Pellegrini v. StatePellegrini v. State
In this appeal, we are asked to decide whether
FACTS
Pellegrini was convicted, pursuant to a jury verdict, of the burglary of a Las Vegas 7-Eleven store and the attempted robbery and first-degree murder, both with the use of a deadly weapon, of store clerk Barry Hancock. For the murder, he was sentenced to death. 1 Pellegrini then appealed to this court. In rejecting Pellegrini’s contentions on appeal, we concluded that overwhelming evidence supported Pellegrini’s conviction. We noted the evidence included eyewitness testimony and a videotape showing Pellegrini’s activities in the store area before and after Hancock, who was handcuffed and helpless in a back room of the store, was shot in the head at close-range. We also noted that Pellegrini conceded that he shot Hancock, but testified that he fired the gun accidentally when he stumbled. 2 Ultimately, we affirmed Pellegrini’s conviction and death sentence. 3 Remittitur issued on December 13, 1988.
Pellegrini then filed a petition for a writ of habeas corpus in federal district court. The federal court stayed its consideration of Pellegrini’s petition pending exhaustion of his claims in state courts.
In December 1989, Pellegrini filed, pursuant to former
In lieu of testifying at the evidentiary hearing, Pellegrini submitted an affidavit, wherein he stated that due to his intoxicated condition at the time of the crimes, he “had no independent clear recollection of what actually happened when Barry Hancock was shot” and could only partially recall what transpired inside the store. He stated that when he had informed trial counsel of his lack of recall, counsel told him tо testify that the gun was cocked and “went off” when he stumbled. The district court heard testimony from trial counsel and rejected Pellegrini’s claim that counsel had convinced him to testify falsely. On November 5, 1991, the district court entered its order denying relief on all claims raised in the 1989 petition.
On appeal to this court, we rejected Pellegrini’s challenges to the district court’s order denying the petition. We concluded that the district court’s finding that counsel had not persuaded Pellegrini to testify falsely was supported by substantial evidence. We also concluded that the district court did not err in denying the remaining claims of ineffective assistance of counsel without an evidentiary hearing because these “were either ‘naked’ claims for relief or were repelled by the record.” We finally concluded that the denial without an evidentiary hearing of Pellegrini’s claims relating to deprivation of a fair trial was proper because these claims were waived when Pellegrini failed to raise them at trial or on direct appeal. We ordered Pellegrini’s appeal dismissed on May 28, 1993. 4
Pellegrini again petitioned for a writ of habeas corpus in federal district court. On
On April 12, 1999, more than ten years after issuance of remit-titur on direct appeal and nearly six years after this court dismissed the appeal from his first post-conviction petition, Pellegrini filed a post-conviction petition for a writ of habeas corpus in state district court. In this petition, Pellegrini raised numerous claims of trial court error and ineffective assistance of trial, appellate and post-conviction counsel. Among these were claims that counsel had failed to investigate and present evidence and argument that Pellegrini was not guilty by reason of insanity and was not deserving of a death sentence because he suffered from Multiple Personality Disorder (“MPD”) at the time of the crime. In support of the MPD-related claims, he attached a declaration by psychologist Nell Riley, Ph.D. As cause for failing to present his claims earlier, Pellegrini alleged ineffective assistance of trial, appellate and post-conviction counsel.
The State opposed the second petition and argued that it was procedurally barred as untimely under
In his reply, Pellegrini argued that the time bar at
In its surreply, the State asserted the procedural bar for laches at
The district court heard argument from counsel and on March 20, 2000, denied the petition. Without addressing the laches bar, the court concluded that all of Pellegrini’s claims were or could hаve been brought within one year of the effective date of
DISCUSSION
Application of procedural bars to Pellegrini’s claims
Pellegrini challenges the district court’s determination that his claims were barred under the provisions of
1.Unless there is good cause shown for delay, a petition that challenges the validity of a judgment or sentence must be filed within 1 year after entry of the judgment of conviction or, if an appeal has been taken from the judgment, within 1 year after the supreme court issues its remittitur. For the purposes of this subsection, good cause for delay exists if the petitioner demonstrates to the satisfaction of the court:
(a) That the delay is not the fault of the petitioner; and
(b) That dismissal of the petition as untimely will unduly prejudice the petitioner.
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. [6]
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.
Both statutes require a petitioner to demonstrate a valid basis exists to excuse the procedural bars. 7 Otherwise, the district court must dismiss the petition without an evidentiary hearing. 8
We have previously applied the time bar at
The right to seek the remedy of habeas corpus is protected by the Nevada Constitution. 11 Article 1, Section 5, states: “The privilege of the writ of Habeas Corpus, shall not be suspended unless when in cases of rebellion or invasion the public safety may require its suspension.” 12 As late as 1967, however, no statutory framework existed to govern the procedure for obtaining post-conviction relief, though the constitutional right to petition for habeas corpus relief was recognized in Chapter 34 of the NRS. 13 That year, our Legislature enacted the Nevada Criminal Procedure Act (“1967 Act”), providing for procedures to obtain post-conviction relief, 14 which were ultimately codified at NRS Chapter 177 (“Chapter 177 remedy”). Because the drafters of the 1967 Act intended “to offer but one remedy” in post-conviction, 15 they designated the Chapter 177 remedy as “habeas corpus” 16 and made it the exclusive means of collaterally attacking the validity of a conviction or sentence. 17
Unfortunately, the drafters of the 1967 Act overlooked the limits to the constitutional grant of jurisdiction over writs of habeas corpus. Article 6, Section 6, provided: “The District Courts, and the Judges thereof shall . . . have power to issue writs of Habeas Corpus on petition by, or on behalf of any person held in actual custody in their respective districts. ” 18 The 1967 Act, however, vested jurisdiction over the Chapter 111 remedy in the district court “in which the conviction took place.” 19 This oversight proved to be fatal to the intent of offering a single post-conviction remedy.
In
Marshall
v. Warden,
20
this court addressed the constitutionality of the 1967 Act in light of the jurisdictional limits on the
In 1969, the Legislature amended NRS Chapters 34 and 177 to delete the provisions making the Chapter 177 procedurе the exclusive means of obtaining post-conviction relief. 23 Reference in Chapter 177 to its remedy as “habeas corpus” was deleted and replaced by reference to “post-conviction relief.” 24
In subsequent sessions, the Legislature incrementally amended Chapters 34 and 177 to curtail the ability to alternatively use the two remedies and to limit the filing of successive or delayed applications for post-conviction or habeas relief. For instance, aside from the exclusive remedy provision severed as a result of
Marshall,
the only procedural bar contained in either chapter in 1967 was the provision eventually codified at
A petitioner may not file a petition for a writ of habeas corpus unless he previously filed a petition for post-conviction relief pursuant to [Chapter 177], or demonstrates good cause for the failure to file a petition for post-conviction relief or meet the time requirements for filing a petition for post-conviction relief and actual prejudice to the petitioner. 32
This amendment eliminated the availability of habeas corpus as an “alternative” remedy, as we had earlier recognized it in Marshall,
33
The movement toward abolishing the dual remedy system finally culminated in the 1989 passage of Senate Joint Resolution (“SJR”) 13, which proposed to amend the Nevada Constitution to extend the jurisdiction to issue writs of habeas corpus to dis trict courts wherein petitioners suffered their criminal convictions. 36 The proposal was intended to set the stage for the Legislature to increase efficiency by consolidating the dual post-conviction remedies while retaining the jurisdictional reach of Chapter 177 to courts of conviction. The latter was necessary to ease the burden on courts in districts where most prisoners are incarcerated and allow the courts already familiar with the case to rule on a petitioner’s claims challenging his conviction and sentence. 37
In anticipation of the approval and passage of SJR 13, this court appointed a committee to study the impact of the constitutional amendment and to propose and draft statutes necessary to adopt a single post-conviction remedy.
38
The committee’s efforts resulted in Assembly Bill (“AB”) 227, which proposed to amend Chapter 34 and repeal the post-conviction provisions in Chapter 177. The time bar provisions at
Pellegrini, with support from amicus, argues that the legislative history of the post-conviction habeas remedy reveals an intent to exempt successive petitions from the one-year time limit of
However, words in a statute will generally be given their plain meaning, unless such a reading violates the spirit of the act, and whеn a statute is clear on its face, courts may not go beyond the
statute’s language to consider legislative intent.
43
Thus, we are not at liberty to “ ‘go fishing in . . . the legislative mind’ ” where a statute is clear and unambiguous.
44
Further, when reviewing a legislative change in a statute, “ ‘[w]e are bound to presume that it was done ex industria, for the purpose of effecting the change which is effected in the law.’ ’ ’
45
Still, we must construe statutory language to avoid absurd or unreasonable results, and, if
Moreover, we conclude that application of the time bar to successive petitions does not violate the spirit of AB 227 or lead to absurd results. We have already recognized that the statutory time limit at
Furthermore, the application of
Nonetheless, even were we to consider the relevant legislative history, it does not support Pellegrini’s arguments. Nowhere in the legislative history is the intended effect of
Under the existing system, a prisoner has two chances at habeas corpus relief, one in the court of his conviction and one in the court in the district in which he is incarcerated. This amendment would allow the Legislature to specify only one comprehensive process, giving more finality to criminal convictions. By reducing costly paperwork, the amendment would also result in significant savings to the state. 53
Additionally, the bill sponsor’s testimony made clear that the effect of repealing the Chapter 177 remedy would be that “only one course of action would exist for a prisoner to challenge the constitutionality of his/her conviction or sentence.” 54
Pellegrini and amicus also argue that the doctrine of equitable estoppel prevents the State from asserting and the courts from applying
Pellegrini and amicus cite no authority that would support application of equitable estoppel to disregard a statute which is clear on its face. Further, we conclude that the doctrine may not be invoked under the circumstances presented here. “[E]quitable estoppel operates to prevent the assertion of legal rights that in equity and good conscience should be unavailable because of a party’s conduct.”
59
It requires justifiable reliance by the party
invoking the doctrine.
60
We have recognized that the doctrine generally may not be invoked against the government or its agencies
61
and that equitable principles will not justify a court’s disregard of statutory requirements.
62
“[T]he fact that the writ has been cаlled an ‘equitable’ remedy does not authorize a court to ignore . . . statutes, rules, and precedents.”
63
Here, Pellegrini cannot demonstrate any justifiable reliance on the testimony in question. We conclude that the testimony did not constitute representations that successive petitions were exempt from the time limit later codified at
Finally, Pellegrini argues that
Based on the foregoing, we conclude that under
Pellegrini’s claims numbered 4, 5, 9, and 10 and a variation of claim numbered 6 were raised and rejected on direct appeal. Variations of claims numbered 1, 3, 6, 9, 10, 12, 16, 17 and 19 were raised in Pellegrini’s first-post conviction petition and rejected by the district court in its denial of the petition, which we upheld on appeal. Our determinations on appeal are the law of the case.
66
To the extent that the district court determined the merits of these claims in denying the first petition, these claims are also barred under the successive petition provisions of
Pellegrini does not dispute this. However, he argues that this court applies procedural bars inconsistently in cases involving successive petitions, and, therefore, the application of
We emphasize that we are not asked to consider any issue of stare decisis — Pellegrini cites no prior decision of this court holding that the bars at
Even so, we take this opportunity to clarify the law regarding Nevada’s procedural rules because this is an argument arising with greater frequency, the United States Court of Appeals for the Ninth Circuit has in two opinions rejected the adequacy of our procedural bars for waiver, and we are concerned with the proper interpretation of Nevada’s procedural bars. First, we note that the Ninth Circuit Court of Appeals has recognized as adequate to prohibit federal habeas review Nevada’s statutory procedural bars both for claims that are untimely
73
and for claims in noncapital cases that were waived by the failure to raise them in a first petition
In McKenna, a capital case, the Ninth Circuit court held that federal review of the merits of a claim was not barred by this court’s decision affirming, on the ground of waiver, the lower court’s denial of a post-conviction claim of trial court error which was not raised on direct appeal. 77 The Ninth Circuit court stated:
[I]t would appear at first blush as if the Nevada Supreme Court made a plain statement that McKenna’s challenge to the depravity of mind instruction was procedurally waived because he failed to raise the issue on direct appeal. After noting the possibility of procedural default, however, the court went on to specifically reach the merits of the federal claim. This analysis was necessary to the court’s holding because in Nevada failure to raise constitutional claims on direct appeal does not necessarily bar consideration of those claims on collateral review. See Pertgen v. Nevada,110 Nev. 554 ,875 P.2d 361 , 364 (1994). . . . Thus, the court’s refusal to entertain McKenna’s complaints on collateral review, at best, represents a refusal to exercise discretion to hear the claim. This is insufficient for the State to invoke the procedural bar doctrine. 78
The Ninth Circuit court later followed McKenna in Petrocelli, where it held that, in the context of capital cases, Nevada’s procedural bar for waiver is discretionary and inadequate to prohibit federal court review of the merits of waived claims. 79 In concluding that Nevada courts have discretion in applying procedural bars to constitutional claims in capital habeas cases, the Petrocelli court relied on this court’s decisions in Jones v. State, 80 Hill v. State, 81 Paine v. State, 82 Pertgen v. State, 83 and Flanagan v. State. 84 The court also relied on Warden v. Lischko 85 to support the general conclusion that the application of Nevada’s procedural bars for waiver is discretionary. 86
We take this opportunity to clarify our prior case law relied on by the Ninth Circuit court in McKenna and Petrocelli. First, we acknowledge that our analysis in Pertgen, though much of it dictum, was unfortunately flawed. There, we stated:
Under certain circumstances, a valid claim of ineffective assistance of appellate counsel may establish good cause such that we may review apparently meritorious issues that should have been raised on direct appeal. Under the unique circumstances of this case, we consider appellant’s allegations to be sufficient to overcome this significant procedural hurdle. Moreover, the power of this court to address plain error or issues of cоnstitutional dimension sua sponte is well established. Emmons v.State, 107 Nev. 53 , 60-61,807 P.2d 718 , 723 (1991); see also Edwards v. State,107 Nev. 150 , 153 n.4,808 P.2d 528 , 530 n.4 (1991) (where appellant presents an adequate record for reviewing serious constitutional issues, this court will address such claims on the merits). 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. 87
This language confuses the waiver analysis as it applies to claims of ineffective assistance of counsel. Pertgen incorrectly indicated that procedural bars for waiver are applicable to claims of ineffective assistance of counsel initially brought in a first post-conviction proceeding. Ineffective assistance of counsel claims are properly raised for the first time in a timely first post-conviction petition; thus, the cause and prejudice analysis is not necessary in determining whether these claims are appropriately considered on the merits.
This was not always the rule. Before the 1980s, this court was generally willing to review claims of ineffective assistance of counsel on direct appeal, 88 and recognized that such claims could be waived by the failure to raise them on direct appeal. 89 As early as 1975, however, we had begun to recognize that such claims, if without support by the record, were not appropriate for consideration on direct review. 90 In 1981, we decided Gibbons v. State, 91 where we declined to consider a claim of ineffective assistance of counsel on direct appeal because it was unclear whether counsel in that case had any basis for his actions which, from the record, were seemingly ineffective. We declared that “the more appropriate vehicle for presenting a claim of ineffective assistance of counsel is through post-conviction relief.’ ’ 92
In step with our decisions limiting the availability of review on direct appeal of most claims of ineffective assistance of counsel, we also held that such claims, if properly brought for the first time in a post-conviction petition, would not be subject to the post-conviction procedural bar for waiver. 93 But this left open the question of whether such claims were waived if they would have been appropriate for resolution on direct appeal without an evi-dentiary hearing. Ultimately, we adоpted a bright-line rule in Daniels v. State 94 and held that, “[b]ecause of the usual need for an evidentiary hearing to resolve a claim of ineffective counsel, the failure to raise the claim on direct appeal does not constitute a waiver of the claim for purposes of post-conviction proceedings.”
Following these determinations, we have generally declined to address claims of ineffective assistance of counsel on direct appeal unless there has already been an evidentiary hearing
95
or where an evidentiary hearing would be unnecessary.
96
In reviewing our prior decisions, we are mindful that we have not always acknowledged the exceptions to the rule barring review of such claims on direct appeal. For example, we have stated, without qualification, that “this
We also view as problematic and disapprove of Pertgen’s, other implication that special discretion attaches to procedural bars applied in capital habeas cases. The Ninth Circuit court in Petrocelli also relied on Jones and Flanagan as support for the conclusion that this court relaxes its procedural bars in capital habeas review. Our decisions in the latter two cases resolved direct appeals from judgments of conviction. On direct appеal of any judgment of conviction, this court has discretion to review instances of plain error despite the failure to preserve an issue at trial or the failure to raise the issue on appeal. 99 We have acknowledged the special import attached to this discretion where the death penalty has been imposed. 100 However, this plain error rule is a rule for review on direct appeal and does not create a procedural bar exception in any habeas proceeding, capital or not.
As noted by the Ninth Circuit court in Petrocelli,
101
in
Paine,
a direct appeal from a death sentence, we elected to address issues that we had previously determined in a prior appeal wherein we remanded the case for a new penalty hearing.
102
We briefly discussed these issues in
Paine,
stating that we did so “without attenuating the force and applicability of the law of the case.”
103
Our decision was proper, as the law of the case doctrine states that “ ‘[t]he law of a first appeal is the law of the case on all subsequent appeals in which the facts are substantially the same.’ ”
104
Paine argued that new evidence was adduced at his second penalty hearing.
105
Thus, it was appropriate for this court in applying the
law of the case doсtrine to address whether the facts were substantially the same in both appeals. We also addressed Paine’s argument that in the previous appeal we erroneously interpreted the law with respect to an aggravating circumstance.
106
However, it cannot be seriously disputed that a court of last resort has limited discretion to revisit the wisdom of its legal conclusions when it determines that
The Ninth Circuit court’s reliance on Hill v. State 109 also warrants discussion. This was an appeal from an order dismissing a “second” post-conviction petition in a death penalty case, wherein we reached the merits of claims of ineffective assistance of trial and appellate counsel without mention of the waiver and successive petition bars. This case involved unique circumstances that were not fully set forth in our opinion. Hill had filed a first petition for post-conviction relief in proper person, which was summarily dismissed by the district court. At the time the relevant statutes required appointment of counsel in cases of indigence. 110 Hill filed a late notice of appeal from that dismissal, and we determined that we lacked jurisdiction to entertain the appeal. 111 However, we noted that dismissal of the appeal with prejudice would be inappropriate, and we dismissed the appeal without prejudice to Hill’s right to refile the petition. Further, in the event that Hill elected to re-file his petition, we instructed the district court to appoint counsel for Hill and to conduct an evi-dentiary hearing. 112 Our opinion dismissing the appeal from the order denying the second petition does not mention the procedural bars; however, this is because the district court had recognized that pursuant to our order dismissing the earlier appeal, the second petition was a properly refiled or renewed first petition. Therefore, the procedural bars were not raised on appeal from the denial of the second petition, and we did not discuss them.
Finally, the Ninth Circuit court also relied on Warden v. Lischko 113 for the proposition that this court generally has discre tion to overlook procedural bars. There, in reviewing an appeal from an order granting a post-conviction petition under NRS Chapter 177, we stated:
Although the district court properly may have refused to entertain Lischko’s post-conviction petition because of his failure to urge the incompetency of trial counsel as a claim of error upon direct appeal, it chose instead to conduct an evi-dentiary hearing and rule upon the merits. That choice fell within its discretionary power. 114
Lischko’s petition was filed in July of 1972.
115
As we have explained, at that time the statutory procedural bar for waiver was far less stringent than the current statutory bar at
In sum, we conclude that we have been consistent in requiring good cause and actual prejudice to overcome the statutory procedural bars. We perceive no basis to ignore the procedural bars here. Thus,
To overcome the procedural bars of
This court may excuse the failure to show cause where the prejudice from a failure to consider the claim amounts to a “fundamental miscarriage of justice.” 121 We have recognized that this standard can be met where the petitioner makes a colorable showing he is actually innocent of the crime or is ineligible for the death penalty. 122 To avoid application of the procedural bar to claims attacking the validity of the conviction, a petitioner claiming actual innocence must show that it is more likely than not that no rеasonable juror would have convicted him absent a constitutional violation. 123 Where the petitioner has argued that the procedural default should be ignored because he is actually ineligible for the death penalty, he must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found him death eligible. 124
Pellegrini does not challenge the district court’s determination that his allegations of good cause relating to the effectiveness of counsel rested on the performance of counsel in the first post-conviction proceeding, which cannot excuse Pellegrini’s failure to comply with the procedural rules. In any event, there was no merit to this allegation of good cause. Pellegrini filed his first petition in December 1989. At that time, there was no constitutional or statutory right to post-conviction counsel.
125
“Where
there is no right to counsel there can be no deprivation of effective assistance of counsel and hence, ‘good cause’ cannot be shown based on an ineffectiveness of post-conviction counsel claim.”
126
To demonstrate error, Pellegrini focuses on his assertions of incompetence and insanity. He contends these assertions are sufficient to warrant an evidentiary hearing on the issues of whether he has demonstrated good cause for his failure to comply with the procedural rules and whether application of the procedural bars would cause a fundamental miscarriage of justice due to his actual innocence by reason of insanity. He further argues that the district court erred in applying the law of the case doctrine to bar consideration of these claims. We conclude that the law of the case doctrine was not applicable under the circumstances presented here. However, we further conclude that Pellegrini failed to show good cause or show a fundamental miscarriage of justice would result from application of the procedural bars, and that an evi-dentiary hearing was not warranted. Therefore, we affirm the district court’s decision to deny relief. 127
Under the law of the case doctrine, issues previously determined by this court on appeal may not be reargued as a basis for habeas relief. 128 In concluding that the law of the case precluded consideration of Pellegrini’s allegations of incompetence and insanity to prove good cause or a fundamental miscarriage of justice, the district court relied on the prior denial of claim 1(e) of Pellegrini’s first petition. That claim alleged that trial “counsel failed to investigate and present evidence to negate the culpability and mens rea of [Pellegrini] . . . and failed to file a Motion to Dismiss for the loss of such evidence by the State.” The claim was unsupported by any specific factual assertions. It did not refer to incompetence or insanity based on MPD. Furthermore, it appears that all other claims raised in the petition, to the extent that they alluded to Pellegrini’s mens rea, addressed only Pellegrini’s alleged intoxication at the time of the crime. The district court denied claim 1(e) without a hearing. On appeal from the denial of the first petition, we determined that this claim was among a group of claims of ineffective assistance of counsel which were properly denied as “either ‘naked’ claims for relief or . . . repelled by the record.” 129 We did not decide whether any evidence showed that Pellegrini suffered from MPD, was incompetent at any time in the proceedings, or had a viable defеnse of insanity. Nor did we determine whether allegations that Pellegrini suffered from MPD might constitute good cause to excuse the failure to comply with procedural rules or whether application of procedural bars to these claims would cause a fundamental miscarriage of justice. Thus, our determination on appeal from the denial of the first petition established no law of the case governing these matters. 130
Still, the only support for Pellegrini’s claims is the declaration in support of his petition given by Dr. Riley. The declaration states that Dr. Riley interviewed Pellegrini and conducted a battery of neuropsychological tests on him in April and May of 1997; obtained anecdotal evidence from Pellegrini, his friends and family members regarding behavioral abnormalities and traits Pellegrini displayed as a child and young adult; and obtained records from a 1985 neurological evaluation wherein Pellegrini was diagnosed with “migraine related to a stress situation.” The declaration further states that Dr. Riley obtained partial records from Pellegrini’s three pretrial mental health evaluations,
131
Dr. Kessler concluded that Mr. Pellegrini’s behavior at the time of the crime was “consistent with loss of behavioral control, including an explosive outburst of anger.” Dr. Kesslеr went on to state that “at the time in question, the defendant was not suffering from any type of psychiatric dis order which precluded his understanding of the nature and quality of his actions or their wrongfulness, or rendered him incapable of forming the requisite intent to carry out the offenses.”
Based on the above information, Dr. Riley “was able to draw some preliminary conclusions” and was of the opinion that at the time of the offense, “Pellegrini suffered from a severe psychiatric disorder, which ... is referred to as a dissociative disorder.” 132 Dr. Riley explained that the “essential feature of a dissociative disorder is a disruption in the usually integrated functions of consciousness, memory, identity or perception of the environment.” Dr. Riley opined that “an accurate diagnosis of dissociative disorder at the time of trial would have assisted the jury in determining the defendant’s level of criminal responsibility and could have been viewed as important mitigating evidence.” However, Dr. Riley cautioned, “[M]y sub-specialty of neuropsychology is far afield from the area of dissociative disorders. Because of my lack of experience in assessing disorders of this nature, definitive diagnosis should be made by an expert who is competent to conduct the specialized evaluation and interview techniques particular to this rare type of disorder.”
The evidence presented through this declaration falls far short of demonstrating good cause for Pellegrini’s delay in bringing his new claims for relief or for reraising previous claims. Although Pellegrini contends that he was incompetent and insane at the time of the crimes and throughout the prior proceedings, the declaration fails to set forth facts to demonstrate how Pellegrini’s mental state related to any impediment in asserting the grounds for relief now raised in the second petition. 133
Pellegrini further argues that because he suffered from MPD at the time of the crime, he was legally insane and therefore meets the actual innocence standard for purposes of determining whether a fundamental miscarriage of justice will result from the failure to consider his second petition on the merits. We note that reasonable jurists have disagreed on whether proof of legal insanity satisfies the actual innocence benchmark of the fundamental miscarriage of justice exception.
134
Furthermore, other courts have
recognized that whether proof of MPD may satisfy the definition of legal insanity is one involving considerable controversy.
135
We need not determine either-issue here. Even assuming Pellegrini suffered from MPD at the time of the crime, he has set forth no facts to show that he was legally insane due to this condition,
i.e.,
that he labored under a delusion so great at the time of his crimes that he was robbed of the ability to understand what he was doing or deprived of the ability to appreciate his actions
Accordingly, we conclude that Pellegrini failed to allege a sufficient basis to show good cause to excuse the procedural bars or to conclude that a fundamental miscarriage of justice would occur from the failure to consider his claims for relief on the merits. The district court did not err in declining to conduct an eviden-tiary hearing on these issues.
CONCLUSION
We conclude that Pellegrini is not entitled to relief in this appeal, 137 and we affirm the district court’s order denying his untimely and successive petition for a writ of habeas corpus.
Notes
Pellegrini v. State,
Id.
at 626-27, 629,
Id.
at 632,
Pellegrini v. State, Docket No. 22874 (Order Dismissing Appeal at 2-3, May 28, 1993).
Although the State raised laches under
6Pursuant to
See
See
1991 Nev. Stat., ch. 44, §§ 5, 32-33, at 75-76, 92.
For example, in
Bennett
v.
State,
See 1967 Nev. Stat., ch. 523, §§ 429-30, at 1469.
See 1967 Nev. Stat., ch. 523, §§ 317-24, at 1447-49.
See Legislative Commission of thе Legislative Counsel Bureau State of Nevada, 54th Sess., Revision of Nevada’s Substantive Criminal Law and Procedure in Criminal Cases, Report of the Subcommittee for Revision of the Criminal Law to the Legislative Commission, at 3 (November 18, 1966).
Id.
See 1967 Nev. Stat., ch. 523, §§ 317, 429, at 1447, 1469.
See 1967 Nev. Stat., ch. 523, §§ 318, 322, at 1447-48, 1449.
Id.
at 445-46,
Id.
at 444-46,
1969 Nev. Stat., ch. 87, §§1,3, at 106-07.
Id. § 3, at 107.
1967 Nev. Stat., ch. 523, § 323, at 1449.
1973 Nev. Stat., ch. 349, § 7, at 438-39.
Id. § 1, at 436.
Id. This limitation was ultimately made unnecessary by subsequent amendments to NRS Chapter 34 and was ultimately deleted in 1987. See 1987 Nev. Stat., ch. 539, § 39, at 1229.
See 1973 Nev. Stat., ch. 349, §§ 1, 8, at 436, 439.
See
1985 Nev. Stat., ch. 435, § 9, at 1231-32. Prior to this amendment, this court had already recognized similar restrictions on the ability to file delayed habeas petitions.
See Groesbeck v. Warden,
See 1985 Nev. Stat., ch. 435, § 10, at 1232.
1987 Nev. Stat., ch. 539, § 3, at 1209. This amendment, which was codified at
Passanisi
v.
Director, Dep’t Prisons,
1987 Nev. Stat., ch. 539, § 45, at 1231-32.
1989 Nev. Stat., ch. 204, § 5, at 457.
1989 Nev. Stat., at 2269-70.
See Minutes of Senate Comm, on Judiciary, 65th Leg., at 6-10 (Nev., March 30, 1989); see also Minutes of the Senate Comm, on Judiciary, 66th Leg., at 4-7 (Nev., January 29, 1991).
ADKT 121 (Order Appointing Study Committee, June 23, 1989).
See 1991 Nev. Stat., ch. 44, § 5, at 75.
1991 Nev. Stat., at 2494.
1991 Nev. Stat., ch. 44, § 33, at 92.
Id. § 32, at 92.
Speer
v.
State,
Ex Parte Smith,
Camino Et Al.
v.
Lewis,
Speer,
Brown
v.
Angelone,
Cf. id. at 375 (adopting similar construction of one-year filing limitation for habeas petitions under the federal Antiterrorism and Effective Death Penalty Act).
iSee Dickerson,
See Lozada
v.
State,
See
See Deutscher v. Warden,
1992 General Election Sample Ballot, Arguments for Passage of Ballot Question No. 2, at 15 (emphasis added).
Minutes of the Senate Comm, on Judiciary, 66th Leg., at 3 (Nev., March 20, 1991) (testimony of Assemblywoman Dawn Gibbons).
Id. (testimony of Chief Deputy David Sarnowski).
Minutes of the Assembly Comm, on Judiciary, 66th Leg., at 5 (Nev., February 6, 1991) (testimony of Staff Counsel John Hawley).
Minutes of Senate Comm, on Judiciary, 66th Leg., at 3 (Nev., March 20, 1991) (testimony of John Hawley).
Id.
United Brotherhood v. Dahnke,
Merrill
v.
DeMott,
See Foley
v.
Kennedy,
See Mello v. Woodhouse,
110 Nev 366, 373,
Lonchar v. Thomas,
See
See Passanisi,
See Hall v. State,
The sole claim that was not and could not have been raised in earlier proceedings is the claim numbered 18 — a claim that post-conviction counsel was ineffective for failing to raise in the first petition claims numbered 1-3, 6-8, 11-17 and 19-22. Nevertheless, this claim, like Pellegrini’s other claims, is time barred.
See, e.g., McKenna v. McDaniel,
Moran,
See Williams v. Georgia,
See Valerio,
See Valerio,
112 Nev at 389-90,
See Loveland v. Hatcher,
See Bargas v. Burns,
Id. at 1488-89.
Petrocelli,
Pertgen,
See, e.g., Donovan v. State,
See Lischko,
See Brackenbrough v. State,
Id.
at 523,
Bolden v. State, 99
Nev. 181, 183,
See, e.g., Feazell v. State,
See, e.g., Mazzan v. State,
Corbin
v.
State,
See
See
See, e.g., Geaiy,
See Petrocelli,
Paine,
Id.
at 615,
Hall,
Paine,
Id.
See Arizona v. California,
See Adams,
114 Nev 169,
See 1987 Nev Stat., ch. 539, § 42, at 1230-31.
Hill v. State, Docket No. 18253 (Order Dismissing Appeal, June 29, 1987).
Id.
90 Nev 221,
Id.
at 222-23,
See id.
at 225,
See
See
Harris v. Warden,
Id.
at 959-60 n.4,
Hogan
v.
Warden,
Mazzan
v.
Warden,
See Mazzan,
Schlup
v.
Delo,
Sawyer v. Whitley,
See McKague
v.
Warden,
McKague,
See Franco
v.
State,
See McNelton v. State,
Pellegrini, Docket No. 22874 (Order Dismissing Appeal at 2-3, May 28, 1993).
Cf. Lay
v.
State,
Dr. Riley’s reference is the only indication in the record of the content of any pretrial evaluation. Despite the relevant nature of these evaluations, neither Pellegrini nor the State has provided this court with any documentation related to them.
Though Dr. Riley does not use the phrase “multiple personality disorder,” we assume for the limited purpose of this discussion that Dr. Riley’s opinion was that Pellegrini suffered from MPD, which has been recognized as a dissociative disorder.
See Medlock
v.
State,
Cf. Ford v. Warden,
Compare Britz v. Cowan,
See, e.g., Medlock,
See Finger v. State,
We have considered Pellegrini’s claims related to the adequacy of the district court’s findings of fact and conclusions of law and his claims related to whether he was denied any rights by the procedure followed in the district court. We conclude that these claims lack merit and do not warrant further discussion.