Opposition Brief — William P. Castillo, Petitioner v. Nevada

No. 19-7647

IN THE SUPREME COURT OF THE UNITED STATES

March 12, 2020

WILLIAM PATRICK CASTILLO, Petitioner,

ANTONIO LAVON DOYLE, Petitioner,

Vv.

THE STATE OF NEVADA, Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEVADA

RESPONDENT?’S BRIEF IN OPPOSITION

*DAVID ANTHONY

Nevada Bar #007978

Assistant Federal Public Defender

411 E. Bonneville, Ste. 250

Las Vegas, Nevada 89101

(702) 388- 6577

Stacy Newman

Brad Levenson

Ellesse Henderson

Assistant Federal Public Defenders

*Counsel for Appellant

JONATHAN E. VANBOSKERCK

Clark County District Attorney

Nevada Bar #006528

Regional Jus Justice Center

Lewis Avenue

Post Office Box 552212

Las V: egas, Nevada 89155-2212

(702) 671-2500

Counsel for Respondent

1: APPELLATE WPDOCS SECRETARY US S.CT CASTILLO. WILLIAM PATRICK. DOYLE, ANTONIO LAVON, 19-7647, ST'S OPP. TO CERT. PET..DOCX

QUESTION PRESENTED

CAPITAL CASES

1. Whether this Court should not overrule Clemons v. Mississippi,

494 US. 738, 110 S. Ct. 1441 (1990) because it is not

inconsistent with Apprendi v. New Jersey, 530 U.S. 466, 120 S.

Ct. 2348 (2000).

2. Whether the Nevada Supreme Court did not violate Petitioners’

rights by requiring the jury to determine whether the mitigating

circumstances did not outweigh the aggravating circumstances in

imposing the death penalty.

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|: APPELLATE WPDOCS SECRETARY US S.CT-CASTILLO, WILLIAM PATRICK, DOYLE. ANTONIO LAVON. 19-7647. ST'S OPP. TO CERT. PET..DOCX

TABLE OF CONTENTS

TABLE OF AUTHORITIES.......csssssssssssssessesssssesssnsessssnsesseessstesnnneeeennseseeesee iii

STATEMENT OF THE CASE .......ssssscssssssssssssssssssssssssssssisnsessseeennneseeeenassnsee

STATEMENT OF FACTS......ssscsssssssssssssssssssssssssssssstussssstesunsssseessnnsseeecsusssnsse 7

ARGUMENT o....sssscssssssssssssssssssesssssseesesnssseeeeinsetesnnsseeesssseesesunnseeetentasssteeses H

I. PETITIONERS’ PETITION SHOULD NOT BE GRANTED BECAUSE IT

DOES NOT RAISE A FEDERAL QUESTION. ....-ssscsssessseessssssttsssteeeee i

I]. WERE THIS COURT TO CONSIDER PETITIONER’S CLAIMS, THERE

IS STILL NO REASON TO INTERVENE BECAUSE PETITIONER’S

CLAIMS ARE MERITLESS. 0.0.0... eececesceesceeneeesceeeeeseseseenesseeestecsecsscessees 27

CONCLUSION o.oo ccc ececcceseceeceseceseraeceneessessceeeeessesneeaeeseeesesaensssessascssecsscneseeeeas 37

ll

1: APPELLATE WPDOCS SECRETARY US S.CT CASTILLO, WILLIAM PATRICK. DOYLE. ANTONIO LAVON. 19-7647, ST’S OPP. TO CERT. PET..DOCX

TABLE OF AUTHORITIES

Cases Page Number:

Apprendi v. New Jersey,

530 U.S. 466, 120 S. Ct. 2348 (2000) oo... cece ccssccsccssccseseeessestseesersessssecensaes 29

Archanian v. State,

122 Nev. 1019, 1040, 145 P.3d 1008, 1023 (2006) uc ce eceeeecssecssecssesees 30

Billups v. State,

72 So. 3d 122, 134 (Ala. Crim. App. 2010) v0... ccc ccccceccssscssessesssececcesseecsecessenses 32

Bridges v. State,

116 Nev. 752, 766, 6 P.3d 1000, 1010 (2000) uo. cceeeseecseeesscssseesensess 31

Brown v. Sanders,

546 U.S. 212, 217, 126 S. Ct. 884, 890 (2006) o.oo. cece cessescessssecesscesseesseccessees 3]

Caldwell v. Mississippi,

472 U.S. 320, 340 n. 7, 105 S. Ct. 2633 (1985) voc cccceccccseesseseccessseesecens 23, 36

Clemons v. Mississippi,

494 U.S. 738, 110 S. Ct. 1441 (1990) ooo cceccscreeessessstseeeeees i, 12, 29

Coleman v. Thompson,

501 U.S. 722, 729, 111 S. Ct. 2546, 2553-54 (1991). eceeersesssesseceees 18

Cunningham v. California,

549 U.S. 270 (2007) ....ccceccccsscccscessccecsesssscessssseecessessesssssecasssaceseaaesersusessisssecseees 26

DePasquale v. State,

106 Nev. 843, 852, 803 P.2d 218, 223 (1990) oo ecccsccccssccerseecesecesesuevesenes 35

Emil v. Filson,

D.Nev. No. 3:00-cv-00654- KJD-VPC, 2017 U.S. Dist. LEXIS 175609, at *3-5

(Oct. 22, 2017)... .eeeeccccssscccssscccecssssccscesessscessssasseceessaceececesseesessussecstacecenesecesteesecess 22

Ennis v. State,

122 Nev. 694, 701, 137 P.3d 1095, 1100 (2006) ....... cece sseesccerssssetseeees 29

Evans v. State,

117 Nev. 609, 646-47, 29 P.3d 498, 523 (2001) woo... ee eeccscssscesceceecsesseaees 17, 20

ili

1: APPELLATE WPDOCS SECRETARY US S.CT CASTILLO, WILLIAM PATRICK. DOYLE. ANTONIO LAVON, 19-7647. S1'S OPP. TO CERT. PET..DOCX

Ex parte Bohannon,

222 So.3d 525, 532-533 (Ala. 2016), cert. denied, 2017 U.S. LEXIS 871 (2017)

vaceeeeceeseceaessenausseeceesessesecesscesessecssuseececcsaeuesscesesstsurseecevsesssesesssaeesseettsuseessetttetsesseneece 21

Franklin v. Lynaugh,

487 U.S. 164, 179, 108 S .Ct. 2320 (1988) ooo ees eesesesessesssssscceersseseeseenenses 36

Franklin v. State,

110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994) ooo cessscsseceeserssecnseees 17

Gallego v. State,

101 Nev. 782, 711 P.2d 856 (1985)... cece ccccccccsscevssscssevssetsssecesessesestteesessacs 35

Gideon v. Wainwright,

372 U.S. 335, 345, 83 S. Ct. 792 (1963) ....cccccccscccssescssscessesssecsssccssesssssecesevensnass 28

Gillett v. State,

148 So.3d 260, 267-69 (Miss. 2014) oo... cece cc ceccccescecescessecsssesssessseeseesesasestecesees 31

Gonzales v. State,

118 Nev. 590, 593-596, 53 P.3d 901, 902-904 ooo. ecessscccessrscccecsecseseccccees 13

Groesbeck v. Warden,

100 Nev. 259, 260, 679 P.2d 1268, 1269 (1984) uo... ceeessessscetsessesesseeens 15

Hart v. State,

116 Nev. 558, 1 P.3d 969 (2000)... ieee ccecesessssssereesesscssssessscesecetsecssesenscccees 15

Hernandez v. Filson,

D.Nev. No. 3:09-cv-00545-LRH-WGC, 2017 U.S. Dist. LEXIS 147103, at *3-6

(Sep. 11, 2017)... ceccsccsssesssecssceecssseeeersssceeseessssessssseccsssessscccerseaseseeauearsceeeecses 22

Hildwin v. Florida,

490 U.S. 638 (1989) ooo. cccccccssecsssccesssssseuescesecssecscsseuscsessecsssccseccrsaceseneceerevenes 26, 33

Hortonville Joint Sch. Dist. v. Hortonville Educ. Asso.,

426 U.S. 482, 488, 96 S. Ct. 2308, 2312 (1976) oo... ccc ceeesssessecnsesssesseees 25

Hurst v. Florida,

136 S. Ct. 616 (2016)... ccc cccccecccssesssecscsssccssccsssscecssssssssscssecseeseraeeesressnseenees 15

In re Coley,

871 F.3d 455 (6th Cir, 2017) vce cccccccccsecssseccsssscsssscssecessscsesssecesssesestetcaeensunasees 28

1V

1; APPELLATE WPDOCS SECRETARY US S.CT CASTILLO, WILLIAM PATRICK. DOYLE. ANTONIO LAVON,. 19-7647. ST'S OPP TO CERT. PET..BOCX

In re Jones,

847 F.3d 1293, 1295 (10th Cir. 2017)... ccc ccc cccsccssscesscccssececssseccensecsseesssseseccess 28

Kansas v. Marsh,

548 U.S. 163, 175, 126 S. Ct. 2516, 2525 (2006) oo... ecccceecsccsceecesteceessscensecees 36

Lambert v. State,

825 N.E.2d 1261, 1263 (Ind. 2005)... ccc ceecessscssecesceessorsecsascesecaucssscseseteceees 32

Lambrix v. Secretary,

872 F.3d 1170, 1182-1183 (11th Cir.2017)..... eee ceeseeeseceesssessesseressenecs 28

Lambrix v. Sec'y. Florida Dep't of Corr.,

851 F.3d 1158, 1165 n.2 (11th Cir, 2017) ooo. cee ceeseessscessscccsscesssesetsecsesessenee 28

Lee v. Kemna,

534 U.S. 362, 375, 122 S. Ct. 877, 885 (2002) oo... eee ccsccesccececceecssecsssvsueressses 18

Leonard v. Filson,

D.Nev. No, 2:99-cv-0360-MMD-CWH, 2017 U.S. Dist. LEXIS 132801, at *6

(Aug. 18, 2017) .ccccssscssessscsessssssssssecsessesssssssssvseesssssssrseesseceessrssnvusssssssassasesesessssessse 22

Leonard v. State,

73 N.E.3d 155, 169 (Ind. 2017)... ccecccceseesscsssscssessscesssssecsseccsauesessuecenserseceuaess 20

Lisle v. State,

131 Nev. 356, 365-66, 351 P.3d 725, 732 (2015) oo... eeesssseesescessseesssssstsesseseesees 25

McConnell v. State,

125 Nev. , 212 P.3d 307, 314-15 (2009). ooo cccccccccesseccesssecasersenenss 36

McKinney v. Arizona,

140 S. Ct. 702 (2020)... cecccescccesssccsessesecssseescessunsssssessescssscseeeeseanscenesecsesenteaaens 33

Myers v. State,

2006 OK CR 12, ff] 105-115, 133 P.3d 312, 336-37 (Okla. Crim. App. 2006)... 32

Nunnery v. State,

127 Nev. 749, 772, 263 P.3d 235, 251(2011) occ cece cc cccsecesccesseeesecsesesseeees 35

Pellegrini v. State,

117 Nev. 860, 875, 34 P.3d 519, 529 (2001) oo... ecccccecesscsssscecescecessccsssssssneeens 14

Vv

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Penry v. Lynaugh,

492 U.S. 302, 319, 109 S. Ct. 2934 (1989) occu cessccerecsrssssssserecsees 23, 36

People v. Jones,

3 Cal. Sth 583, 618-619, 220 Cal. Rptr.3d 618, 398 P.3d 529 (2017) woe 21

People v. Mungia,

44 Cal. 4th 1101, 1139, 189 P.3d 880, 907 (2008) woe ec ccecccececcesesscssececsees 32

People v. Rangel,

62 Cal.4th 1192, 1235, 367 P.3d 649, 681 (2016), cert. denied, 2017 U.S. LEXIS,

85 U.S.L.W. 3325 (2017) occ cccccccccssssscsscssssssssssssssssscsssessesesssecesausetaecsscraveaseaeeess 2]

Powell v. State,

2016 Del. LEXIS 649, p. 10-11 (Del. 2016) oo... ceeeccsecceccecsseesssesscsseeseess 28

Rauf v. State,

145 A.3d 430 (Del. 2016)... cee ceeccccsscssccessecsseccssccssseceesceseecsvesssssecessceserteessses 24

Rice v. Sioux City Memorial Park Cemetery, Inc.,

349 U.S. 70, 79, 75 S. Ct. 614, 620 (1955) oo. cccccccesescsssesesscecesecsesssssessecees 12

Ring v. Arizona,

536 U.S. 584, 122 S. Ct. 2428 (2002) ooo. eee cecessscssecescessaccceeccsssessecsessceesoees 15

Rippo v. State,

132 Nev. 95, 101, 368 P.3d 729, 733 (2016) wo... ccssscssesessessessecsereserseees 17

Ross v. Moffit,

417 U.S. 600, 616-17, 94S. Ct. 2437, 2447 (1974) ooo ccecesesecessestesssersesseces 1]

Schriro v. Summerlin,

542 US. 348, 351-59, 124 S. Ct. 2519, 2522-27 (2004) ooo. ccccecscssscessseeesceees 27

Smith v. Phillips,

455 US. 209, 221, 102 S. Ct. 940, 948 (1982) oo. cesccseceseesssssetscsseceseces 12

Spaziano v. Florida,

468 U.S. 447 (1984) occ ceccccssssccssccssessscesssecsesccreceseseuseseseaeecsatssessuessusensees 26, 33

State v. Abdullah,

158 Idaho 386, 470-71, 348 P.3d 1, 79 (2015)... eee ceseesccsescecsseserstssesssnees 3]

vi

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State v. Berger,

2014 SD 61 4 31 n.8, 853 N.W.2d 45, 57 0.8 (2014)... eeececccscssceseesceceeesecees 31

State v. Eighth Judicial District Court (Riker),

121 Nev. 225, 234, 112 P.3d 1070, 1076 (2005) voce leecssscesssscesscsscseeseses 13

State v. Hausner,

230 Ariz. 60, 84, 280 P.3d 604, 628 (2012)... cesesccececcssssessecsscsscesecceces 32

State v. Kirkland,

140 Ohio St. 3d 73, 86-87, 15 N.E.3d 818, 834 (2014) voce ccccsceseesscscsecseeses 3]

State v. Mason,

2016 Ohi08400 J 42 (Ohio App.3d)......cccccccceescsccssccessserceaccessuesssccsesssceesseseeess 21

State v. Rice,

184 S.W.3d 646, 677 (Tenn. 2006) .o...eccccccccscsscsscsssceescesssesssessecsessersutecsceecess 32

State v. Sandoval,

280 Neb. 309, 357-58, 364, 788 N.W.2d 172, 214-15, 218 (2010) veces. 32

Thomas v. State,

115 Nev. 148, 979 P.2d 222 (1999)... cece ccsscssessssesssssssecesecetssssssetssesecsecseseces 17

United States v. Fields,

516 F.3d 923, 950 (10th Cir. 2008)... ccccsccccscscssecsscsssccersessssrsessscssssstecsesscess 22

United States v. Gabrion,

719 F.3d 511, 533 (6th Cir. 2013)... cecssecceeseesssesssesssesessssssesecsesseess 22

United States v. Mitchell,

502 F.3d 931, 993-94 (9th Cir. 2007)... cece sccesecssseecsssesseeseccssessssessscsereesneecees 22

United States v. Purkey,

428 F.3d 738, 750 (8th Cir, 2005) wo... cscsccsesscssesssesesecessescsessssscsesseseeseseses 23

United States v. Runyon,

707 F.3d 475, 516 (4th Cir. 2013)... cccccccceccssccssssseescsecessecsuesessssasessssersessesesees 22

United States v. Sampson,

486 F.3d 13,31 (Ist Cir. 2007) oo... cccsessccssecsssessseeeseccsscessessssssseneseseeeseses 23

Walton v. Arizona,

497 U.S. 639, 650, 110 S. Ct. 3047, 3055 (1990) cece cccseeseeseescccsees 24, 37

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Ward v. Illinois,

431 U.S. 767, 772-73, 97 S. Ct. 2085, 2089 (1977) ...ccssssscssccssssesssceccecsseseseescaees 25

Ybarra v. State,

100 Nev. 167, 679 P.2d 797 (1984)... cceecsssessssesssesessscecesecsecsecssseusscseceesesacseeacsess 35

Statutes

NRS 175.554(3)....ecsesssecscessesceseesceseescenssessessseecssscsesesseseeseesessscuceeeenaceacersaseeeas 35, 36

NRS 200.030(4)(a) oo... eeeseseeescescsseseesesessesesesssecsesssssassssesesseaeceecnaussesecareessssusasaesasess 36

NRS 34.726(1)..cccccccesccesesccsceeceseseesesecseeessesesacsessececseseseeesessesscsssssutaveaeevecucacaces 13,14

NRS 34.800 wc eceeeceeeseenecceneesessecssssssesesesesscscsesesseseesecsesasusacaeceesaccaeeatacaesaenens 15

NRS 34.800(1) oo... cecseecesecsseseeseceessesecsescessacesensssesesensessesesseeessatesucacceaeaseacacatens 15, 16

NRS 34.800(2) oo... ccccesccesssccscesessesceseesceeesesceeesesesessessessesesasecsessccsuevsasscseseeacerans 15, 16

NRS 34.810 vc ceccescscssesseseesseccecesececseesssesseseseseesssesssssacsssessesecseeesassaseesaeeecaracaces 16, 18

NRS 34.81 0(1)(D(2) occ eccesceeeeeeeesseseeeeseseeeecsesseaessssesecseeessssusaussessceceseetataceasaes 17

NRS 34.8101 )(D) cece ccceccseeeeeesseeseesesseessenecseeenssseeseseesecseeseesaussesesscssevavasesesesaeaes 16

NRS 34.81 0(2)....ccccccscesescsssseceeseeceesseeseeseessseeesecssesesesaseessessesecsessasesacaevecavacaaees 16, 17

Other Authorities

36 C.J.S. Federal Courts §295 (2012) oo... .cecsssscsssssesscsesssssesecssssscseesecsccaeestssacsussens 1]

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1, APPELLATE WPDOCS SECRETARY US S.CT CASTILLO. WILLIAM PATRICK, DOYLE. ANTONIO LAVON, 19-7647. ST'S OPP. TOCERT PET..DOCX

No. 19-7647

IN THE SUPREME COURT OF THE UNITED STATES

March 12, 2020

WILLIAM PATRICK CASTILLO, Petitioner,

ANTONIO ;LAVON DOYLE, Petitioner,

v.

THE STATE OF NEVADA, 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

I. WILLIAM CASTILLO

On January 19, 1996, William Castillo (hereinafter “Castillo” or collectively

with Doyle “Petitioners”), along with his co-defendant, was charged by Indictment

with: Count | — Conspiracy to Commit Burglary and/or Robbery; Count 2 -—

Burglary; Count 3 — Robbery, Victim 65 Years or Older; Count 4 — Murder with a

Deadly Weapon; Count 5 — Conspiracy to Commit Burglary and Arson; Count 6 —

Burglary; and Count 7 — First Degree Arson. On January 23, 1996, the State filed a

Notice of Intent to Seek Death Penalty.

1: APPELLATE WPDOCS SECRETARY US S.CT CASTILLO. WILLIAM PATRICK, DOYLE, ANTONIO LAVON, 19-7647, ST'S OPP TO CERT. PET..DOCX

Jury trial commenced on August 26, 1996. On September 4, 1996, the jury

returned a verdict of guilty on all counts. On September 19, 1996, the penalty phase

commenced. On September 25, 1996, the jury imposed a sentence of Death as to

Count 4. The jury found 4 aggravating circumstances: the murder was committed by

a person previously convicted of a felony involving the use or threat of violence, the

murder was committed while Castillo was committing a burglary, the murder was

committed while Castillo was committing a robbery, and the murder was committed

to avoid or prevent lawful arrest. The jury also found 3 mitigating circumstances:

the youth of Castillo at the time of the crime, the murder was committed while he

was under the influence of extreme emotional distress, and any other mitigating

circumstances. The Judgment of Conviction was filed on November 12, 1996.

On November 4, 1996, Castillo filed a Notice of Appeal. On April 2, 1998,

the Nevada Supreme Court affirmed Castillo’s conviction and death sentence. The

Nevada Supreme Court stayed issuance of remittitur pending Castillo’s Petition for

Writ of Certiorari, which was filed on January 22, 1999. On March 22, 1999, this

Court denied Castillo’s Petition for Writ of Certiorari. Remittitur for Castillo’s direct

appeal issued on April 28, 1999.

On April 2, 1999, Castillo filed a pro per Petition for Writ of Habeas Corpus.

On October 12, 2011, appointed counsel filed a Supplement in support of the

2

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Petition. On August 2, 2002, the district court held an evidentiary hearing. On

January 22, 2003, after additional briefing, the district court denied the Petition.

On February 19, 2003, Castillo filed a Notice of Appeal. On February 5, 2004,

the Nevada Supreme Court issued an Order affirming the district court’s ruling and

issuance of remittitur was stayed to allow Castillo to file a Petition for Writ of

Certiorari, which was filed on May 5, 2004. This Court denied Castillo’s Petition for

Writ of Certiorari on October 4, 2004. The Nevada Supreme Court issued remittitur

on October 27, 2004.

On June 22, 2004, Castillo filed a Petition for Writ of Habeas Corpus in

Federal Court. On July 7, 2004, counsel was appointed to represent Castillo. On July

31, 2007, Castillo filed a pro per motion to waive his federal habeas and requested

execution of the State death penalty judgment. On August 13, 2007, the United

States District Court thoroughly canvassed Castillo and ruled Castillo was

competent. On September 4, 2007, the Federal District Court dismissed Castillo’s

federal habeas action.

On May 7, 2008, Castillo filed a motion to vacate the previous judgment and

reopen his federal habeas action, which was granted on May 15, 2008. On December

15, 2008, Castillo filed an Amended Petition for Writ of Habeas Corpus. On

September 18, 2009, Castillo filed a Second Petition for Writ of Habeas Corpus. On

April 9, 2010, the district court denied Castillo’s Second Petition. The court entered

3

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its Findings of Fact, Conclusions of Law and Order on May 21, 2010. On June 4,

2010, Castillo filed a Notice of Appeal. On July 18, 2013, the Nevada Supreme Court

affirmed the district court’s decision and remittitur issued on December 17, 2013.

On January 6, 2017, Castillo filed a Third Petition for Writ of Habeas Corpus.

On May 3, 2017, the district court denied Castillo’s Third Petition. The court issued

its Findings of Fact, Conclusions of Law and Order on May 31, 2017. On July 5,

2017, Castillo filed a Notice of Appeal. On May 30, 2019, the Nevada Supreme

Court issued an Order affirming the district court’s decision. On September 9, 2019,

Castillo filed a Motion to Stay Remittitur Pending Petition for Writ of Certiorari. On

September 19, 2019, the Nevada Supreme Court issued an Order granting Castillo’s

motion. On February 3, 2020, Petitioners filed a Petition for Writ of Certiorari.

Il. ANTONIO DOYLE

On June 1, 1994, Antonio Lavon Doyle (hereinafter “Doyle” or collectively

with Castillo “Petitioners”), along with his co-defendants, was charged by

Information with: Count 1 — Murder; Count 2 — Conspiracy to Commit Murder;

Count 3 — Robbery; Count 4 — First Degree Kidnapping; and Count 5 — Sexual

Assault. On June 2, 1994, the State filed a Notice of Intent to Seek Death Penalty.

Jury trial commenced on January 3, 1995. On January 12, 1995, the jury

returned a verdict of guilty on all counts. On February 6, 1995, the penalty phase

commenced. On February 9, 1995, the jury returned a special verdict finding that

4

TI; APPELLATE WPDOCS SECRETARY US S.CT CASTILLO, WILLIAM PATRICK. DOYLE. ANTONIO LAVON, 19-7647. ST’S OPP. TO CERT. PET..DOCX

Doyle had no significant history of prior criminal activity and other mitigating

circumstances and weighed that against the finding that the murder was committed

by someone under a sentence of imprisonment, the murder was committed while the

person was engaged in the commission of or an attempt to commit any First Degree

Kidnapping, and the murder was committed to avoid or prevent a lawful arrest or to

effect an escape from custody. The jury imposed a sentence of Death as to Count 1.

The Judgment of Conviction was filed on May 24, 1995.

On May I, 1995, Doyle filed a Notice of Appeal. On July 22, 1996, the

Nevada Supreme Court reversed Doyle’s conviction for the sexual assault, citing

insufficient evidence. However, the Nevada Supreme Court affirmed Doyle’s

conviction on all other counts and affirmed Doyle’s death sentence. Remittitur

issued on July 1, 1997.

On June 26, 1997, Doyle filed a Petition for Writ of Habeas Corpus. On

September 22, 1997, Doyle filed a memorandum of points and authorities in support

of his petition. The district court held an evidentiary hearing on January 26, 1998.

On May 20, 1998, Doyle filed a supplemental brief. On July 8, 1998, the district

court heard oral argument and denied Doyle’s petition. The district court filed a

Findings of Fact, Conclusions of Law and Order on October 1, 1998. On October

16, 1998, Doyle filed a Notice of Appeal. On February 3, 2000, the Nevada Supreme

5

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Court affirmed the district court’s denial of Doyle’s petition. Remittitur issued on

April 13, 2000.

Doyle filed a Petition for Writ of Habeas Corpus in Federal Court on May 2,

2000. On May 31, 2000, Doyle was appointed counsel. On May 14, 2008, Doyle

filed a First Amended Petition of Writ of Habeas Corpus in Federal Court. On March

19, 2009, the State filed a Motion to Dismiss the First Amended Federal Petition.

On July 29, 2009, Doyle filed a Motion for Stay in Federal Court.

On July 24, 2009, Doyle filed a Second Petition for Writ of Habeas Corpus.

On December 18, 2009, the State filed its Response and Motion to Dismiss. On

February 8, 2013, the district court denied Doyle’s Second Petition and granted the

State’s Motion to Dismiss. The district court entered its Findings of Fact,

Conclusions of Law and Order on February 14, 2013. On March 12, 2013, Doyle

filed a Notice of Appeal. On September 22, 2015, the Nevada Supreme Court

affirmed the district court’s ruling and remittitur issued on May 6, 2016.

On January 11, 2017, Doyle filed a Third Petition for Writ of Habeas Corpus.

On May 23, 2017, the district court denied Doyle’s Petition. The district court

entered its Findings of Fact, Conclusions of Law and Order on October 25, 2017.

On November 29, 2017, Doyle filed a Notice of Appeal. On September 13, 2019,

the Nevada Supreme Court affirmed the district court’s decision. On November 8,

2019, Doyle filed a Motion to Stay the Issuance of Remittitur. On November 21,

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I: APPELLATE WPDOCS SECRETARY US S.CT CASTILLO. WILLIAM PATRICK, DOYLE. ANTONIO LAVON, 19-7647, ST'S OPP. TO CERT. PET..DOCX

2019, the Nevada Supreme Court granted Doyle’s Motion. On February 3, 2020,

Petitioners filed a Petition for Writ of Certiorari.

STATEMENT OF FACTS

The following factual summaries were presented by the Nevada Supreme

Court on affirmance of Petitioners’ direct appeals:

I. WILLIAM CASTILLO

In late November 1995, appellant William Patrick Castillo held a job as a

roofer in Las Vegas. Harry Kumma, a former co-worker, contacted Castillo and two

other roofing employees, Kirk Rasmussen and Jeff Donovan, about completing a

side job. The side job involved re-roofing the residence of the victim, Isabelle

Berndt.

Kumma, Rasmussen, Donovan, and Castillo worked on Berndt's roof on

November 25, 1995. While performing ground cleanup at Berndt's residence,

Castillo indicated to Donovan that he found a key to Berndt's home and wanted to

enter. Donovan told Castillo that he should not and directed Castillo to return the

key to the place where he found it. In response, Castillo stated “I'll just come back

Jater at nighttime.”

Prior to these events, Castillo began residing with his girlfriend, Tammy Jo

Bryant, and a friend, Michelle Platou. At about 6:00 p.m. on December 16, 1995,

Castillo left the apartment with Platou in Platou's car. The two returmed to the

apartment at approximately 3:00 a.m. on the morning of December 17, 1995, with a

VCR, a box containing silverware, and a bag containing knit booties. A few minutes

later, Castillo and Platou again departed. They returned about twenty minutes later.

At about 9:00 or 10:00 a.m. on December 17, 1995, Castillo and Platou

allegedly informed Bryant that they had committed a robbery and stolen several

items. According to Bryant, Castillo and Platou further informed her that while in

the house, Platou inadvertently bumped into a wall and made some noise. Castillo

and Platou allegedly told Bryant that Castillo then hit a sleeping person with a tire

iron Castillo brought into the house. The two then departed the scene. According to

Bryant, they further stated that, out of fear that they left incriminating fingerprints

on the wall of the house, they returned to the residence at 3:00 a.m. to burn down the

house.

In the early morning hours of December 17, 1995, neighbors notified the

police that Berndt's residence was ablaze. Firefighters found Berndt's body inside

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1: APPELLATE WPDOCS SECRETARY US S.CT CASTILLO, WILLIAM PATRICK, DOYLE. ANTONIO LAVON, 19-7647. ST’S OPP. TO CERT. PET..DOCX

the house. An arson investigator determined that two independent fires, set by

“human hands,” using some type of accelerant, caused the blaze. Investigators found

a charred bottle of lighter fluid at the scene and several spots in the living room

where an accelerant was present. Laboratory tests confirmed these findings.

According to the coroner's autopsy report, Berndt suffered “multiple crushingtype injuries with lacerations of the head, crushing injuries of the jaws,” and several

broken teeth. Berndt also had deep lacerations on the back of the head and injuries

to the face and ears. According to the coroner, all injuries were contemporaneous.

The coroner testified that Berndt died as a result of an intracranial hemorrhage due

to blunt force trauma to the face and head. The coroner further testified that these

injuries were consistent with blows from a crowbar or tire iron.

A Las Vegas Metropolitan Police Department crime analyst investigated

Berndt's residence and observed fire, smoke and water damage in the living room,

kitchen and master bedroom. He noted that dresser drawers had been opened, two

jewelry boxes had been opened, and the house had been “ransacked.” The crime

analyst also observed blood marks on the wall next to Berndt's body, which was

found lying on a bed.

On December 17, 1995, Berndt's only child, Jean Marie Hosking, arrived at

Berndt's residence. She searched the house and determined that her mother's

silverware was missing. This silverware featured a distinctive floral pattern, had an

engraved “B” on each piece, and was stored in a wooden box on the shelf in Berndt's

bedroom. Also missing were a VCR, Christmas booties Berndt was knitting for her

grandchildren, and eight $50 U.S. savings bonds.

On December 19, 1995, Rasmussen, one of Castillo's coworkers, contacted

the police. According to Rasmussen, during the carpool to work on December 18,

1995, Castillo said, “This weekend I murdered an 86-year-old lady in her sleep.”

Castillo also allegedly stated that he entered Berndt's house with the intent to steal

Berndt's valuables, hit Berndt numerous times with a tire iron, and heard her

“gurgling” in her own blood, before he put a pillow over her head to smother her.

Castillo also allegedly told Rasmussen that he had stolen a VCR, money, and

silverware and that he intended to sell these items to raise money to pay his attorney.

The following morning, Castillo allegedly told Rasmussen that the crime had

been reported on the news. On December 19, Rasmussen drove by Berndt's

residence, saw that it had been burned, and contacted the police to report what he

had learned.

On the evening of December 19, 1995, Charles McDonald, another roofer,

visited Castillo's apartment. Castillo offered to sell a set of silverware to McDonald

for $500. McDonald testified that the silverware was in a wooden box. When

McDonald later viewed Berndt's silverware, he noted that it appeared to be the same

silverware that Castillo tried to sell to him.

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Based upon the information provided by Rasmussen, police obtained and

executed a search warrant on the apartment shared by Castillo, Bryant, and Platou at

10:00 p.m. on December 19, 1995. Castillo and Bryant were present when the police

arrived and permitted them to enter; both Castillo and Bryant gave their consent to

a search of their apartment. Police recovered the silverware, the VCR, the booties,

and a bottle of lighter fluid from the apartment. The officers also located a notebook

with the notation “$50, VCR, $75, camera, silverware.”

After execution of the search warrant, the officers arrested Castillo. At the

detective bureau, Castillo waived his Miranda rights and made statements during

two separate, consecutive interviews. During the first interview, Castillo indicated

that he had received the VCR and other property from a friend. Shortly after the first

interview ended, the detectives returned and informed Castillo of the evidence that

had been obtained against him from Bryant and Rasmussen. Castillo then confessed

to the killing, robbery, and arson.

Castillo v. State, 114 Nev. 271, 273-75, 956 P.2d 103, 105-06 (1998).

II. ANTONIO DOYLE

On January 16, 1994, the nude body of twenty-year-old [E.M.] was discovered

some twenty-five feet off the roadway in an unimproved desert area of Clark County,

Nevada. The woman's body was found lying face down with hands extended

overhead to a point on the ground where it appeared some digging had occurred. A

four-inch twig protruded from the victim's rectum. Three distinct types of footwear

impressions were observed in the area, none of which matched the tread design of a

pair of women's athletic shoes located on the nearby dirt road. Also observed in the

area was a hole containing a broken condom, a condom tip, an open but empty

condom package, and two small packages of taco sauce.

In the opinion of the medical examiner, [E.M.] died from asphyxia due to

strangulation or blunt trauma to the head. The autopsy revealed nine broken ribs,

multiple areas of external bruising, contusions, lacerations, abrasions, and a ligature

mark on the anterior surface of the neck. Approximately 200 milliliters of fluid blood

was found in [E.M.]'s chest cavity. [E.M.]'s back and chest bore a number of

patterned contusions consistent with footwear impressions found at the crime scene.

Finally, the autopsy revealed severe laceration of the head and subarachnoid

hemorrhage (a thin layer of blood surrounding the brain) indicating blunt force

trauma to the skull. Laboratory analysis revealed traces of the drug PCP in [E.M.]'s

system.

Michael Smith, who had been arrested in an unrelated matter, provided the

police with the names of those he believed were responsible for the murder. Smith

recounted statements made by Doyle regarding a killing to which Doyle claimed to

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I: APPELLATE WPDOCS SECRETARY US S.CT CASTILLO, WILLIAM PATRICK. DOYLE. ANTONIO LAVON, 19-7647, ST’S OPP, TO CERT. PET..DOCX

have been a party. According to Smith, he and Doyle had overheard a girl tell some

other people about her friend having been killed. At that time, Doyle commented to

Smith that “we had to take someone out.” Doyle further stated that he, Darrin

Anderson, Shawn Atkins, and “Bubba” Atkins were at Anderson's house with a girl

and that each had sex with the girl. While they were taking the girl home, she told

the men that she was going to report them for rape and jumped from the truck in

which they were riding. They were eventually able to coax the girl back into the

truck and decided to kill her rather than face possible rape charges. The girl was

apparently so inebriated or under the influence of drugs that she was oblivious to the

direction the men were travelling. When they arrived at a remote area, the girl was

pulled from the truck and choked. Unsuccessful in their attempt to choke her to

death, the men then beat the girl. Finally, Doyle told Smith, two of the men held the

girl down while the other repeatedly dropped a brick on her face until she died.

With information obtained from Smith, the police contacted Darrin Anderson,

the owner of a small, yellow pickup truck. According to Anderson, on the night of

January 15, 1994, he was present with Doyle at the home of Shawn and “Bubba”

Atkins. After arriving, the four left the Atkins residence to attend a nearby party.

Anderson returned alone to the Atkins residence a short time later, and the other

three returned thereafter in the company of [E.M.], who appeared inebriated or under

the influence of drugs. Later, [E.M.] asked for a ride home, and Anderson suggested

that Doyle use Anderson's truck. At approximately 10:30 p.m., Doyle left with

[E.M.] and the Atkins brothers in Anderson's truck. Anderson awoke the next

morning to find Doyle and the Atkins brothers asleep at the Atkins residence. When

police later searched Anderson's truck, they found a pair of blood-stained white

socks between the seats.

Further information led investigators to contact Mark Wattley, another of

Doyle's friends. Wattley was present during a conversation where Doyle made

statements describing how Shawn Atkins was unable to subdue [E.M.] and how

“Bubba” Atkins intervened “and hit her with a head punch and dropped her.”

Thereafter, Doyle told Wattley that he (Doyle) began kicking [E.M.] in the head.

Eventually, one of the men grabbed a brick or rock and hit the girl in the head. At

one point in the conversation, Doyle demonstrated how he (Doyle) jumped in the air

and caused both of his feet to come down on Mason during the beating.

The police investigation eventually led to the execution of a search warrant at

Doyle's residence. During the search, the police impounded a pair of Adidas athletic

shoes with soles that apparently matched treadwear impressions found at the crime

scene and on [E.M.]'s body. Doyle was then placed under arrest. Later analysis of

the impounded shoes confirmed that the treadwear impressions were consistent with

the footwear impressions retrieved from the scene of the crime and observed upon

[E.M.]'s body.

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1. APPELLATE WPDOCS SECRETARY US S.CT CASTILLO, WILLIAM PATRICK, DOYLE. ANTONIO LAVON, 19-7647. STS OPP. TO CERT, PET..DOCX

Doyle v. State, 112 Nev. 879, 884-86, 921 P.2d 901, 905-06 (1996).

ARGUMENT

I. PETITIONERS’ PETITION SHOULD NOT BE GRANTED BECAUSE

IT DOES NOT RAISE A FEDERAL QUESTION.

Petitioners’ request for extraordinary relief does not present a conflict

between inferior courts or an important federal question. This Court should reject

Petitioners’ attempt to entice it into reviewing the Nevada Supreme Court’s denial

of Petitioners’ unsupported claim that the Nevada Supreme Court should not be

permitted to reweigh the aggravating and mitigating circumstances in death penalty

cases on appeal.

Rule 10 of the Rules of the Supreme Court of the United States (RSCUS)

precludes discretionary intervention in this matter. Certiorari is only warranted

where there is a substantial conflict between decisions of lower state and/or federal

courts, or where an important question of federal law needs to be settled. It is

generally accepted that “[a] petition for a writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings or the misapplication of a

properly stated rule of law.” 36 C.J.S. Federal Courts §295 (2012). As explained in

Ross v. Moffit, 417 U.S. 600, 616-17, 94 S. Ct. 2437, 2447 (1974), “[t]his Court’s

review ... is discretionary and depends on numerous factors other than the perceived

correctness of the judgment we are asked to review.”

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I: APPELLATE WPDOCS SECRETARY US S.CT-CASTILLO. WILLIAM PATRICK, DOYLE. ANTONIO LAVON, 19-7647. ST'S OPP. TO CERT. PET..DOCX

A conflict between lower courts must be substantial to warrant intervention

by this Court. Indeed, “[i]t is very important that [this Court] be consistent in not

granting the writ of certiorari except . . . in cases where there is a real and

embarrassing conflict of opinion and authority between the circuit courts of appeal.”

Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70, 79, 75 S. Ct. 614,

620 (1955).

An important question of federal law is one that goes beyond whether the

alleged error complained of “is undesirable, erroneous or even ‘universally

condemned.’” Smith v. Phillips, 455 U.S. 209, 221, 102 S. Ct. 940, 948 (1982). In

order to amount to an important federal question, the issue must be one of broad

scope that actually needs to be settled:

A federal question raised by a petitioner may be ‘of substance’ in the

sense that, abstractly considered, it may present an intellectually

interesting and solid problem. But this Court does not sit to satisfy a

scholarly interest in such issues. Nor does it sit for the benefit of the

particular litigants. ... ‘Special and important reasons’ imply a reach

to a problem beyond the academic or the episodic. This is especially

true where the issues involved reach constitutional dimensions, for then

there comes into play regard for the Court’s duty to avoid decisions of

constitutional issues unless avoidance becomes evasion.

Rice, 349 U.S. at 74, 75 S. Ct. at 616-17 (citations omitted).

Petitioners do not allege a substantial conflict or an important federal

question. Instead, Petitioner complains that this Court should overrule its decision

in Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441 (1990), to the extent that

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it allows an appellate court to independently reweigh aggravating circumstances

against mitigating circumstances to uphold a death sentence.

a. The State procedural bars constitute an adequate and independent

state law ground precluding relief.

Pursuant to NRS 34.726(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 of the entry of the judgment of

conviction or, if an appeal has been taken from the

judgment, within | 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.

The one-year time bar of NRS 34.726 is strictly construed. Gonzales v. State.

118 Nev. 590, 593-596, 53 P.3d 901, 902-904 (rejected post-conviction petition filed

two days late pursuant to the “clear and unambiguous” provisions of NRS

34.726(1)). Further, the district courts have a duty to consider whether

postconviction claims are procedurally barred. State v. Eighth Judicial District Court

(Riker), 121 Nev. 225, 234, 112 P.3d 1070, 1076 (2005). The Nevada Supreme Court

has found that “[a]pplication of the statutory procedural default rules to

postconviction habeas petitions is mandatory,” noting:

Habeas corpus petitions that are filed many years after

conviction are an unreasonable burden on the criminal

justice system. The necessity for a workable system

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fb APPELLATE WPDOCS SECRETARY US S.CT CASTILLO, WILLIAM PATRICK, DOYLE. ANTONIO LAVON. 19-7647, ST'S OPP. TO CERT. PET..DOCX

dictates that there must exist a time when a criminal

conviction is final.

Id. at 231, 112 P.3d at 1074. Additionally, the Nevada Supreme Court has held that

procedural bars “cannot be ignored when properly raised by the State.” Id. at 233,

112 P.3d at 1075. The Nevada Supreme Court has granted no discretion to the district

courts regarding whether to apply the statutory procedural bars. The Nevada

Supreme Court has held that the “clear and unambiguous” provisions of NRS

34.726(1) demonstrate an “intolerance toward perpetual filing of petitions for relief,

which clogs the court system and undermines the finality of convictions.” Pellegrini

v. State, 117 Nev. 860, 875, 34 P.3d 519, 529 (2001).

Here, remittitur issued from Castillo’s direct appeal on April 28, 1999, and

from Doyle’s direct appeal on July 1, 1997. This means that Petitioners had one year

from each of their respective remittitur dates to file a post-conviction Petition.

Castillo’s underlying Petition was filed on January 6, 2017, nearly 18 years after

remittitur issued and in excess of the one-year time frame. Doyle’s underlying

Petition was filed on January 11, 2017, nearly 20 years after remittitur issued and in

excess of the one-year time frame. Therefore, Petitioners’ claims are time barred and

review by this Court should be precluded.

Even if the one-year rule did not begin to run until Petitioners’ new issue was

available, their claims are still time barred. Petitioners’ contention is that appellate

courts should be precluded from reweighing aggravating circumstances against

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1; APPELLATE WPDOCS SECRETARY US S.CT-CASTILLO. WILLIAM PATRICK. DOYLE. ANTONIO LAVON, 19-7647. ST'S OPP. TO CERT. PET..DOCX

mitigating circumstances to uphold a death sentence on appeal. Petitioners premise

this contention upon Hurst _v. Florida, 136 S. Ct. 616 (2016). Petition 1-3. It is

indisputable that Hurst was published in 2016; however, Hurst was merely an

application of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002). Hurst, 136 S.

Ct. at 621-22 (“[t]he analysis the Ring Court applied to Arizona’s sentencing scheme

applies equally to Florida’s”). Ring was published on June 24, 2002. As such, this

claim is time barred because Petitioners failed to raise it within one year of Ring’s

publication. The district court judge correctly applied the one-year time bars in

denying the petitions below.

Further, NRS 34.800 recognizes that a post-conviction petition should be

dismissed when delay in presenting issues would prejudice the State in responding

to the petition or in retrial. NRS 34.800(1). NRS 34.800(2) creates a rebuttable

presumption of prejudice to the State if “[a] period of five years [elapses] between

the filing of a judgment of conviction, an order imposing sentence of imprisonment

or a decision on direct appeal of a judgment of conviction and the filing of a petition

challenging the validity of a judgment of conviction.” See also, Groesbeck v.

Warden, 100 Nev. 259, 260, 679 P.2d 1268, 1269 (1984), superseded by statute as

recognized by, Hart v. State, 116 Nev. 558, 1 P.3d 969 (2000) (“petitions that are

filed many years after conviction are an unreasonable burden on the criminal justice

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system. The necessity for a workable system dictates that there must exist a time

when a criminal conviction is final.”).

To invoke the presumption, the statute requires that the State specifically

plead presumptive prejudice. NRS 34.800(2). The State raised this bar in its

Response and Motion to Dismiss. More than 5 years has passed since remittitur

issued from Petitioners’ direct appeals on July 1, 1997, and January 28, 1999.

Indeed, over 18 years have passed since Castillo’s direct appeal was final and over

20 years have passed since Doyle’s direct appeal was final. As such, the State pled

statutory laches under NRS 34.800(2) and prejudice under NRS 34.800(1) against

their Third Petitions. After such a passage of time, the State is prejudiced in its ability

to answer these Petitions and retry the penalty-phase. If Petitioners’ third go around

on state post-conviction review was not dismissed or denied on the procedural bars,

the State would have been forced to track down witnesses who may have died or

retired in order to prove a case that is more than two decades old. Assuming

witnesses are available, their memories have certainly faded and they will not

present to a jury the same way they did in the 1990s. The district court was correct

in basing dismissal of the petition in part on NRS 34.800.

Moreover, claims that could have been raised on direct appeal or in a prior

petition are barred under NRS 34.810(1)(b). The failure to raise grounds for relief at

the first opportunity is an abuse of the writ. NRS 34.810(2). Additionally, petitions

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I: APPELLATE WPDOCS SECRETARY US S.CT CASTILLO, WILLIAM PATRICK. DOYLE. ANTONIO LAVON. 19-7647. ST'S OPP. TO CERT, PET..DOCX

that re-raise previously rejected complaints must be dismissed. Id. Nevada law

dictates that all claims appropriate for direct appeal must be pursued on direct appeal

or they will be “considered waived in subsequent proceedings.” Franklin v. State,

110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994), disapproved on other grounds,

Thomas v. State, 115 Nev. 148, 979 P.2d 222 (1999). The Nevada Supreme Court

has emphasized that: “[a] court must dismiss a habeas petition if it presents claims

that either were or could have been presented in an earlier proceeding, unless the

court finds both cause for failing to present the claims earlier or for raising them

again and actual prejudice to the petitioner.” Evans v. State, 117 Nev. 609, 646-47,

29 P.3d 498, 523 (2001) (emphasis added). Where a claim arises after direct appeal,

a petitioner has one year in which to file a petition alleging the claim or it too is

barred. Rippo v. State, 132 Nev. 95, 101, 368 P.3d 729, 733 (2016) (“[A] petition ...

has been filed within a reasonable time after the ... claim became available so long

as it is filed within one year after entry of the district court’s order disposing of the

prior petition or, if a timely appeal was taken from the district court’s order, within

one year after this court issues its remittitur.”).

Petitioners’ Hurst claims are barred by NRS 34.810(1)(b(2) as waived and by

NRS 34.810(2) as an abuse of the writ since it was not raised within a year of when

it became available to him. Petitioners’ contention is that a new penalty hearing is

required because of Hurst. Petition 23-24. It is indisputable that Hurst was published

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in 2016; however, Hurst was merely an application of Ring. Hurst, 136 S. Ct. at 621-

22 (“[t]he analysis the Ring Court applied to Arizona’s sentencing scheme applies

equally to Florida’s”). Ring was published on June 24, 2002. Petitioners’ failure to

raise this claim by June 24, 2003, amounts to a waiver. Petitioners could have raised

their Ring complaint during the litigation of his prior petitions or could have filed an

additional petition raising this contention. This claim could have been presented to

the Nevada Supreme Court at any point after June 24, 2002. Petitioners’ failure to

do so renders his claim procedurally barred under NRS 34.810.

Certiorari should be denied because Petitioners’ delay in raising these

arguments amounts to an adequate and independent state law ground precluding

relief. “This Court will not review a question of federal law decided by a state court

if the decision is sustainable on a state law ground that is independent of the federal

question and adequate to support the judgment.” Lee v. Kemna, 534 U.S. 362, 375,

122 S. Ct. 877, 885 (2002); Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct.

2546, 2553-54 (1991). This rule applies whether the state law ground is substantive

or procedural. Id. The adequate state ground doctrine applies to bar federal review

when the state court declines to address an inmate’s federal claims because the

inmate had failed to meet state procedural requirements.

b. Petitioners have failed to present an important federal question.

Petitioners argue that Hurst held the weighing determination, like the finding

of an aggravating circumstance, constitutes an “element” of the offense that must be

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proven by the State beyond a reasonable doubt. This interpretation of Hurst is

farfetched and disingenuous. It is one thing to argue for an extension of law based

on existing precedent, but quite another to misrepresent the holding of a case.

Counsel’s mischaracterization of the holding of Hurst strains the borders of candor

to the court.

This Court summarized its holding in Hurst in the first two paragraphs of the

opinion thusly:

A Florida jury convicted Timothy Lee Hurst of murdering

his coworker, Cynthia Harrison. A penalty-phase jury

recommended that Hurst’s judge impose a death sentence.

Notwithstanding this recommendation, Florida law

required the judge to hold a separate hearing and

determine whether sufficient aggravating circumstances

existed to justify imposing the death penalty. The judge so

found and sentenced Hurst to death.

We hold this sentencing scheme unconstitutional. The

Sixth Amendment requires a jury, not a judge, to find each

fact necessary to impose a sentence of death. A jury’s mere

recommendation is not enough.

Hurst, 136 S. Ct. at 619. Hurst does not cite to Winship or the reasonable doubt

standard because its holding only concerns the identity of the fact finder, not the

standard of proof. The holding of Hurst is founded upon the Sixth Amendment right

to a jury, not the Fourteenth Amendment Due Process requirement for proof beyond

a reasonable doubt. Hurst is silent on that issue. On remand, the Florida Supreme

Court interpreted Hurst as simply requiring that all critical findings necessary to

imposition of the death penalty must be found by the jury, not the judge. Hurst v.

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State, 202 So. 3d 40, 44 (Fla. 2016) (“In capital cases in Florida, these specific

findings required to be made by the jury include the existence of each aggravating

factor that has been proven beyond a reasonable doubt, the finding that the

aggravating factors are sufficient, and the finding that the aggravating factors

outweigh the mitigating circumstances”). After Hurst, Florida now requires all

necessary findings to be made by a jury rather than a judge, but still only applies the

reasonable doubt standard to the existence of the aggravating factors, not the

weighing. Id.

In Petitioners’ cases, a jury made all necessary findings for the death penalty,

including weighing, in full compliance with Hurst, which is nothing more than an

application of Ring. Accordingly, Hurst does not represent an intervening change in

law which requires discretionary intervention by this Court.

Many other state courts have rejected an interpretation of Hurst that would

extend the beyond-a-reasonable-doubt standard to the weighing determination:

Importantly, the [Hurst] opinion did not hold that

weighing must be done beyond a reasonable doubt. Indeed

Hurst says nothing at all about whether the weighing of

aggravating and mitigating circumstances must be

determined beyond a reasonable doubt. And Leonard

points to no such discussion. Instead he parses the

language of Hurst to infer the Court's meaning.

Leonard v. State, 73 N.E.3d 155, 169 (Ind. 2017). Evans v. State, No. 2013-DP-

01877-SCT, 2017 Miss. LEXIS 249, at *78 (June 15, 2017) (“The Hurst decision

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did not rest upon or even address the beyond-a-reasonable-doubt standard”); People

v. Rangel, 62 Cal.4th 1192, 1235, 367 P.3d 649, 681 (2016), cert. denied, 2017 U.S.

LEXIS, 85 U.S.L.W. 3325 (2017) (“The death penalty statute . . . does not require .

. . findings beyond a reasonable doubt . . . that the aggravating factors outweighed

the mitigating factors... .. Nothing in Hurst . . . affects our conclusions in this

regard.”); People v. Jones, 3 Cal. Sth 583, 618-619, 220 Cal.Rptr.3d 618, 398 P.3d

529 (2017); Ex parte Bohannon, 222 So.3d 525, 532-533 (Ala. 2016), cert. denied,

2017 U.S. LEXIS 871 (2017) (“Ring and Hurst require only that the jury find the

existence of the aggravating factor that makes a defendant eligible for the death

penalty—the plain language in those cases requires nothing more and nothing

less.”); State v. Mason, 2016 Ohio8400 § 42 (Ohio App.3d) (“Hurst did not expand

Apprendi and Ring.”). Appellant’s expansive reading of Hurst is undermined by the

denial of certiorari in Rangel and Bohannon. This Court allowed the rejection of

Petitioners’ argument by the California and Alabama Supreme Courts to stand. If

this Court intended the overbroad view of Hurst suggested by Petitioners, certiorari

would have been granted to give guidance to the lower courts.

Additionally, several federal district courts in Nevada have examined the issue

in at least 6 capital cases so far and consistently held that Hurst cannot be “stretched”

so far as to conclude that the reasonable doubt standard applies to the weighing

process:

21

I: APPELLATE WPDOCS SECRETARY US S.CT CASTILLO. WILLIAM PATRICK, DOYLE. ANTONIO LAVON, 19-7047. ST’'S OPP. TO CERT. PET..DOCX

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