reaches and resolves the merits of the aggravating circumstance claim, which is part of the same petition.
Because there are parts and subparts to contend with, it is easier to illustrate the problem by supposing a petition that consists of Claims A, B and C. Claim A is exhausted, was resolved on the merits, and is certified by the district court. Claims B and C were dismissed on procedural grounds, but the procedural rulings are not certified; substantively, Claim B is not exhausted although Claim C is. There is no mixed petition at this point because Claims B and C are out of the picture. On appeal, we grant a broadened COA as to Claims B and C and reverse the district court’s procedural rulings. Claims B and C are now revived on the merits. Because Claim B is not exhausted, the petition is mixed. The mixed petition includes Claims A, B and C — not just Claims B and C. All of them must be dismissed or stayed while Claim B is exhausted, unless Claim B is dropped.
I realize that exhaustion is not jurisdictional, and that courts of appeals may review the merits of a petitioner’s claim in unusual circumstances even though some claims are unexhausted. However, exceptions to the general rule exist primarily when the state has waived the exhaustion requirement or when the unexhausted claim lacks merit and can easily be resolved. See, e.g., Strickland v. Washington,
A second reason that I would not review the aggravating circumstance issue is that it is a sentencing issue that we may never have to deal with. Among other things, Valerio’s guilt-phase claims challenge the effectiveness of both trial and appellate counsel, the .prosecutor’s compliance with Brady v. Maryland,
Third and finally, I would not consider the aggravating circumstance claim as posed by-the majority, because the parties never developed the issue in the way that the majority frames and decides it.
B
Valerio does not argue that “Walton appellate factfinding [is] unavailable when [the] penalty-phase factfinder was a jury,” op., supra at 758; indeed, Valerio acknowledges that under Walton v. Arizona,
I would not go on this venture at all but, were I to, I would question each step of the way.
l
The majority assumes that Walton controls,
The majority’s conclusion also cannot stand on its other central premise — that a state appellate court’s ability to cure instructional error in an aggravating circumstance stems only from Walton. It does not. It also stems from Clemons, Maynard, and Godfrey v. Georgia,
The petitioner in Godfrey was sentenced to death by a jury based on a verdict finding that the offense of murder was “outrageously or wantonly vile, horrible and inhuman.” The aggravating circumstance permitted a person to be sentenced to death if the jury found beyond a reasonable doubt that the offense “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Even though the Georgia Supreme Court had previously upheld death sentences based on the presence of torture or an aggravated battery, in this case it affirmed solely on the basis of the jury’s finding that the offense was “outrageously or wantonly vile, horrible and inhuman.” The United States Supreme Court held that this application of the aggravating circumstance was unconstitutional, because a finding that a murder was “outrageously or wantonly vile, horrible and inhuman” is standardless and unchanneled. It reversed because the jury’s uncontrolled discretion was “in no way cured by the affir-mance of those sentences by the Georgia Supreme Court.” Godfrey,
Clemons was also a jury case. Clemons argued that it was constitutionally impermissible for an appellate court to uphold a death sentence imposed by a jury that has relied in part on an invalid aggravating circumstance. This is basically the same proposition that the majority accepts, but the Supreme Court rejected. The Court held that an appellate court may weigh the valid aggravating circumstances against mitigating circumstances without the assistance of written jury findings, or it may find that the error which occurred during the sentencing process was harmless. Clemons,
Walton says nothing to the contrary. The majority infers that Walton cannot be used to cure an unconstitutionally vague aggravating-circumstance jury instruction from the fact that the Supreme Court “found” Maynard and Godfrey “not controlling” because the death sentences in those cases had been imposed by juries. Op., supra at 757-58.
If there were any doubt whether Walton left appellate courts able to salvage a death sentence based in part on an invalid aggravating circumstance when the penalty phase factfinder is a jury (which I don’t think there is), Stringer, which came down after Walton, should dispel it. Stringer also involved a jury finding based on an invalid aggravating factor and it also acknowledges the availability of an appellate cure by way of harmless error analysis. Stringer,
Nor does Pertgen v. State,
*787 Our inquiry does not end at this juncture, however. In Clemons v. Mississippi, the United States Supreme Court confirmed that reweighing and harmless error analyses, though not required, are constitutionally permissible under appropriate circumstances. Likewise, it is permissible for us to remand for resen-tencing when the circumstances necessitate such action. We have elected to follow each of these alternatives under appropriate circumstances.
Pertgen,
For all these reasons, I would not reach the issue whether the Nevada Supreme Court could cure the “torture, depravity of mind and mutilation” aggravating circumstance, but if forced to, I would hold that the Nevada Supreme Court could apply a narrowing construction to the unconstitutionally vague instruction in this case and determine that. the aggravating circumstance found by the jury is supported by the evidence as applied.
2
Alternatively, the majority holds that the Nevada Supreme Court failed to give “close appellate scrutiny” to its application of the narrowing definition that it adopted for the “torture, depravity of mind' and mutilation” ' aggravating circumstance. This comes from Stringer, which requires “close appellate1 scrutiny of the import and effect of invalid aggravating factors to implement the well-established Eighth Amendment requirement of individualized sentencing determinations in death penalty cases.” Stringer,
I assume by its citation to Robins that the Nevada Supreme Court considered and rationally applied its own recent precedent. Thus, the court concluded that the “torture, depravity of mind and mutilation” aggravating circumstance was not based solely upon a “depravity of mind” aspect as it was in Godfrey, but also on torture and serious physical abuse. Nevada’s aggravating circumstance contains
While reasonable minds can certainly disagree about the disposition’s clarity, I question how the state’s highest court can fall short of “close” appellate scrutiny simply by stating that it “agreed” with the trial judge that the murder involved “torture (or serious physical abuse)” when the trial judge had only discussed torture, and that it was “satisfied” that this is what the evidence showed. Op., supra at 759. I should think it unremarkable that torture encompasses “serious physical abuse” when, as here, the victim was stabbed forty-five times by a knife, mostly in patterns of eight, on targeted parts of her body.
In any event, the majority has concluded that the Nevada Supreme Court fell short of the mark. Having done so, I would be guided by what the Supreme Court did in Richmond v. Lewis,
3
Assuming that I got there, my own harmless error determination would also differ from the majority’s. ■ The majority opts to apply the harmless error standard in Brecht v. Abrahamson, 507, U.S. 619,
Karen Blackwell was twenty-seven years old when she went to Valerio’s hpuse on September 19, 1986. Ten days later, her partially clothed body was found in the back seat of a car parked at a Las Vegas apartment complex.
Blackwell had been stabbed forty-five times, had blunt trauma lacerations to the right side of the head, and had “defensive” wounds or cuts in the left upper arm, and right hand. Most of the wounds occurred in 'groups of eight. There were eight stab wounds on the top of her head, in a cluster of about two inches. These wounds penetrated the skin but did not go into the skull. Blackwell was stabbed eight times on the front of her neck, again in a small cluster, and eight times in a cluster on the back of her neck. Valerio also stabbed Blackwell eight times (in an arc) in the right breast, and eight times in the left breast. Then there were three stab woúnds in the abdomen, leading down to one stab wound in the vaginal area.
When found, Blackwell’s body was wrapped in Valerio’s bedding. Blood was found in Valerio’s bedroom. Blackwell’s
Based on this evidence, I would hold that a rational factfinder could have found that Valerio subjected Blackwell to torture or serious physical abuse. See, e.g., Jones v. State,
II
I also part company with the majority’s approach to broadening the Certificate of Appealability. The chronology shows why Valerio’s briefing should not count as a request to expand his COA, so I recite it completely.
Since April 24, 1996, appeals from dismissal of habeas corpus petitions have been governed by the certificate of appeal-ability requirements of AEDPA. 28 U.S.C. § 2253(c). However, AEDPA simply provides that an appeal may not be taken from a final order in a habeas corpus proceeding unless “a circuit justice or judge” issues a COA that indicates the specific issues upon which the petitioner has made a substantial showing of the denial of a constitutional right. We decided early on that requests for a COA could be made in the first instance to the district court, United States v. Asrar,
We first considered how to treat such cases in Cruz-Mendoza I. The petitioner there had filed a § 2255 petition, which the district court denied. He sought a COA in the district court on all issues, but it was not granted on one of them. He did not separately request a COA from a motions panel of our court on the uncertified issue, but briefed it and requested in his opening brief that a COA be granted. We held that, “in the interest of efficiency, where a district judge has issued a COA on some but not all of the issues, we will treat the briefing of an uncertified issue as a request for a COA and first decide whether one should issue.” Cruz-Mendoza I,
The district court dismissed Valerio’s § 2254 petition on August 19, 1998. He filed a notice of appeal September 18, 1998, and on October 15, 1998, the district court granted a COA as to Ground 14 (vague instruction on aggravating circumstance in penalty phase) and Ground 15 (insufficiency of the evidence on torture and mutilation) but otherwise denied it.
The scenario in Cruz-Mendoza I highlighted the need for a procedure to handle
Stating that Rule 22 — 1(d) was intended to clarify how cases should be handled in which the district court had declined to certify some of the issues, the Cruz-Mendoza panel amended Cruz-Mendoza I on December 31, 1998. Cruz-Mendoza II deleted that part of Cruz-Mendoza I which had held that when a district judge has issued a COA on some but not all issues, briefing of an uncertified issue would be treated as a request for a COA. Cruz-Mendoza II,
Valerio requested and received a number of extensions after January 1 for filing his opening brief on appeal. However, he did not request that the COA be broadened. He filed his opening brief May 12, 1999. The brief does not request a COA on uncertified issues, but discusses them.
In its answering brief the state asserted that Valerio’s arguments with respect to procedural default and abuse of the writ should not be considered because they were not certified. Valerio responded that he had made these arguments in the district court, hence it would not be unfair to the state for them to be considered by this court; that AEDPA is inapplicable to his petition; and that regardless, he could show the denial of a constitutional' right so he meets the AEDPA standard.
After oral argument, the panel provided the parties a tentative decision and an opportunity to respond to it. The tentative disposition indicated that AEDPA applies to the petition, and that the court would not reach uncertified issues bn which Valerio had failed to request' a broadened COA. Valerio’s response did not mention or challenge the refusal to consider uncertified issues. Nor did Valerio’s response request that the COA be expanded.
After the decision was filed, Valerio filed a petition for rehearing which argued for the first time that as of October 16, 1998, when the district court granted in part and denied in part his request for a COA, this court allowed a petitioner to brief uncerti-fied issues and to construe that briefing as a request for certification on those issues.
Absent any request in any form, I do not believe that the court has any obligation
Valerio has offered no explanation for failing to ask this court to consider uncerti-fied issues. AEDPA requires a COA. He only obtained part of what he asked for from the district court. This court cannot review uncertified issues. So he had to get permission, somehow. AEDPA prescribes no particular procedure. Cruz-Mendoza I — which did — said that briefing would suffice, but it was withdrawn long before Valerio filed his brief.
Rule 22-1 (d) replaced Cruz-Mendoza I and restates the obvious: a petitioner must seek permission to pursue uncertified issues from the court of appeals, and certification must in fact be granted. As we observed in Hiivala v. Wood,
Neither this post-AEDPA reality, nor the timing requirements of Rule 22 — 1(d), attached new legal consequences to anything that Valerio had completed before it was enacted; nothing had been done on this appeal before Rule 22-l(d) became effective. The normal practice in these circumstances is to apply a procedural rule to pending cases when doing so is “just and practicable.” See, e.g., Order of April 23, 1996, West Federal Civil Judicial Procedure and Rules 442 (2002) (amendments to the Federal Rules of Appellate Procedure “shall govern all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings in appellate cases then pending”); Landgraf v. USI Film Prods.,
Applying the Rule is practicable. Although it certainly would have been impossible for Valerio to ask this court for a broader certification within thirty-five days of the district court’s order because he did not know that he was supposed to, this changed as of December 31, 1998. As of then he knew for sure that he had to seek broader certification apart from briefing. Valerio suggests no reason why it was impracticable to do so. Instead, Valerio chose to ignore both Cruz-Mendoza II and this court’s statement in Rule 22-1 (d) that it would not consider uncertified issues, and to brief uncertified issues anyway without, even then, acknowledging that the issues were uncertified or requesting that they be certified.
In these circumstances I do not believe that it is unjust to decline to treat briefing as the functional equivalent of a request to broaden the COA. That option was withdrawn four months earlier, and therefore could engender no expectations. Valerio and amicus now argue that injustice will result because the uncertified issues have merit. But this cannot be the proper measure, for then we would always consider issues that have been waived if they are meritorious but wouldn’t if they aren’t. This is not our practice. See, e.g., Parrino v. FHP, Inc.,
The majority’s focus on the absence of direction in Rule 22-1 (d) to a petitioner in Valerio’s position seems misplaced to me, for it leads them to conclude that it was not unreasonable for Valerio to assume that the Rule did not apply to him — particularly, as the opinion states, “given that, prior to the adoption of the Rule, Cruz-Mendoza I had specifically approved briefing to the court of appeals as a mechanism for seeking an expanded COA.” Op., supra at 765. However, I do not see how this can be so in light of the demise of Cruz-Mendoza I four months before Valerio’s briefing was submitted. In sum, Valerio made no request for a broadened COA. After Cruz-Mendoza II, there was no basis for him to assume that briefing would be treated as a request for broader certification. Valerio knew this. He has not offered any compelling reason why Rule 22 — 1(d) could not practicably and justly be applied to petitioners, such as he, who had submitted no briefing in reliance on Cruz-Mendoza I. Far more than thirty-five days elapsed, even if Valerio’s briefs should be treated as a viable request. Thus, for the reasons explained in Zuno-Arce, which I would not overrule, I would not consider the uncertified issues.
Ill
Conclusion
Although I would not reason as the majority does in granting a broadened COA, I appreciate why it feels impelled to do so. However, having broadened Valerio’s COA to include all claims previously dismissed on procedural grounds, and having reversed the district court’s ruling on abuse of the writ and state-court procedural default, the court has revived all of Valerio’s guilt-phase claims including several that are unexhausted. The petition is now a mixed petition, which is subject to dismissal. I would not pick out one among many exhausted claims to make new constitutional law on, particularly when the claim that is singled out is a sentencing claim. There is no need to resolve whether the Nevada Supreme Court may, or did, cure an unconstitutionally vague aggravating-circumstance instruction unless and until it is determined that no writ shall issue on the guilt phase. But if the merits are reached, a state appellate court may sal
. This is so whether or not we have worked on the issue, for advisory opinions are to be avoided even at the cost of a "colossal waste of time." See op., supra at 770.
. Amicus takes a position closer to that adopted by the majority, as it argues that no Nevada court can make the finding of an aggravating circumstance in place of the jury under Apprendi v. New Jersey,
. Given the evidence of how and where Valer-io stabbed the victim, a rational factfinder could have found that she was subjected to torture and/ or serious physical abuse. Valer-io's argument that the repeated blows show panic or frenzy lacks any support in the record. Whether the Nevada Supreme Court failed to apply the Robins limiting construction correctly is a matter of state law for which federal habeas corpus relief does not lie. Jeffers,
. Although the majority’s opinion decides the issue on the assumption that Walton’s analysis of appellate review of death sentences controls, its approach is inevitably influenced by the view, which it also offers, that this aspect of Walton "is invalid under the rationale of Ring [.]” Op., supra at 756 n. 6. However, Ring makes clear that it overrules Walton only "in relevant part." Ring, - U.S. at -,
.We can put reweighing aside here, because there was nothing for the Nevada Supreme Court to reweigh. It did not toss out any aggravating circumstance, rather it upheld
. The text from Walton upon which the majority relies states:
When a jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process. It is not enough to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face. That is the import of our holdings in Maynard and Godfrey. But the logic of those cases has no place in the context of sentencing by a trial judge.
Walton,
. The text from Pertgen upon which the majority relies is as follows:
*787 Although the Court [in Walton ] upheld the imposition of a death sentence, Walton is factually distinguishable from the present case. In Walton, the death sentence was imposed by a trial judge, who is presumed to know the law and .to apply it in a constitutional manner. By contrast, in this case the death sentence was imposed by .a jury.
Pertgen,
. Ever since Robins, the Nevada Supreme Court has construed NRS 200.033(8) as an aggravating circumstance where the murder involves torture or serious physical abuse, a term that it uses synonymously with mutilation. See, e.g., Jones v. State,
. The majority makes much of the fact that the state declined to argue that Valerio subjected the victim to torture, but that can't make a difference because the prosecutor's focus was on mutilation. His closing argued: "We have a body here, the body of Karen Sue Blackwell, which had 45 knife wounds, three, I can't remember the number, some abrasions to the top of the head. This body was mutilated, was it not from the top of the head to the vaginal area. That body was mutilated, pure and simple. That must be the definition of mutilation." Defense counsel likewise focused on mutilation, arguing: "Is it a mutilation worse than others? Well, this certainly is worse than you have in some murders, yeah. It’s not one gunshot wound. It's also not as bad as you have in some other cases. So you have to decide. No limbs were cut off. It's not one of those cases where you read in the paper the head was found separated from the body. It’s not one of the cases where you find words carved in the body. Is it mutilation? You have to decide."
. The court also granted a COA on a third ground, but Valerio does not pursue it on appeal.
. Normally arguments raised for the first time in a motion to reconsider, that could have been raised before, are waived. Beech Aircraft Corp. v. United States,
Concurrence Opinion
Concurring.
Because neither party raised the application of Walton v. Arizona,