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

No.18-9349

OCTOBER TERM, 2018

IN THE SUPREME COURT OF THE UNITED STATES

ROBERT LEE MCCONNELL, Petitioner,

V.

WILLIAM GITTERE, Warden, Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of the State Of Nevada

PETITIONER'S REPLY TO RESPONDENTS BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

CAPITAL CASE

RENE L. VALLADARES

Federal Public Defender of Nevada

DAVID ANTHONY

Counsel ofRecord

Assistant Federal Public Defender

411 E. Bonneville, Ste. 250

Las Vegas, Nevada 89101

(702) 388-6577

(702) 388-5819 (Fax)

David_Anthony@fd.org

Counsel for Petitioner

TABLE OF CONTENTS

REPLY TO BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI ...................................................................................................... 1

CONCLUSION ............................................................................................................... 4

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TABLE OF AUTHORITIES

Supreme Court Opinions

Page(s)

Mullaney v. Wilbur,

421 U.S. 684 (1975) ................................................................................................. 2

Ring v. Arizona,

536 U.S. 584 (2002) ............................................................................................. 1, 2

Rippo v. Baker,

137 S. Ct. 905 (2017) ............................................................................................... 3

St. Louis S.R. Co. v. Arkansas,

235 U.S. 350 (1914) ................................................................................................. 2

State Cases

Gallego v. State,

711 P.2d 856 (Nev. 1985) ...................................................................................... 1-2

Johnson v. State,

59 P.3d 450 (Nev. 2002) ........................................................................................... 1

Lisle v. State,

351 P.3d 725 (Nev. 2015) ......................................................................................... 1

Nunnery v. State,

263 P.3d 235 (Nev. 2011) ......................................................................................... 2

Rippo v. State,

423 P.3d 1084 (Nev. 2018) ....................................................................................... 3

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REPLY TO BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

In its brief in opposition, the State does not controvert Robert McConnell's

argument that this Court's review is urgently needed because there is a conflict

among the state and federal courts on an important question of federal law. To the

contrary, the State acknowledges the Nevada Supreme Court itself has reached

diametrically opposite conclusions on this very point of federal law. BIO at 5 (citing

Johnson v. State, 59 P.3d 450, 460 (Nev. 2002) for the proposition "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 []

(2002)"). This concession repels the State's arguments that this case involves a

question of state law or error correction.

The State apprehends the issue before this Court as whether a jury's

weighing of aggravating and mitigating circumstances is part of the "death

eligibility" determination under Nevada's capital sentencing scheme. BIO at i, 4, 7.

Rather, McConnell argues the weighing process is subject to the constitutional

protections identified in Apprendibecause Nevada law "precludes the jury from

imposing a death sentence if it determines that the mitigating circumstances are

sufficient to outweigh the aggravating circumstance or circumstances." Lisle v.

State, 351 P.3d 725, 732 (Nev. 2015). It is only after this finding is made that the

jury is permitted to consider other aspects of a defendant's character and record, the

impact on the victims, and any other circumstances relevant to the sentence.

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Gallego v. State, 711 P.2d 856, 863 (Nev. 1985) ("If the death penalty option

survives the balancing of aggravating and mitigating circumstances, Nevada law

permits consideration by the sentencing panel of other evidence relevant to the

sentence. NRS 175.552.").

If Apprendi and its progeny have taught us anything it is that the

nomenclature used by the state courts to describe an element of an offense does not

confine the reach of the constitutional jury trial right and due process guarantees.

See Ring v. Arizona, 536 U.S. 584, 610 (2002) (Scalia, J., concurring, joined by

Thomas, J.) ("[A]ll facts essential to imposition of the level of punishment that the

defendant receives - whether the statute calls them elements of the offense,

sentencing factors, or Mary Jane - must be found by the jury beyond a reasonable

doubt."). Even before Apprendi, this Court rejected a formalistic approach to

understanding the contours of the due process right to proof beyond a reasonable

doubt. Mullaney v. Wilbur, 421 U.S. 684, 699 (1975). Instead, this Court "requires

an analysis that looks to the 'operation and effect of the law as applied and enforced

by the state,' St. Louis S. WR. Co. v. Arkansas, 235 U.S. 350, 362 [] (1914), and to

the interests of both the State and the defendant as affected by the allocation of the

burden of proof." Id.

The Nevada Supreme Court has acknowledged that the functional effect of

the jury's weighing determination is to expose the defendant to a punishment that

exceeds the statutory maximum. Nunnery v. State, 263 P.3d 235,250 (Nev. 2011)

(assuming "the weighing determination increases the maximum sentence for first·

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degree murder beyond the prescribed statutory maximum"). It does not matter what

terms the Nevada Supreme Court and the State use to characterize this finding: it

must be found by a jury and proven beyond a reasonable doubt.

The State does not address McConnell's argument that the Nevada Supreme

Court's procedural rulings are not independent of federal law. Petition at 9 n.l. The

State argues the state court found McConnell's claim procedurally defaulted, BIO at

9·11, but it does not argue that this ruling constitutes an independent and adequate

state ground barring this Court's review. To the contrary, the State's phrasing of

the question presented acknowledges that the determination whether McConnell's

claim has merit is coterminous with whether he can show good cause to excuse any

state procedural default rules. BIO at i·ii. As the State acknowledges, "[w]hen 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)." Id. at i. This Court has also acknowledged that this default

ruling is not independent of federal law. Rippo v. Baker, 137 S. Ct. 905, 907 n.*

(2017).

This Court therefore has jurisdiction to decide the important question of

federal law presented here.

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CONCLUSION

For the foregoing reasons, McConnell requests that this Court grant his

petition for writ of certiorari and reverse the judgment of the Nevada Supreme

Court.

DATED this 24th day of June, 2019.

Respectfully submitted,

RENE VALLADARES

Federal Public Defender of Nevada

DAVIDANTH

Counsel ofRecord

Assistant Federal Public Defender

411 E. Bonneville, Ste. 250

Las Vegas, Nevada 89101

(702) 388-6577

David_Anthony@fd.org

Counsel for Petitioner

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