Opposition Brief — Joseph Weldon Smith, Petitioner v. Nevada

No. 19-8090

IN THE SUPREME COURT OF THE UNITED STATES

April 21, 2020

JOSEPH WELDON SMITH, 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

*BRAD D, LEVENSON

Nevada Bar #013804

Assistant Federal Public Defender

411 E. Bonneville, Ste. 250

Las Vegas, Nevada 89101

(702) 388-6577

Robert Fitzgerald

Ellesse Henderson

Assistant Federal Public Defenders

*Counsel for Appellant

JONATHAN E. VANBOSKERCK

Nevada Bar #006528

Chief Deputy District Attorney

Office of the District Attorney

Regional Justice Center

300 Lewis Avenue

Post Office Box 552212

Las Vegas, Nevada 89155-2212

(702) 671-2500

Counsel for Respondent

1: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON. 19-8090, ST'S OPP. TO CERT. PET,,DOCX

QUESTION PRESENTED

CAPITAL CASE

1. 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.

i

I: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON, 19-8096. ST’S OPP. TO CERT. PET..DOCX

TABLE OF CONTENTS

TABLE OF AUTHORITIES uo... cccececscesesceseseseeseseceeseeeseseveecseseeesecsssscsessvscsaseeerecaearsees ill

STATEMENT OF THE CASE wo ccseseseseseesssessenecseseeesscsessesesssceeesesnesesscsasavsssasseeseuacanenes 1

ARGUMENT oo. cccccccscscscscsesesesecsensescseceensacsesessesassesesasseecsesaeasscassaesesecsevsvsasasensaresacananeas 3

I], PETITIONER’S PETITION SHOULD NOT BE GRANTED BECAUSE IT DOES

NOT RAISE A FEDERAL QUESTION. ......ccccccsssesssssssesesecsssecsscecescscsevsaceceeseesesasaes 3

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

STILL NO REASON TO INTERVENE BECAUSE PETITIONER’S CLAIMS

ARE MERITLESS. 00... cece eeeeeseseeeeseneeseeaenecaecaeeesesesesssasseeesesecasssesstsssssesuseseenss 15

CONCLUSION oooeeee cece ccccceneseeseesenecaeeeaesessesssseesesasssesassceesesasacsacsecessuessvsasantecaaesseeasas 20

il

1: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON, 19-8090. ST'S OPP. TO CERT. PET..DOCX

TABLE OF AUTHORITIES

Page Number:

Cases

Apprendi v. New Jersey,

530 U.S. 466, 120 S. Ct. 2348 (2000) occ ccc ccsccececscecseecseeceasessusssecssecceressteeeseeees 17

Caldwell v. Mississippi,

472 US. 320, 340 n. 7, 105 S. Ct. 2633 (1985)... ce ceccccesscsscsscssscsccssssrssesserscees 12,19

Coleman v. Thompson,

501 U.S. 722, 729, 111 S. Ct. 2546, 2553-54 (1991). ccc cesesssesesssessscssesssusscescees 8

Cunningham v. California,

549 U.S. 270 (2007) ....ccecsccesecesestscsesccsseccsssecsssusscsscsssecsssescaesesaestauessussaseestscetuesecesescees 14

DePasquale v. State,

106 Nev. 843, 852, 803 P.2d 218, 223 (1990) oo... ccscsssesecstecessesecsssesssscessesereees 18

Ennis v. State,

122 Nev. 694, 701, 137 P.3d 1095, 1100 (2006) oo... eeecssetssecssessnseeserees 16

Evans v. State,

117 Nev. 609, 646-47, 29 P.3d 498, 523 (2001)... eee ieeeceeeeseeseseseerseseeseess 7,10

Ex parte Bohannon,

222 $o0.3d 525, 532-533 (Ala. 2016), cert. denied, 2017 U.S. LEXIS 871 (2017)....... 1]

Franklin vy. Lynaugh,

487 U.S. 164, 179, 108 S. Ct. 2320 (1988) oo. cee ccesesesesesessevsecseesssecsssessessesssesereses 19

Franklin v. State,

110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994) oc cccesccsscesesscscseccsessecsscsssessesesseeses 7

Gallego v. State,

101 Nev. 782, 711 P.2d 856 (1985) oo... ceecccsessscsssescescssssessesssessetsrsssessueccsscsssceseneees 19

Gideon v. Wainwright,

372 U.S. 335, 345, 83S. Ct. 792 (1963) occ cececcscsscsscvsssecsssccsesssssecesesssssesstececeestecees 16

Gonzales v. State,

118 Nev. 590, 593-596, 53 P.3d 901, 902-904 ooo. cccecesscscseseccsscsssestssessecrsesesesess 5

Hildwin v. Florida,

A490 US. 638 (1989) ooo. ccccccecccscesesscssscesscessessscssseecsnseessasersueessessetasesssesieeessscassesseseses 14

ill

1: APPELLATE WPDOCS SECRETARY US S.CT SMITH, JOSEPH WELDON, 19-8090. ST’S OPP. TO CERT, PET..DOCX

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

426 U.S. 482, 488, 96 S. Ct. 2308, 2312 (1976) vooce cee eccccesceecesecesssssseseeceeseesscecseccceees 14

Hurst v. Florida,

577 US. __, 136. S. Ct. 616 (2016) oo. cccccccssccsscssesssaccesscssecssesatsrstsssserseseeeses 2,4, 6

Hurst v. State,

202 So. 3d 40, 44 (Fla. 2016)... .ccccccccscsseccsscsscesesssecesssesscecseseusssssstssssussessescsecesees 10

In re Coley,

871 F.3d 455 (6th Cir. 2017)... cccsscsssecssscccsseecesecesssesssessssesssssstesscsstesseseseecsscccce. 16

In re Jones,

847 F.3d 1293, 1295 (Oth Cir. 2017)....cccccccccccccscescesecescsssesessecsssesessesceseesssesetecesceses 16

Kansas v. Marsh,

548 U.S. 163, 175, 126 S. Ct. 2516, 2525 (2006)... cece ceccsscsscsceesessesssssseesscceseaseeeces 19

Lambrix v. Secretary,

872 F.3d 1170, 1182-1183 (11th Cir.2017) vices cecceccesececesccssessessssesesesevereeeccesees 16

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

851 F.3d 1158, 1165 n.2 (11th Cir. 2017)... ccc cee ceesesecesesscseseseassassscssessssecceeseeses 16

Lee v. Kemna,

534 U.S. 362, 375, 122 S. Ct. 877, 885 (2002) oo... eeececcescsesessscssssssesescescesssevssceceeseseserees 8

Leonard v. State,

73. N.E.3d 155, 169 (nd. 2017) voce cececcescsssscccesscssscessescccsssscsscssessesassssesesevececesseeces 10

Lisle v. State,

131 Nev. 356, 365-66, 351 P.3d 725, 732 (2015) ..oceccccceceesseessceessssssesessescrsereees 14,18

McConnell v. State,

125 Nev. , 212 P.3d 307, 314-15 (2009) occ ceceeeccsesuesscascsscsstasecesesees 19

Nunnery v. State,

127 Nev. 749, 772, 263 P.3d 235, 251(2011) wo.ceecccccc ee ccececesceeceecsssssesssccsecesscsescseecece 18

Penry v. Lynaugh,

492 U.S. 302, 319, 109 S. Ct. 2934 (1989) occ cc cceeccseceesesssasesesssessessstesees 12,19

People v. Jones,

3 Cal. 5th 583, 618-619, 220 Cal.Rptr.3d 618, 398 P.3d 529 (2017) uo ceeeceececcecceee 11

1V

I APPELLATE WPDOCS SECRETARY US $.CT SMITH, JOSEPH WELDON, 19-8090, ST'S OPP. TO CERT. PET..DOCX

People v. Rangel,

62 Cal.4th 1192, 1235, 367 P.3d 649, 681 (2016), cert. denied, 2017 U.S. LEXIS, 85

ULS.L.W. 3325 (2017) ...cccccccccccceccssscssecssssssvsssevsessceuecsnesessesarssasesacessssausessecarsereceneceeesss 11

Powell v. State,

2016 Del. LEXIS 649, p. 10-11 (Del. 2016). 0... cece ceccsscsssssseseessseserssssssesssecesseeess 16

Rauf v. State,

145 A.3d 430 (Del. 2016) ooo. cccecccscsecesscsscessccssesssessssssssscssssecascaseauessessecrsecenesenses 13

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

349 U.S. 70, 79, 75 S. Ct. 614, 620 (1955) ooo ceccesecsssssssrssesevssesetssecseessessesecseseneees 3

Ring v. Arizona,

536 U.S. 584, 122 S. Ct. 2428 (2002) oo cceccccccccccecsssecscssscsessscseserecsessusesssserecessueses 6, 8

Rippo v. State,

132 Nev. 95, 101, 368 P.3d 729, 733 (2016) .....ccccceecccescssscssccsesssessceesesceesssecssecseceuceseseees 7

Ross v. Moffit,

417 U.S. 600, 616-17, 94S. Ct. 2437, 2447 (1974)... ce ccccsccsessessscsssesceecesesatesesossseseeses 3

Schriro v. Summerlin,

542 U.S, 348, 351-59, 124 S. Ct. 2519, 2522-27 (2004) woo. ceeeeseseesecssessscseeees 15

Smith v. Phillips,

455 U.S. 209, 221, 102 S. Ct. 940, 948 (1982) occ ceeceseesssenscessssecesesseeeseeees 4

Smith v. State,

114 Nev. 33 (1998) oo cecccecsscesscesssesssssssssscssssssssssscsescessesessssseesnecssesssascnasessaseceseseses 2

Spaziano v. Florida,

468 U.S. 447 (1984) ooo ccc ccccccssesssssssssesssesssscascssesesssecsssusasessssssssesestasecsaeecssseesesescs 14

State v. Mason,

2016 Ohi08400 J 42 (Ohio App.3d) 0... cc ecesccssscessccsssceseceescesessssssesensssssaecsuessssceesseees 1]

Thomas v. State,

115 Nev. 148, 979 P.2d 222 (1999) ooo ieee eccescccscseesseccsssesssecsesensesessessseessecaceceeteress 7

United States v. Fields,

516 F.3d 923, 950 (LOth Cir, 2008) 00... cee cece cccesscescsccccecesaseveserseeesucsssessssseresssesersesees 1]

United States v. Gabrion,

719 F.3d 511, 533 (6th Cir. 2013)... cccccsceccessseccecseeesssecteseessrssesssesaressesesecees 1]

Vv

I: APPELLATE WPDOCS SECRETARY US S.CT SMITH, JOSEPH WELDON. 19-8090. ST'S OPP. TO CERT. PET..DOCX

United States v. Mitchell,

502 F.3d 931, 993-94 (9th Cir. 2007) oo. cccccccccsscssseccesceccessscesssssassssesecseseavececccessecees. 11

United States v. Purkey,

428 F.3d 738, 750 (8th Cir. 2005). ......ccccccccssceseseceeseseseescesesessseuevseseussseseeeccecceccecses 12

United States v. Runyon,

707 F.3d 475, 516 (4th Cir. 2013)... ccccccccccccscsccssceeseccscssecsessessessesauesavsessresecessessesses. 1]

United States v. Sampson,

2016 U.S. Dist. LEXIS 72060 (D. Mass. June 2, 2016) .occcccceeccsecscssccsessessecccececceces 12

United States v. Sampson,

486 F.3d 13,31 (1st Cir. 2007) oo... cccccccsccessccsscsccseccsecesceecsesssssaseaacececssssaeeteccececesecece, 1]

Walton v. Arizona,

497 U.S. 639, 650, 110 S. Ct. 3047, 3055 (1990) ove ccessessecescsssssssecccssceceeeces 12, 20

Ward v. Illinois,

431 U.S. 767, 772-73, 97 S. Ct. 2085, 2089 (1977)....ceeccececesceccessessessesscvercececsscccecece, 14

Ybarra v. State,

100 Nev. 167, 679 P.2d 797 (1984) wooo cccccccsscscsscsccseveceessectsctesettsessecsssvescesterseccesceces, 19

Statutes

NRS 175.554(3) ooecececcceseceessssesesessscesesssecsscsssssssccsecsnsveaseuaceseuesesetasesascrtsovasssesseusesescce. 18,19

NRS 200.030(4)(a) ....:cccccceccsssesscssessvssesssssssasssssessussesscscvsevseesevasesssaesaesssaasssessesseseececcesceceece. 19

NRS 34.7261) woeeeccessccssccsesssesscssscssessecsecseeesecssessssssssssssscssseecssssssvsesesesaesacereseseresceccsecceeess, 4

NRS 34.800 ooo eeeccsesecsetcessesssessessssecscssesecssesecsscsecausessaussassessstsssassessassassssssevsusesccseceesee, 6

NRS 34,800(1) onc. eeeeccccscsscssseeseessessesseessecsessssessessesssssvacerssesavauessssnsacesasnsesasesestesseseseccecccce. 6

NRS 34.800Q2) ooo ceececcesesssesesssessessecseccsecsecseesscessvssesssssssssssssssasaesacsaesauessessssssssuseescesecessece, 6

NRS 34.810 ooo eccecessesssecsseeecesssssesscsssscsssccscsasscsssessesauesssessteseassauessessssearssteecsseecccccce. 7,8

NRS 34.81 0(1)(D) eee eeeccccescesssscestesssessevevesscssssesssssssssssessessevsavaessssssaasssssssvassassesecseceeccese. 7

NRS 34.8101 )(D)(2) eee ccc cscssscsssesscseccsecsecssecsecsuevssesscssecsessssssessscsesesssasasesseseceratseceeececesees 8

NRS 34.810(2) .occcccccccccsccccesesesccssevssssasssssascsssessesseseceeesacensevaeessessesauaeesssrssassesececsescesece. 7,8

Other Authorities

36 C.J.S. Federal Courts §295 (2012) ....cccecccccccscesssecssesseesesectaesetecatsassseassestereceeceececcec. 3

vi

I: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON, 19-8090, ST’S OPP. TO CERT, PET,.DOCX

No. 19-8090

IN THE SUPREME COURT OF THE UNITED STATES

April 21, 2020

JOSEPH WELDON SMITH, 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

STATEMENT OF THE CASE

In 1990, Joseph Weldon Smith (hereinafter “Petitioner”) murdered his wife, J udith,

and her two daughters, Wendy and Kristy, in their home in Las Vegas. Petitioner also

attempted to kill Frank Allen with whom he had entered into a deal to purchase the home

in which the murders occurred. Petitioner was convicted of three counts of First-Degree

Murder with the Use of a Deadly Weapon and Attempted Murder with the Use of a Deadly

Weapon and was sentenced to death for Wendy's and Kristy's murders. On appeal, the

Nevada Supreme Court upheld the convictions but vacated the two death sentences because

the instructions regarding depravity of mind rendered that statutory aggravator

unconstitutionally vague as applied. Smith v. State, 110 Nev. 1094, 1103-04, 881 P.2d 649,

655 (1994). The matter was remanded for a new penalty hearing.

I: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON, 19-8090, ST'S OPP. TO CERT. PET..DOCX

After the second penalty hearing, a jury once again sentenced Petitioner to death for

Kristy's and Wendy's murders. On appeal, the Nevada Supreme Court vacated the death

sentence for Kristy's murder and imposed a sentence of life without the possibility of parole

due to an improper depravity-of-mind Instruction, but affirmed the death sentence for

Wendy's murder. Smith v. State, 114 Nev. 33, 953 P.2d 264 (1998). Remittitur issued on

August 11, 1998.

Immediately thereafter, Petitioner’s first post-conviction petition was filed and then

eventually denied on the merits in 2005. That denial was affirmed on appeal in an

unpublished order. Remittitur issued on December 29, 2006. Smith then returned from

federal court in a second state post-conviction petition filed on March 31, 2008. That

petition was denied as an untimely and successive petition without good cause, which

decision was affirmed on appeal in an unpublished order. Remittitur issued on December

13, 2010.

Six years later, Petitioner once again returned to state court this time with his third

state habeas petition which raised a single issue based on Hurst v. Florida, 577 U.S. __,

136 8S. Ct. 616 (2016). The State filed a response and motion to dismiss. A reply was filed

on March 22, 2017. The judge heard argument and denied the third habeas petition. On

September 26, 2019, the Nevada Supreme Court issued an Order affirming the district

court’s denial of Petitioner’s Third Habeas Petition.

On March 20, 2020, Petitioner filed the instant Petition for Writ of Certiorari.

///

///

2

1: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON, 19-8090, ST'S OPP. TO CERT, PET..DOCX

ARGUMENT

I. PETITIONER’S PETITION SHOULD NOT BE GRANTED BECAUSE IT

DOES NOT RAISE A FEDERAL QUESTION.

Petitioner’s request for extraordinary relief does not present a conflict between

inferior courts or an important federal question. This Court should reject Petitioner’s

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

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 “Tal

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.1.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.”

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).

3

I: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON. 19-8090, ST’S OPP. TO CERT. PET..DOCX

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).

Petitioner does not allege a substantial conflict or an important federal question.

Instead, Petitioner complains that this Court should use the decision in Hurst v, Florida,

S77 U.S. __, __, 136 S. Ct. 616 (2016) as cause to review the Nevada Supreme Court’s

affirmance of Petitioner’s conviction. Petitioner also contends that the Nevada’s procedure

for allowing the jury to determine whether the death penalty will be imposed is inadequate.

Both Petitioner’s claims are meritless and, thus, present neither a substantial conflict nor

an important federal question warranting review by this Court.

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

4

1. APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON. 19-8090, ST'S OPP. TO CERT, PET..DOCX

an appeal has been taken from the judgment, within 1 year after

the Supreme Court issues its remittitur. For the purposes of this

subsection, good cause for delay exists if the petitioner

demonstrates to the satisfaction of the court:

(a) That the delay is not the fault of the petitioner; and

(b) That dismissal of the petition as untimely will unduly

prejudice the petitioner.

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. 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 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.

Here, remittitur issued from Petitioner’s direct appeal on August 11, 1998. This

means that Petitioner had until August 11, 1999, to file a timely habeas petition. Petitioner’s

underlying Petition was filed on January 9, 2017, nearly 20 years after remittitur issued

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

and review by this Court should be precluded.

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

available, his claims are still time barred. Petitioner’s contention is that appellate courts

should be precluded from reweighing aggravating circumstances against mitigating

circumstances to uphold a death sentence on appeal. Petitioner premises this contention

5

1: APPELLATE WPDOCS SECRETARY US 8.CT SMITH. JOSEPH WELDON. 19-S090. ST'S OPP. TO CERT. PET..DOCX

upon Hurst v. Florida, 577U.S.__,__, 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 Y.

Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002). Hurst, 577 U.S. at__, 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 Petitioner 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. Thus, there

were adequate and independent state law grounds for denying Petitioner’s Petition.

Therefore, review by this Court should be precluded.

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.”

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 Petitioner’s

direct appeal on August 11, 1998. Indeed, over 20 years have passed since Petitioner’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 his Third Petition. After such a passage of time,

6

I: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON, 19-8090, ST'S OPP. TO CERT, PET..DOCX

the State is prejudiced in its ability to answer this Petition and retry the penalty-phase.

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 and, thus, there were adequate and

independent state law grounds for denying Petitioner’s Petition. Therefore, review by this

Court should be precluded.

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 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

7

I: APPELLATE WPDOCS SECRETARY US S.CT’SMITH. JOSEPH WELDON. 19-8090. ST'S OPP. TO CERT. PET..DOCX

a timely appeal was taken from the district court’s order, within one year after this court

issues its remittitur.”).

Petitioner’s Hurst claim is 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. Petitioner’s contention is that, because of the decision in Hurst, this Court

should reexamine Nevada’s procedures for allowing a jury to determine whether or not the

death penalty is warranted. Petition 9-12. 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, 577 U.S. at__, 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. Petitioner’s failure to raise this claim by June 24, 2003, amounts to a

waiver. Petitioner 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.

Petitioner’s failure to do so renders his claim procedurally barred under NRS 34.810.

Certiorari should be denied because Petitioner’s 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

8

I; APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON, 19-8090, SI'S OPP. TO CERT, PET..DOCX

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. Petitioner has failed to present an important federal question.

Petitioner argues that Hurst held the weighing determination, like the finding of an

aggravating circumstance, constitutes an “element” of the offense that must be 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, 577 U.S. at__, 136 S. Ct. at 619. Hurst does not cite to 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.

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I: APPELLATE WPDOCS SECRETARY US S.CT-SMITH. JOSEPH WELDON, 19-8090, ST'S OPP. TO CERT. PET..DOCX

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. 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 Petitioner’s case, 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 did not rest upon

or even address the beyond-a-reasonable-doubt standard”); People v. Rangel, 62 Cal.4th

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1-APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON. 19-8090, ST'S OPP. TO CERT. PET..DOCX

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. 5th 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 4 42 (Ohio App.3d) (“Hurst did not expand

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

of certiorari in Rangel and Bohannon. This Court allowed the rejection of Petitioner’s

argument by the California and Alabama Supreme Courts to stand. If this Court intended

the overbroad view of Hurst suggested by Petitioner, certiorari would have been granted to

give guidance to the lower courts.

Well before Hurst, every federal circuit court to have addressed the argument that

the reasonable doubt standard applies to the weighing of aggravating and mitigating

circumstances has rejected it, reasoning that the weighing process constitutes not a factual

determination, but a complex moral judgment. See United States v. Gabrion, 719 F.3d 511,

533 (6th Cir. 2013); United States v. Runyon, 707 F.3d 475, 516 (4th Cir. 2013); United

States v. Fields, 516 F.3d 923, 950 (10th Cir. 2008); United States v. Mitchell, 502 F.3d

931, 993-94 (9th Cir. 2007); United States v. Sampson, 486 F.3d 13, 31 (1st Cir. 2007);

United States v. Fields, 483 F.3d 313, 345-46 (5th Cir. 2007); United States v. Purkey, 428

1]

J: APPELLATE WPDOCS SECRETARY US S.CT SMITH, JOSEPH WELDON, 19-8090. ST'S OPP. TO CERT, PET..DOCX

F.3d 738, 750 (8th Cir. 2005). Under Petitioner’s interpretation of Hurst, all of these cases

would now be overruled; however, they all remain good law even though Hurst was

published almost two years ago. The fact that not one of these leading cases on the issue

was even mentioned by the Court in Hurst or since been overruled belies Petitioner’s

assertion that Hurst addressed such an issue. Nor did this Court in Hurst overrule or even

discuss its own authority that weighing is “a moral decision that is not susceptible to proof.”

Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934 (1989); Caldwell v. Mississippi, 472

U.S. 320, 340 n. 7, 105 S. Ct. 2633 (1985); see also United States v. Sampson, 2016 U.S.

Dist. LEXIS 72060 (D. Mass. June 2, 2016) (holding that Kansas v. Carr undermines the

claim that Hurst requires that the weighing of mitigating and aggravating factors be subject

to the "beyond a reasonable doubt" standard). Clearly, Petitioner’s interpretation of Hurst

is against the great weight of authority.

Another strong reason to reject Petitioner’s dubious construction of Hurst is how

this Court dealt with its own precedent in Hurst. Hurst cited Walton v. Arizona, 497 U.S.

639, 650, 110 S. Ct. 3047, 3055 (1990), without overruling it. Hurst, 577 U.S. at__, 136

S. Ct. at 622. This is telling because Petitioner’s view that Hurst requires application of the

beyond a reasonable doubt standard to the weighing of aggravating against initigating

circumstances is in direct conflict with Walton:

So long as a State’s method of allocating the burdens of proof

does not lessen the State’s burden to prove every element of

the offense charged, or in this case to prove the existence of

ageravating circumstances, a defendant’s constitutional rights

are not violated by placing on him the burden of proving

mitigating circumstances sufficiently substantial to call for

leniency.

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I: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON. 19-8090. ST'S OPP. TO CERT. PET..DOCX

Walton, 497 U.S. at 650, 110 S. Ct. at 3055 [emphasis added]. If this Court intended the

holding Petitioner attributes to Hurst, it would have addressed this direct conflict. Indeed,

where Walton conflicted with Ring, this Court squarely addressed the issue and overruled

Walton in part. Ring, 536 U.S. at 609, 122 S. Ct. at 2443 (“we overrule Walton to the extent

that it allows a sentencing judge ... to find an aggravating circumstance necessary for

imposition of the death penalty.”).

In Rauf, the Delaware death penalty scheme was held unconstitutional because it

allowed for a judge to find the existence of an aggravating circumstance and to conduct

weighing and did not require juror unanimity. Rauf v. State, 145 A.3d 430 (Del. 2016).

While these decisions were “prompted” in part by the Hurst decision, the analysis actually

required the court “to interpret not simply the Sixth Amendment itself, but the complex

body of case law interpreting it,” leading to “a diversity of views on exactly why the

answers to the questions are what we have found them to be.” Id. Specifically, Question 4

which applies the reasonable doubt burden of proof to the weighing process, there’s

nothing in the Rauf opinion which cites to the Hurst case as the basis or reason for that

particular decision. Id. In fact, the concurrences suggest that the beyond-a-reasonabledoubt standard applies to weighing because of historical analysis and the Delaware

Constitution rather than as a direct requirement of Hurst. Id. at 481-2 (Strine, concur), 484-

5 (Holland, concur).

Under Nevada law, weighing is only part of death “eligibility” to the extent a jury

is precluded from imposing death if it determines that the mitigating circumstances are

sufficient to outweigh the aggravating circumstances. Lisle v. State, 131 Nev. 356, 365-66,

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|: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON, 19-8090. ST’'S OPP, TO CERT. PET..DOCKX

351 P.3d 725, 732 (2015). But this does not mean that weighing is part of the natrowing

aspect of capital punishment the same as aggravating circumstances. Id. Instead, weighing,

by definition, is part of the individualized consideration that is the hallmark of what the

Supreme Court has referred to as the “selection” phase of the capital sentencing process.

Id. Petitioner ignores that Nevada’s use of the term, “eligibility,” unlike the federal courts,

has historically referred to both narrowing and individualized selection. Id. A State

Supreme Court’s interpretation and construction of its own state statutes is binding on all

federal courts. See e.g., Ward v. Illinois, 431 U.S. 767, 772-73, 97 S. Ct. 2085, 2089 (1977):

Hortonville Joint Sch. Dist. v. Hortonville Educ. Asso., 426 U.S. 482, 488, 96 S. Ct. 2308,

2312 (1976). Petitioner is not at liberty to re-interpret Nevada statutes in a manner

inconsistent with the Nevada Supreme Court’s own interpretation.

Notably, the Apprendi line of cases expressly acknowledge that they have no effect

on sentence selection. See, e.g., Cunningham v. California, 549 U.S. 270 (2007) (“Other

States have chosen to permit judges genuinely ‘to exercise broad discretion ... within a

statutory range,’ which, ‘everyone agrees,’ encounters no Sixth Amendment shoal.”)

[internal citations omitted]. This is further supported by the expressly limited nature of

Hurst’s overruling of Spaziano v. Florida, 468 U.S. 447 (1984) and Hildwin v. Florida, 490

U.S. 638 (1989). Hurst only overrules Spaziano and Hildwin “to the extent they allow a

sentencing judge to find an aggravating circumstance, independent of a jury’s factfinding,

that is necessary for imposition of the death penalty,” and that “Florida’s sentencing

scheme, which required the judge alone to find the existence of an aggravating

circumstance, is therefore unconstitutional.” Hurst, 136 S. Ct. at 624. But in Spaziano, the

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1: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON, 19-8090, ST'S OPP, TO CERT. PET..DOCX

Supreme Court also held that the Sixth Amendment right to trial by jury has no effect on

sentence selection. Spaziano, 468 U.S. at 459-62. That holding from Spaziano remains

undisturbed after Hurst, and Hurst thus has no impact on the weighing process that is part

of the sentence selection process in Nevada.

Petitioner’s contention does not merit discretionary intervention by this Court

because he fails to raise an important federal question and/or demonstrate a substantial

conflict between inferior courts.

H. WERE THIS COURT TO CONSIDER PETITIONER’S CLAIMS. THERE IS

STILL NO REASON TO INTERVENE BECAUSE PETITIONER’S CLAIMS

ARE MERITLESS.

Even if this Court were willing to ignore its own rules and precedents in order to

consider Petitioner’s challenge to the Nevada Supreme Court’s upholding standing

precedent, there still is no reason for this Court to intervene since Petitioner’s claims are

meritless.

a. Hurst is Not Retroactive and Hurst is an application of Ring.

As explained supra, Hurst ruled that “[t]he analysis the Ring Court applied to

Arizona’s sentencing scheme applies equally to Florida’s.” Hurst, 136 S. Ct. at 621-22.

The entirety of the Court’s discussion in Hurst focused on applying Ring to the case before

it. Id. This Court addressed the retroactivity of Ring in Schriro v. Summerlin, 542 U.S.

348, 351-59, 124 S. Ct. 2519, 2522-27 (2004). After an extensive analysis, the Court

concluded that “Ring announced a new procedural rule that does not apply retroactively to

cases already final[.]” Id. at 358, 124 S. Ct. at 2526-27.

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I: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON. 19-8090. STS OPP. TO CERT, PET..DOCX

Accordingly, several other courts have concluded that Hurst does not establish a

right "newly recognized by the Supreme Court and made retroactively applicable to cases

on collateral review." See Lambrix v. Sec'y. Florida Dep't of Corr., 851 F.3d 1158, 1165

n.2 (11th Cir. 2017); Lambrix v. Secretary, 872 F.3d 1170, 1182-1183 (11th Cir.2017); In

re Jones, 847 F.3d 1293, 1295 (10th Cir. 2017); In re Coley, 871 F.3d 455 (6th Cir. 2017).

Given the conclusion that Hurst is nothing more than an application of Ring, it necessarily

follows that Hurst is not retroactive the same as Ring.

The Delaware Supreme Court appears to be the lone dissenter from the view that

Hurst is not retroactive and instead held that its precedent interpreting Hurst had retroactive

application as a watershed rule of criminal procedure. Powell v. State, 2016 Del. LEXIS

649, p. 10-11 (Del. 2016). However, the Delaware Supreme Court distinguished its

precedent applying Hurst from Hurst and Ring. Id. at 9 (“unlike Rauf, neither Ring nor

Hurst involved a Due Process Clause violation caused by the unconstitutional use of a

lower burden of proof.”’).

It is important to note that this burden of proof issue is the entire point of Petitioner’s

argument. This conclusion, by the only Court offering any support to Petitioner’s position,

that his argument is fundamentally distinguishable from Hurst, should be fatal to his claim.

Regardless, reliance upon the watershed rule of criminal procedure exception to the bar

against retroactive application to final convictions is problematic because “with the

exception of the right to counsel in Gideon v. Wainwright, 372 U.S. 335, 345, 83 S. Ct.

792 (1963), the Supreme Court has not recognized any such rule.” Ennis v. State, 122 Nev.

694, 701, 137 P.3d 1095, 1100 (2006). Petitioners’ convictions were final with the

16

}: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON, 19-8090, ST’'S OPP. TO CERT. PET..DOCX

remittiturs issued in 1997 and 1999 from their direct appeals. As such, neither Ring nor

Hurst apply to this matter.

b. Neither appellate reweighing nor the selection decision implicates Hurst.

Either Petitioner is misusing Hurst as a tool to raise a burden of proof challenge to

the post-death eligibility selection determination or he is suggesting that the Nevada

Supreme Court’s reweighing analysis on appeal of the denial of his second habeas petition

violated Hurst. Both of these complaints are equally unpersuasive because the Nevada

Supreme Court has rejected the view that the post-death eligibility selection decision is a

factual determination.

Ring applied Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), to

Arizona’s death penalty scheme, which allowed a judge to determine whether a statutory

aggravating circumstance existed. The Ring Court determined that “[b]Jecause Arizona’s

enumerated aggravating factors operate as ‘the functional equivalent of an element of a

greater offense,’ ... the Sixth Amendment requires that they be found by a jury.” Ring, 536

USS. at 609, 122 S. Ct. at 2443. Similarly, Hurst concluded:

The Sixth Amendment protects a defendant’s right to an

impartial jury. This right required Florida to base Timothy

Hurst’s death sentence on a jury’s verdict, not a judge’s

factfinding. Florida’s sentencing scheme, which required the

judge alone to find the existence of an aggravating

circumstance, is therefore unconstitutional.

Hurst, 577 U.S. at__, 136 S. Ct. at 624.

The beyond-a-reasonable-doubt standard does not apply to the selection phase of a

capital sentencing proceeding since it is not a factual determination. Nevada capital penalty

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1: APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON, 19-S090. ST'S OPP. TO CERT, PET..DOCX

proceedings comply with the requirements of Apprendi, Ring and Hurst since a jury

determines death eligibility using the beyond-a-reasonable-doubt standard:

At the penalty phase of a capital trial in Nevada, the jury

determines whether any aggravating circumstances have been

proven beyond a reasonable doubt and whether any mitigating

circumstances exist. NRS 175.554(2), (4). If the jury

unanimously finds that at least one statutory aggravating

circumstance has been proven beyond a reasonable doubt, the

jury must also determine whether there are mitigating

circumstances ‘sufficient to outweigh the aggravating

circumstance or circumstances found.’ NRS 175.554(3).

Nunnery v. State, 127 Nev. 749, 772, 263 P.3d 235, 251(2011).

Once the jury determines that the prosecution has established the presence of one or

more aggravating circumstances beyond a reasonable doubt, thereby establishing death

eligibility, the question becomes one of determining the appropriate punishment. However,

this second step “is not part of the narrowing aspect of the capital sentencing process.

Rather, its requirement to weigh aggravating and mitigating circumstances renders it, by

definition, part of the individualized consideration that is the hallmark of what [this Court]

has referred to as the selection phase of the capital sentencing process.” Lisle v. State, 131

Nev. ,__—, 351 P.3d 725, 732 (2015). This weighing is not a factual determination and

is not subject to the beyond-a-reasonable-doubt standard. Nunnery, 127 Nev. __, 263 P.3d

at 251-53. The Court reached this conclusion in the context of a Ring and Apprendi

challenge to the omission of the beyond-a-reasonable-doubt standard from Nevada’s

weighing instruction. Id.

Nevada has long rejected any attempts to apply a reasonable doubt standard to the

weighing process. DePasquale v. State, 106 Nev. 843, 852, 803 P.2d 218, 223 (1990);

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t- APPELLATE WPDOCS SECRETARY US S.CT SMITH. JOSEPH WELDON, 19-8090. ST’S OPP. TO CERT. PET..DOCX

Gallego vy. State, 101 Nev. 782, 711 P.2d 856 (1985); Ybarra v. State, 100 Nev. 167, 679

P.2d 797 (1984). In Nevada, the weighing process is mandatory and must be conducted by

a jury, but the reasonable doubt standard does not apply to this individualized decision by

the jurors: “Nothing in the plain language of these provisions [NRS 200.030(4)(a) and NRS

175.554(3)] requires a jury to find, or the State to prove, beyond a reasonable doubt that

no mitigating circumstances outweighed the aggravating circumstances in order to impose

the death penalty.” McConnell v. State, 125 Nev. __, 212 P.3d 307, 314-15 (2009).

Instead, Nevada’s weighing process is “a moral decision that is not susceptible to

proof.” Id. (citing Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934 (1989)): Caldwell

v. Mississippi, 472 U.S. 320, 340 n. 7, 105 S. Ct. 2633 (1985) (weighing is a “highly

subjective,” “largely moral judgment” “regarding the punishment that a particular person

deserves ....”). Exempting this moral judgment from the beyond a reasonable doubt

standard is permissible because the states enjoy a broad range of discretion in imposing the

death penalty, including the manner in which aggravating and mitigating circumstances are

weighed:

In aggregate, our precedents confer upon defendants the right

to present sentencers with information relevant to the

sentencing decision and oblige sentencers to consider that

information in determining the appropriate sentence. The

thrust of our mitigation jurisprudence ends here. “[W]e have

never held that a specific method for balancing mitigating and

aggravating factors in a capital sentencing proceeding is

constitutionally required.”

Kansas v. Marsh, 548 U.S. 163, 175, 126 S. Ct. 2516, 2525 (2006) (citing Franklin v.

Lynaugh, 487 U.S. 164, 179, 108 S. Ct. 2320 (1988)). “Weighing is not an end, but a means

to reaching a decision.” Id. Further, a state death penalty statute may place the burden on

19

1 APPELLATE WPDOCS SECRETARY US S.CT SMITH, JOSEPH WELDON, 19-8090. ST'S OPP. TO CERT. PET.DOCX

the defendant to prove that the mitigating circumstances outweigh aggravating

circumstances, Walton v. Arizona, 497 U.S. 639, 650, 110 S. Ct. 3047 (1 990). Accordingly,

Hurst imposes no burden on the states as to a jury’s individualized and highly subjective

weighing of aggravating and mitigating circumstances in a death penalty determination.

Because Petitioner received all the protections required by Ring, the Nevada

Supreme Court did not err in affirming the district court’s denial of Petitioner’s Petition for

Writ of Habeas Corpus. As Petitioner has provided this Court only meritless arguments,

his Petition must be denied.

CONCLUSION

Petitioner fails to establish that the exercise of discretionary jurisdiction is

warranted. There is no important federal issue or conflict in authority presented and as

such, this Court should deny certiorari.

Respectfully submitted.

ANE. VANBOSKERCK*

Nevada Bar #006528

Chief Deputy District Attorney

Office of the District Attorney

Regional Justice Center

200 Lewis Avenue

Las Vegas, Nevada 89155-2212

(702) 671-2500

Counsel of Record*

Counsel for Respondent

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1: APPELLATE WPDOCS SECRETARY US S.CT SMITH, JOSEPH WELDON, 19-8090. STS OPP. TO CERT. PET..DOCK