138 P.3d 453 | Nev. | 2006
Lead Opinion
By the Court,
Respondent Kitrich Powell filed a petition for a writ of habeas corpus challenging his first-degree murder conviction and death sentence. The district court denied the petition for the most part, a decision which we affirmed in an earlier appeal. However, the district court also eventually determined that Powell’s trial counsel were ineffective in failing to call Powell’s brothers to testify at the penalty phase of his trial. It therefore vacated his death sentence and ordered a new penalty hearing. We conclude that Powell was not prejudiced by his counsel’s deficient performance and reverse.
FACTS
In 1991, a jury convicted Powell of first-degree murder of his girlfriend’s four-year-old daughter, Melea Allen. Powell had subjected the child to repeated beatings which eventually resulted in a head injury causing her death. Following a penalty hearing, the jury imposed a sentence of death. This court affirmed Powell’s conviction, but the United States Supreme Court vacated this court’s judgment and remanded.
In February 1998, Powell timely filed in proper person a post-conviction petition for a writ of habeas corpus. Various attorneys filed a total of four supplemental pleadings on Powell’s behalf in December 1998, July 1999, November 2000, and October 2001. In July 2002, the district court denied Powell’s habeas claims relating to the guilt phase of his trial. But the court found that Powell’s counsel had been ineffective during the penalty phase by failing to call his father and two brothers to testify, and it ordered a new penalty hearing. The State appealed, and Powell cross-appealed. In August 2003, this court reversed the district court’s grant of a new penalty hearing and remanded for an evidentiary hearing on counsel’s failure to call Powell’s family members to testify. We also reversed the district court’s denial of Powell’s claim that his counsel were ineffective in failing to object to alleged prosecutorial misconduct during the penalty hearing and
On remand, the district court held evidentiary hearings in December 2003 and February 2005. Powell’s trial attorneys James Mayberry and David Schieck testified, as did defense investigator Lome Lomprey. Before the trial, Mayberry spoke to Powell’s father by phone, and Lomprey met the father at his home in Pennsylvania; both asked him to testify for Powell, but he refused. None of the three recalled contacting either of Powell’s brothers. Schieck testified that someone from the team should have done so.
Powell’s brothers, Peter and Paul Powell, also testified. Peter was Powell’s younger brother and had retired from a career in the Navy. Paul was Powell’s older brother and an airline pilot. At the time of the trial, Peter was stationed in Mississippi, and Paul lived in Chicago. Both testified that they were willing and able to testify for their brother at his trial but were never contacted by any one from the defense team. They would have told jurors that they loved their brother and his life was worth sparing, and they would have urged the jurors not to sentence him to death. Paul testified that he flew to Las Vegas after Powell was charged, met with his brother at the jail, and called and went to Mayberry’s office, but Mayberry was not in and never contacted him.
The district court determined that trial counsel had been ineffective in failing to call Powell’s brothers to testify in mitigation; it vacated his death sentence and ordered a new penalty hearing. The court stated in its order that “had the jury heard the testimony of Mr. Powell’s brothers as they testified at the evidentiary hearing, there is a probability that a different outcome of the penalty phase would have occurred.’ ’
DISCUSSION
Timeliness
The State contends first that Powell’s claim that his counsel were ineffective in failing to find his brothers and call them to testify is procedurally barred. Powell’s claim was raised nearly three years after Powell’s initial petition, and the State contends that it did not relate back to that petition and therefore was untimely. However, the State advances these contentions for the first time in this appeal, even though it concedes that Powell raised the claim in a supplemental pleading filed in the district court in November 2000. The State also complains that the nature of Powell’s claim evolved during the proceedings below; nonetheless, the State never challenged the claim as untimely below.
To overcome the statutory procedural bars, a petitioner must demonstrate good cause for delay in filing his petition or for bringing new claims or repeating claims in a successive petition, and he must demonstrate undue or actual prejudice.
As an initial point, NRS 34.810 does not apply here, although the State invokes it. NRS 34.810(l)(b) requires a court to dismiss a habeas petition that presents claims that could have been presented at trial, on direct appeal, or in any other proceeding unless the court finds both cause for failing to present the claims earlier and actual prejudice to the petitioner. But it is proper, as Powell has done, to claim ineffective assistance of trial counsel for the first time in a first post-conviction habeas petition, if it is timely, because such claims are generally not appropriate for review on direct appeal.
As for timeliness, the State does not dispute that Powell’s habeas petition filed on February 4, 1998, was timely. That petition alleged in part that Powell’s counsel “failed to conduct an adequate investigation to discover and present all available mitigating evidence.” In the supplemental pleading filed on November 17, 2000,
On its face NRS 34.726, which sets forth the relevant limitations period, applies to habeas petitions, not supplemental pleadings. NRS 34.726(1) requires “a petition that challenges the validity of a judgment or sentence” to be filed within one year after entry of the judgment of conviction or after this court issues its remittitur. (Emphasis added.) Likewise, the provisions regarding laches facially apply to petitions. NRS 34.800(1) provides that “[a] petition may be dismissed if delay in the filing of the petition” prejudices the State in responding to the petition, unless the petitioner could not reasonably have known the grounds for the petition before the prejudice occurred, or in conducting a retrial, unless a fundamental miscarriage of justice occurred in the trial or sentencing. (Emphasis added.) And NRS 34.800(2) provides for a rebuttable presumption of prejudice to the State if more than five years passes between a judgment of conviction, a sentence, or a decision on direct appeal ‘ ‘and the filing of a petition challenging the validity of a judgment of conviction.” (Emphasis added.)
The State nevertheless argues that the supplementation of Powell’s original petition was untimely and therefore procedurally barred. It cites Mayle v. Felix,
The State urges the same result here pursuant to NRCP 15(c), which largely tracks the language of the federal rule. This court has articulated the standard set forth in NRCP 15(c) as follows: “If the original pleadings give fair notice of the fact situation from which the new claim for liability arises, the amendment should relate back for limitations purposes.”
In this case, we do not turn to the Nevada Rules of Civil Procedure because two subsections of NRS 34.750 address “supplemental pleadings” and “further pleadings” in habeas proceedings:
3. After appointment by the court, counsel for the petitioner may file and serve supplemental pleadings, exhibits, transcripts and documents [within certain time limits].
5. No further pleadings may be filed except as ordered by the court.
We have stated that the latter subsection ‘ ‘vest[s] the district court with broad authority to order supplemental pleadings in post-conviction habeas cases.”
We conclude therefore that the State has not shown that the district court erred in allowing Powell to supplement his petition.
The State also alleges that the passage of time has prejudiced it and cites NRS 34.800, which provides courts the discretion to dismiss a petition if delay in its filing prejudices the State. We conclude that such relief is not appropriate here. The State points out that the original penalty hearing was almost 15 years ago, that it will be difficult to gather witnesses that came from California, Oklahoma, Texas, and Pennsylvania, and that the witnesses’ memories will have faded. But the lengthy time that has passed in this case is not attributable to delay by Powell. Powell’s judgment of conviction was entered in June 1991. On direct appeal, this court erroneously decided that, a new rule of criminal procedure announced by the Supreme Court soon after Powell’s trial did not apply to his case.
The district court did not abuse its discretion in permitting Powell to supplement his petition with the claim in question, and the claim is not procedurally barred.
Ineffective assistance of counsel
Next, the State maintains that the evidence does not support the district court’s determination that trial counsel were ineffective. To establish ineffective assistance of counsel, a claimant must show that an attorney’s representation fell below an objective standard of reasonableness and that the attorney’s deficient performance prejudiced the defense.
“A claim of ineffective assistance of counsel presents a mixed question of law and fact and is therefore subject to independent review,”
The State contends that the performance of Powell’s trial counsel was neither deficient nor prejudicial. In arguing the first point, the State emphasizes the time and effort that attorney Mayberry put into preparing for the trial and investigator Lomprey’s efforts in
However, while counsel acted deficiently in failing to call Powell’s brothers to testify, we conclude that the failure was not prejudicial. There is no reasonable probability of a different penalty-phase result even if the brothers had testified. The district court found that the brothers made “impassioned pleas” on behalf of their brother. We defer to this purely factual finding, but the district court’s conclusion that a different result was reasonably probable is not supported by analysis of the substance of the brothers’ testimony in light of the record as a whole.
As stated above, Peter was Powell’s younger brother and had retired from a career in the Navy. Paul was Powell’s older brother and an airline pilot. They testified at the evidentiary hearing that had they been called to testify at trial, they would have told jurors that they loved their brother and that his life was worth sparing.
Peter’s testimony revealed that although he had grown up with Powell, he had little knowledge about his older brother after that. He was not aware of his brother’s murder trial when it occurred. He testified that he would have told the jury “the type of person [Powell] was growing up, and the type of person he is. He’s an outstanding leader. He’s a role model towards the society while I was growing up with my brother.” When asked on cross-examination if he believed his brother was guilty, Peter replied, ‘ Absolutely not. He would never do that.” He testified that his memory of Powell’s discharge from the Army was “a little vague.” He learned from his oldest brother that Powell had been court-martialed but did not know the amount of time he spent in prison. Peter also did not know that Powell pleaded guilty to three counts of burglary and spent a year in prison in Pennsylvania. Nor did he know about Powell’s later burglary and robbery convictions in Oklahoma.
Powell’s older brother Paul testified that he flew to Las Vegas after Powell was arrested in this case and met with his brother at the jail. It appears that the victim was then still alive and that Paul did not know until some time afterwards that his brother was eventually tried for and convicted of murder. When asked in what way his brother had redeeming value, Paul testified: ‘ ‘His concern for human life and mankind. And he was always in contact with the family, so he was always a, you know, family-orientated person. And he always had, you know, in relationship with somebody. He was not a loner by any means.” He also questioned his brother’s guilt, stating “that the information that was presented [at trial] probably could have been misleading and that Kitrich was a very, very honorable person and did not cause any person diligent harm by premeditation.’ ’ When asked on cross-examination why he felt that Powell had a concern for human life, Paul recalled a puppy that they had as children and how Powell cared for it when it broke its leg. He also recalled Powell’s concern after hitting Paul with a stick while playing. Paul’s knowledge about Powell after childhood was limited. He testified that Powell was discharged from the Army “for administrative purposes.” When asked if he was aware that Powell had been court-martialed, he said he did not know though he visited Powell at the prison in Leavenworth. Paul also was not aware that his brother pleaded guilty to three counts of burglary in Pennsylvania. He did know that Powell was convicted in Oklahoma of burglary and robbery because Powell lived with him at the time.
Again, as with Peter, the effectiveness of Paul’s testimony was blunted by lack of knowledge about his brother’s adult life and criminal history and by disregard of his brother’s guilt in this case. Further, his examples of his brother’s concern for human life had negligible weight in contrast to Powell’s actual violent, murderous behavior.
The victim here was a four-year-old girl whom Powell repeatedly battered and eventually killed. The helplessness and blamelessness of the victim made this a particularly outrageous crime. Further, Powell had a long history of violent and criminal misconduct, including burglaries, robbery, and assault with intent to
The district court concluded that Powell was prejudiced because his counsel did not call Powell’s brothers to testify and also because counsel did not object to improper comment by the prosecutor on Powell’s failure to call witnesses. We conclude that the improper comment had negligible prejudicial impact and that the brothers’ testimony, although passionate and sincere, did very little to counter the case in aggravation against Powell. Based on our independent review of this matter, we conclude that there was no reasonable probability that the jury would have reached a different result even absent counsel’s deficient performance.
CONCLUSION
We conclude that Powell was not prejudiced by his counsel’s deficient performance. We therefore reverse the district court’s order vacating Powell’s death sentence and granting a new penalty hearing. We remand this matter, directing the district court to vacate its order and deny respondent’s petition.
Powell has filed a motion for leave to file a supplemental brief. Cause appearing, we grant the motion, and in resolving this appeal we have considered counsel’s supplemental argument submitted provisionally with the motion.
Powell v. State (Powell I), 108 Nev. 700, 838 P.2d 921 (1992), vacated by Powell v. Nevada (Powell II), 511 U.S. 79 (1994).
Powell v. State (Powell III), 113 Nev. 41, 47, 930 P.2d 1123, 1126 (1997).
State v. Powell, Docket No. 39878 (Order Affirming in Part, Reversing in Part and Remanding, August 22, 2003).
State v. Taylor, 114 Nev 1071, 1077, 968 P.2d 315, 320 (1998).
NRS 34.726(1); NRS 34.810(3).
Harris v. Warden, 114 Nev 956, 959, 964 P.2d 785, 787 (1998).
Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted).
United States v. Frady, 456 U.S. 152, 170 (1982); see also Hogan v. Warden, 109 Nev 952, 960, 860 P.2d 710, 716 (1993).
Evans v. State, 117 Nev 609, 622, 28 P.3d 498, 507 (2001).
545 U.S. 644, 650, 664 (2005).
See id. at 648.
Nelson v. City of Las Vegas, 99 Nev. 548, 556, 665 P.2d 1141, 1146 (1983).
NRS 34.780(1).
Mazzan v. State, 109 Nev. 1067, 1070, 863 P.2d 1035, 1036 (1993).
Miles v. State, 120 Nev. 383, 385, 91 P.3d 588, 589 (2004).
122 Nev. 301, 303-04, 130 P.3d 650, 651-52 (2006).
Powell I, 108 Nev. at 705 n.1, 838 P.2d at 924 n.1; Powell II, 511 U.S. 79.
Powell III, 113 Nev. 41, 930 P.2d 1123.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Id. at 694.
Id. at 689.
Id. at 691.
Kirksey v. State, 112 Nev. 980, 987, 923 P.2d 1102, 1107 (1996).
Lara v. State, 120 Nev. 177, 179, 87 P.3d 528, 530 (2004).
Means v. State, 120 Nev. 1001, 1012-13, 103 P.3d 25, 33 (2004).
Concurrence in Part
concurring in part and dissenting in part:
I concur with the majority’s analysis and decision in regard to the State’s challenge to the timeliness of respondent Kitrich Powell’s claim. I must dissent, however, to reversing the district court’s determination that Powell’s trial counsel were ineffective.
As the district court concluded and the majority accepts, counsel acted deficiently in failing to contact Powell’s two brothers and calling them to testify at his penalty hearing. But the majority disagrees with the district court that Powell was prejudiced as a result. I conclude that the district court’s decision deserves to be affirmed. The question is whether there is a reasonable probability that jurors would have returned a different sentence if Powell’s brothers had testified.
To summarize the relevant evidence, Powell battered and ultimately killed his girlfriend’s four-year-old daughter. As the majority observes, given the helplessness and blamelessness of the victim, the jury had good reason to be outraged by the crime itself. Powell also had a history of burglaries as well as convictions for
If this were the extent of the relevant evidence, I could perhaps agree with the majority in rejecting the district court’s determination that Powell was prejudiced by the failure to call his brothers as witnesses. But the majority neglects a crucial factor in this case: the prosecutor’s cross-examination of Powell’s trial investigator and its consequences. The key exchange was the following:
Prosecutor: Basically your job was to try to find people to come here and say good things about the defendant?
Witness: That would be about right.
Prosecutor: You talked to quite a few people [in Pennsylvania]?
Witness: Yes.
Prosecutor: And you talked to a lot of people in Oklahoma?
Witness: Yes.
Prosecutor: Did you find anybody that had anything good to say about the defendant?
Witness: No.
Prosecutor: I have nothing further.
Then during closing argument, the State returned to this testimony not once but twice, stressing to jurors that the investigator could not find one person to testify for Powell, not even his brother or sister. Moreover, this court on direct appeal, in concluding that Powell’s death sentence was not excessive, noted specifically: “Further, at the penalty hearing, only one witness appeared on Powell’s behalf. The defense investigator who contacted Powell’s family and friends indicated that he was unable to find one person who had ‘anything good to say’ about Powell.”
The district court had the opportunity to hear and observe the testimony of Powell’s two brothers and personally assess the impact their testimony would have had on the jury, something members of this court have not had the opportunity to do. The district court appropriately determined that there was a reasonable probability that pleas by Powell’s two brothers to spare his life would have led to a different result. I do not think we should disturb this decision reached after first-hand observation of the potential witnesses. For this reason, I dissent.
Powell v. State, 108 Nev. 700, 715-16, 838 P.2d 921, 931 (1992), vacated by Powell v. Nevada (Powell II), 511 U.S. 79 (1994).
See Gallego v. State, 117 Nev. 348, 365-66 & n.34, 23 P.3d 227, 239 & n.34 (2001).