Opposition Brief — Robert Lee McConnell, Petitioner v. William Gittere, Warden, et al.

No. 18-9349

____________________

IN THE SUPREME COURT OF THE UNITED STATES

June 19, 2019

____________________

ROBERT LEE MCCONNELL, Petitioner,

v.

WILLIAM GITTERE, Warden, Respondent.

____________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEVADA

____________________

RESPONDENT’S BRIEF IN OPPOSITION

_______________________________

CAPITAL CASE

DAVID ANTHONY

Assistant Federal Public Defender

Nevada Bar #007978

411 East Bonneville Ave., Suite 250

Las Vegas, Nevada 89101

(702) 388-6577

JENNIFER P. NOBLE

Chief Deputy District Attorney

Nevada Bar #9446

Washoe County District Attorney

One South Sierra Street

Reno, Nevada 89501

(775) 337-5755

Counsel for Appellant

Counsel for Respondent

QUESTION PRESENTED

CAPITAL CASE

In Nevada, death eligibility attaches once the prosecution proves the

elements of first-degree murder and the existence of at least one statutory

aggravating circumstance. Lisle v. State, 131 Nev. 356, 365-366, 351 P.3d 725, 732

(2015); Castillo v. State, 135 Nev. Adv. Op. 16, __P.3d __ (2019). Death eligibility

does not depend on a jury finding beyond a reasonable doubt that mitigating

circumstances do not outweigh aggravating circumstances, and no such

requirement exists in Nevada. Id.

In Nevada, a habeas petitioner must file a post-conviction petition for a writ

of habeas corpus within one year after entry of the judgment of conviction, or one

year after the Supreme Court issues its remittitur, if an appeal is taken.

NRS 34.726(1). An untimely or successive petition is procedurally barred and must

be dismissed absent a demonstration of good cause for the delay and undue

prejudice. Id.; NRS 34.810(1)(b)(2); State v. Haberstroh, 119 Nev. 173, 180, 69 P.3d

676, 681 (2003). When a claim was not previously legally available to a petitioner,

it may constitute good cause to excuse the procedural bar. Rippo v. State, 134 Nev.

Adv. Op. 53, 423 P.3d 1084, 1095 (2018). McConnell filed his second petition for

writ of habeas corpus more than five years after remittitur issued from his direct

appeal. App., p.2.

Did the Nevada Supreme Court err in finding that the decision in Hurst v.

Florida, 577 U.S. __, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016) did not establish new

i

law applicable to Nevada’s capital sentencing scheme, and therefore, did not

support good cause to excuse statutory procedural bars applicable to McConnell’s

successive, untimely, and abusive petition for writ of habeas corpus?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

STATEMENT OF THE CASE....................................................................................... 1

A. Facts of the Case ............................................................................................ 2

REASONS FOR DENYING THE PETITION .............................................................. 4

A. McConnell’s Question Presented Is Predicated Upon A

Misapprehension Of Nevada’s Capital Sentencing Scheme......................... 4

B. The Nevada Supreme Court’s Decision Is Based Upon State

Law, And The Decision In Hurst Did Not Affect Application

Of State Law.................................................................................................. 7

1. Hurst Did Not Create New Law Applicable To

McConnell’s Case...................................................................................... 7

2. Because Hurst Did Not Create A New, Previously

Unavailable Legal Claim, Application of the Procedural

Bar Was Proper ........................................................................................ 9

CONCLUSION............................................................................................................. 11

iii

TABLE OF AUTHORITIES

Page Number:

Cases

Apprendi v. New Jersey,

530 U.S. 466, 494, 120 S. Ct 2348, 147 L. Ed. 435 (2000) ..................................... 8, 9

Buchanan v. Angelone,

522 U.S. 269, 275, 118 S. Ct. 757, 139 L.Ed.2d 702 (1998) ....................................... 5

Castillo v. State,

135 Nev. Adv. Op. 16, __P.3d __ (2019) .................................................................. i, 5

Hurst v. Florida,

577 U.S. __, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016) ............................... i, 2, 7-9, 11

Jeremias v. State,

134 Nev. Adv. Op. 8, 412 P.3d 43, 53 (2018).......................................................... 2, 5

Johnson v. State,

118 Nev. 787, 802, 59 P.3d 450, 460 (2002) ............................................................... 5

Kansas v. Carr,

__ U.S. __ , 136 S. Ct. 633, 642, 193 L. Ed. 535 (2016).............................................. 6

Lisle v. State,

131 Nev. 356, 365-366, 351 P.3d 725, 732 (2015) ................................................ i, 4-6

McConnell v. State,

120 Nev. 1043, 102 P.3d 606 (2004) ................................................................... 1, 2, 4

McConnell v. State,

125 Nev. 243, 212 P.3d 307 (2009) ................................................................... 1, 4, 11

Nunnery v. State,

127 Nev. 739, 263 P.3d 235 (2011) ............................................................................. 5

Ring v. Arizona,

536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ...................................... 5, 8, 9

Rippo v. State,

134 Nev. Adv. Op. 53, 423 P.3d 1084, 1095 (2018) ..................................................... i

iv

TABLE OF AUTHORITIES (Continued)

Sawyer v. Whitley,

505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed. 269 (1992) .................................................. 6

State v. Haberstroh,

119 Nev. 173, 180, 69 P.3d 676, 681 (2003) ................................................................ i

Statutes

NRS 175.554(3) ............................................................................................................ 10

NRS 200.030(4)(a) ........................................................................................................ 10

NRS 34.726 (1) ............................................................................................................... 9

NRS 34.810 .................................................................................................................. 10

NRS 34.810(1)(b)(2) ........................................................................................................ i

v

No. 18-9349

____________________

IN THE SUPREME COURT OF THE UNITED STATES

June 19, 2019

____________________

ROBERT LEE MCCONNELL, Petitioner,

v.

WILLIAM GITTERE, Warden, Respondent.

____________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEVADA

____________________

RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Prior to the latest petition for writ of habeas corpus, McConnell’s case has

been the subject of extensive appellate and post-conviction litigation. His direct

appeal was denied by the Nevada Supreme Court in 2004. McConnell v. State, 120

Nev. 1043, 102 P.3d 606 (2004), rehearing denied at 121 Nev. 24, 107 P.3d 1287.

Next, his first post-conviction petition for writ of habeas corpus was denied.

McConnell v. State, 125 Nev. 243, 212 P.3d 307 (2009). Then, five years after his

direct appeal became final, and just shy of one year following the remittitur from

his first post-conviction habeas appeal, current counsel filed a second petition for

writ of habeas corpus.

///

///

1

The Nevada Supreme Court rejected McConnell’s claim that this Court’s

decision in Hurst v. Florida, 577 U.S. __, 136 S. Ct. 616 (2016) established good

cause to excuse procedural bars preventing McConnell from re-raising his untimely,

successive, and abusive claim that the jury should have been required to find that

the aggravating facts outweighed any mitigating factors beyond a reasonable doubt:

Appellant argues that he has good cause to relitigate a jury

instruction issue he previously raided, relying on the Supreme Court’s

decision in Hurst v. Florida, 577 U.S. __, 136 S. Ct. 616 (2016). We recently

rejected appellant’s interpretation of Hurst. See Jeremias v. State, 134 Nev.

Adv. Op. 8, 412 P.3d 43, 53 (2018).

Petitioner’s Appendix, p.9, fn. 5.

McConnell’s current petition for writ of certiorari seeks relief from the

Nevada Supreme Court’s order affirming the district court’s denial of his second,

untimely, abusive and successive post-conviction habeas corpus petition.

A. Facts of the Case

McConnell was once romantically involved with April Robinson. Eventually,

she broke it off because she was afraid of him. McConnell v. State, 120 Nev. 1043,

1050, 102 P.3d 606, 612 (2004). She subsequently became close to Brian Pierce and

they became engaged. Id. After the dissolution of his relationship with Robinson,

McConnell told another girlfriend that he was going to murder Pierce. Id.

McConnell began staking out their home, keeping notes of the comings and goings,

and plotting his crimes. Id. at 1051, 612.

On August 7, 2002, McConnell broke into the home shared by Robinson and

Pierce. McConnell began searching it while waiting for Pierce to arrive home. He

laid in wait for Pierce, and confronted Pierce inside the home. McConnell took the

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victim's wallet at gunpoint, and then shot Pierce at least nine times at close range.

Id., 1051, 613; 1054, 615.

After shooting Pierce, McConnell checked for a pulse and looked in the

victim's eyes because he wanted to “see him die.” Id., 1054, 615. McConnell then

dragged Pierce’s body into a spare bedroom where he used a knife to dig some of the

bullets out of the body, because he was curious to see what a Black Talon bullet

would look like after being inside a body. Id., 1054, 614. He also took a large knife

and plunged it into the torso of Pierce’s corpse, and left a videotape of the movie

“Fear” on the body, as a message to April Robinson. Id., 1051, 613.

When April Robinson got home, she was confronted by McConnell.

McConnell duct taped Robinson’s eyes, legs, and arms. He cut her clothes and

underwear off with a knife, and sexually assaulted her repeatedly. Id., 1051, 612.

McConnell then forced Robinson into her own vehicle; he lied to Robinson, telling

her that Pierce was locked up somewhere in a Uhaul, and was being watched by

other people. Id. Robinson was able to escape from McConnell at a California gas

station. Id.

McConnell was eventually arrested in San Francisco. While awaiting trial,

McConnell called the mother of Brian Pierce to inform her that her son had died

a coward. Id., 1052, 613. He also sent Robinson mail from jail, taunting her and

suggesting she should kill herself. Id., 1052, 613.

After McConnell pleaded guilty, the jury was instructed that the State

alleged the existence of three aggravating factors: 1) that the murder was

committed during the commission of a robbery; 2) that the murder was committed

3

during the commission of a burglary; 3) that the murder involved mutilation of the

victim. Appendix, 50. It found the existence of all three aggravators. McConnell v.

State, 120 Nev. 1043, 1054,102 P.3d 606, 616 (2004). The Nevada Supreme Court

affirmed the death sentence. Id. at 1071, 626.

REASONS FOR DENYING THE PETITION

A. McConnell’s Question Presented Is Predicated Upon A

Misapprehension Of Nevada’s Capital Sentencing Scheme.

McConnell posits his question presented for review as follows:

Whether the Constitution requires—in a state in which a jury is required to

find that mitigating circumstances do not outweigh the aggravating

circumstances before considering the death penalty—that this finding be made

by a jury beyond a reasonable doubt.

Petition for Writ of Certiorari, p. i. (italics added)

Within the question presented lies a fundamental problem: McConnell

assumes that in Nevada, death eligibility attaches only after a jury finds that the

aggravating factors outweigh the mitigating factors. But Nevada’s capital scheme

does not require any finding that the aggravating factors outweigh the mitigating

factors, so it naturally follows that there can be no requirement that this

unrequired finding be subject to the quantum of proof for which McConnell.

At one time, Nevada Supreme Court decisions were inconsistent on this

subject, but this issue has long been resolved against McConnell. Compare

McConnell v. State, 125 Nev. 243, 254, 212 P.3d 307, 314–15 (2009)125 Nev. 243,

254, 212 P.3d 307, 314–15 (2009) (“[N]othing in the plain language of [the relevant

statutory] provisions requires a jury to find, or the State to prove, beyond a

reasonable doubt that no mitigating circumstances outweighed the aggravating

4

circumstances in order to impose the death penalty;” Johnson v. State, 118 Nev.

787, 802, 59 P.3d 450, 460 (2002) (noting that the weighing requirement is part of a

factual determination that must be found by a jury beyond a reasonable doubt in

accordance with Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556

(2002)), overruled by Nunnery v. State, 127 Nev. 739, 263 P.3d 235 (2011). The

Nevada Supreme Court has made clear that, “a defendant is death-eligible once the

State proves the elements of first-degree murder and the existence of at least one

statutory aggravating circumstance.” Castillo v. Nevada, __ P.3d__, 2, 135 Nev.

Adv. Op. 16 (2019)(citing Lisle v. State, 131 Nev. 356, 365-66, 351 P.3d 725,

732(2015); Jeremias v. State, 412 P.3d 43, 134 Nev. __ (2018).

Nevada’s approach to death eligibility, and the absence of a weighing

requirement, finds sound support in United States Supreme Court jurisprudence.

In Lisle v. State, 131 Nev. Adv. Op. 39, 351 P.3d 725 (2015), the Nevada Supreme

Court relied on precedent from the United States Supreme Court to declare that

death eligibility rests on the jury’s finding of at least one aggravator and nothing

more. Lisle, 351 P.3d at 731-32 (“The Court has referred to the narrowing

component of the capital sentencing process as the “eligibility” phase and the

individualized-consideration component as the ‘selection’ phase.”) (citing Buchanan

v. Angelone, 522 U.S. 269, 275, 118 S. Ct. 757, 139 L.Ed.2d 702 (1998) (“In the

eligibility phase, the jury narrows the class of defendants eligible for the death

penalty, often through consideration of aggravating circumstances. In the selection

phase, the jury determines whether to impose a death sentence on an eligible

defendant.”) (citation omitted)).

5

The Lisle Court noted that in Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct.

2514, 120 L.Ed. 269 (1992), the United States Supreme Court, after discussing the

narrowing requirement and explaining that it was met under the Louisiana statute

by the elements of the capital offense and the finding of at least one statutory

aggravating factor, characterized that process as establishing “eligibility for the

death penalty.” Id. at 342.

The reasoning Sawyer, supra, was recently reaffirmed in Kansas v. Carr, __

U.S. __ , 136 S. Ct. 633, 642, 193 L. Ed. 535 (2016):

Approaching the question in the abstract, and without reference to our

capital-sentencing case law, we doubt whether it is even possible to apply a

standard of proof to the mitigating-factor determination (the so-called

“selection phase” of a capital-sentencing proceeding). It is possible to do so

for the aggravating-factor determination (the so-called “eligibility phase”),

because that is a purely factual determination. The facts justifying death set

forth in the Kansas statute either did or did not exist—and one can require

the finding that they did exist to be made beyond a reasonable doubt.

Whether mitigation exists, however, is largely a judgment call (or perhaps a

value call); what one juror might consider mitigating another might not. And

of course the ultimate question whether mitigating circumstances outweigh

aggravating circumstances is mostly a question of mercy—the quality of

which, as we know, is not strained. It would mean nothing, we think, to tell

the jury that the defendants must deserve mercy beyond a reasonable doubt;

or must more-likely-than-not deserve it. It would be possible, of course, to

instruct the jury that the facts establishing mitigating circumstances need

only be proved by a preponderance, leaving the judgment whether those facts

are indeed mitigating, and whether they outweigh the aggravators, to the

jury's discretion without a standard of proof. If we were to hold that the

Constitution requires the mitigating-factor determination to be divided into

its factual component and its judgmental component, and the former to be

accorded a burden-of-proof instruction, we doubt whether that would produce

anything but jury confusion. In the last analysis, jurors will accord mercy if

they deem it appropriate, and withhold mercy if they do not, which is what

our case law is designed to achieve.

Kansas v. Carr, __ U.S. __, 136 S. Ct. 633, 642, 193 L. Ed. 2d. 535 (2016).

///

6

B. The Nevada Supreme Court’s Decision Is Based Upon State Law,

And The Decision In Hurst Did Not Affect Application Of State

Law.

This Court should decline review because the state court did not decide an

important question of federal law in a way that conflicts with other state courts. At

best, the question presented, although framed as a question of constitutional law,

essentially asserts that the state court misapplied state law in finding that

McConnell was not entitled to relief. Rule 10. McConnell is urging this Court to

undertake an error-correcting function, and it should decline to do so.

1. Hurst Did Not Create New Law Applicable To McConnell’s Case.

Since the weighing of aggravators and mitigators is not, as McConnell

argues, a necessary pre-condition for death eligibility in Nevada, the weighing

determination is not an element of a capital offense. McConnell attempted to

convince the Nevada Supreme Court that this Court’s decision in Hurst v. Florida,

577 U.S. __, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016) entitles him to relief. The

Nevada Supreme Court rejected this claim, explicitly finding that Hurst did not

create a previously unavailable legal claim that would constitute good cause to

excuse state procedural bars. App., 9, fn. 5. This reasoning was well-supported,

because 1) the capital sentencing scheme in Florida differs critically from Nevada’s,

and 2) unlike Hurst, it was a jury, not a judge, who made the factual finding

regarding the existence of aggravators.

In Hurst, the Court found Florida’s capital sentencing scheme

unconstitutional because the maximum sentence a jury could impose was life in

prison; yet, a judge could impose a death sentence after he independently found the

7

existence of and weighed the aggravating and mitigating circumstances. Hurst at

622. A jury in Florida could not make specific factual findings about the existence

of mitigating or aggravating circumstances, it could not present a binding

sentence of death. Id. The Court in Hurst based its holding on Apprendi v. New

Jersey, 530 U.S. 466, 494, 120 S.Ct. 2348, 147 L.Ed. 435 (2000), and Ring v.

Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

In Apprendi, the Court held that any fact that “expose[s] the defendant

to a greater punishment than that authorized by the jury’s guilty verdict” is an

element that must be submitted to a jury. Apprendi, 530 U.S. at 494. In Ring, the

Court held that “Arizona’s capital sentencing scheme violated Apprendi’s rule

because the State allowed a judge to find the facts necessary to sentence a

defendant to death.” 536 U.S. at 591. Specifically, “a judge could sentence Ring to

death only after independently finding at least one aggravating circumstance.” Id.

at 592-93.

The Hurst Court found the Florida sentencing system unconstitutional

because “[l]ike Arizona at the time of Ring, Florida does not require the jury to

make the critical findings necessary to impose the death penalty. Rather, Florida

requires a judge to find these facts.” Id. at 622. In other words, “[a]s with Ring, a

judge increased Hurst's authorized punishment based on her own fact finding.” Id.

Here, on the other hand, a jury–not the trial judge, nor the Nevada Supreme

Court–found three statutory aggravating factors were present, and concluded the

death penalty was appropriate. Hurst, Apprendi, and Ring do not apply to these

types of moral or non-factual determinations. The basic legal principle behind those

8

decisions is the idea that any fact that “expose[s] the defendant to a greater

punishment than that authorized by the jury’s guilty verdict” is an element that

must be submitted to a jury. Apprendi, 530 U.S. at 494. Thus, non-factual or moral

determinations do not fall within the ambit of Hurst. The Hurst Court explained,

“The Sixth Amendment requires a jury, not a judge, to find each fact necessary to

impose a sentence of death.” Hurst, 136 S. Ct. at 619. Because the Hurst Court

applied Apprendi and Ring, which apply only to the necessary factual components

needed to impose death, Hurst, itself, rejects the idea that it applies to moral and

factual weighing of aggravator and mitigators.

2. Because Hurst Did Not Create A New, Previously Unavailable Legal

Claim, Application of the Procedural Bar Was Proper.

The Nevada Supreme Court concluded that McConnell’s most recent petition,

filed more than five years after the remittitur, was untimely, having been filed well

outside the statutory bar pursuant to NRS 34.726 (1). App, 2. That statute

provides, in relevant part:

34.726. Limitations on time to file; stay of sentence

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 appellate court of competent jurisdiction

pursuant to the rules fixed by the Supreme Court pursuant to Section 4 of

Article 6 of the Nevada Constitution 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.

9

The reviewing court further observed that because the petition raised claims

that were previously litigated and resolved on their merits, and new claims that

could have been raised in prior proceeding, it constituted an abuse the writ

pursuant to NRS 34.810. App. 2. That statute provides, in relevant part:

34.810. Additional reasons for dismissal of petition

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.

In his previous petition for writ of habeas corpus, McConnell argued, as he

did in his subsequent petition, and in the current petition for writ of certiorari, that

the jury should have been instructed that it must find the aggravating factors

outweighed the mitigating factors beyond a reasonable doubt. That argument was

rejected by the Nevada Supreme Court in 2009:

McConnell argues that the district court erred in rejecting his ineffectiveassistance claim based on appellate counsel's failure to argue that the district

court should have instructed the sentencing jury that the aggravating factors

had to outweigh the mitigating factors beyond a reasonable doubt before it

could impose death. We conclude that this ineffective-assistance claim lacks

merit because the underlying legal argument would not have had a

reasonable probability of success on appeal.

Nevada statutes do not impose the burden suggested by McConnell's claim.

Two specific provisions are relevant. First, NRS 200.030(4)(a), which outlines

the range of punishment for a first-degree murder conviction, provides that

death can be imposed “only if ... any mitigating circumstance or

circumstances which are found do not outweigh the aggravating circumstance

or circumstances.” Second, NRS 175.554(3), which addresses jury

instructions, determinations, findings, and the verdict, states that “[t]he jury

may impose a sentence of death only if it finds at least one aggravating

circumstance and further finds that there are no mitigating circumstances

sufficient to outweigh the aggravating circumstance or circumstances found.”

Nothing in the plain language of these provisions requires a jury to find, or

the State to prove, beyond a reasonable doubt that no mitigating

10