Opposition Brief — John Bejarano, Petitioner v. William Gittere, Warden, et al.

No. 19-8192

____________________

IN THE SUPREME COURT OF THE UNITED STATES

May 6, 2020

____________________

JOHN BEJARANO, Petitioner,

v.

WILLIAM GITTERE, Warden, Respondent.

____________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEVADA

____________________

RESPONDENT’S BRIEF IN OPPOSITION

_______________________________

CAPITAL CASE

BRAD D. LEVENSON

DAVID ANTHONY

Assistant Federal Public Defenders

411 East Bonneville Ave., Suite 250

Las Vegas, Nevada 89101

(702) 388-6577

JENNIFER P. NOBLE

Chief Deputy District Attorney

Nevada Bar #9446

Washoe County District Attorney

One South Sierra Street

Reno, Nevada 89501

(775) 337-5755

Counsel for Petitioner

Counsel for Respondent

QUESTION PRESENTED

CAPITAL CASE

In Nevada, death eligibility attaches once the prosecution proves the

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

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

(2015); Castillo v. State, 135 Nev. Adv. Op. 16, 442 P.3d 558 (2019). Death

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

mitigating circumstances do not outweigh aggravating circumstances, and no such

requirement exists in Nevada. Id.

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

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

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

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

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

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

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

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

Adv. Op. 53, 423 P.3d 1084, 1095 (2018). Bejarano filed his fourth petition for writ

of habeas corpus more almost 30 years after his conviction.

The Nevada Supreme Court found that the decision in Hurst v. Florida, 577

U.S. __, 136 S. Ct. 616 (2016) did not announce new law relevant to the weighing

component of Nevada’s death penalty procedures, and therefore, did not constitute

i

good cause to excuse Nevada’s procedural bars for untimeliness and successiveness.

Appendix A, 1-2.

1. Should this Court rule contrary to its holding in McKinney v. Arizona, __

U.S. __, 140 S. Ct. 702 (2020), and hold that Clemons v. Mississippi, 494

U.S. 738 (1990) is no longer good law?

2. Did the Nevada Supreme Court err in finding that because Hurst did not

create new law applicable to Nevada, there was no good cause to excuse

Nevada statutory procedural bars applicable to Bejarano’s successive and

untimely petition for writ of habeas corpus?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ..........................................................................................i-ii

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

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

REASONS FOR DENYING THE PETITION .............................................................. 3

A. This Court Should Decline Bejarano’s Invitation to

Abrogate McKinney v. State and Overrule Clemons v.

Mississippi. .......................................................................................................... 3

B. The Nevada Supreme Court’s Decision Was Based On An

Application of State Law Unaffected By Hurst. ................................................ 6

1. Hurst Did Not Change Capital Sentencing in Nevada. ...................... 6

2. Because Hurst Did Not Create A New, Previously

Unavailable Legal Claim, the Nevada Supreme Court’s

Application of State Statutory Procedural Bars Was

Proper...................................................................................................... 10

CONCLUSION............................................................................................................. 12

iii

TABLE OF AUTHORITIES

Page Number:

Cases

Andres v. United States,

333 U.S. 740 (1948) ........................................................................................................ 4

Apprendi v. New Jersey,

530 U.S. 466 (2000) ................................................................................... 3 - 5, 9, 10, 12

Bejarano v. State,

106 Nev. 840, 801 P.2d 1388 (1990) .......................................................................... 1, 3

Bejarano v. State,

106 Nev. 851, 809 P.2d 598 (1988) ................................................................................ 1

Bejarano v. State,

122 Nev. 1066, 146 P.3d 265 (2006) ......................................................................... 1 - 3

Bejarano v. Warden,

112 Nev. 1466, 929 P.2d 922 (1996) .............................................................................. 1

Buchanan v. Angelone,

522 U.S. 269, 275, 118 S. Ct. 757 (1998) ....................................................................... 7

Burnside v. State,

352 P.3d 627, 646, 131 Nev. Adv. Op. 40 (2015)........................................................... 9

Castillo v. State,

135 Nev. Adv. Op. 16, __P.3d __ (2019) ..................................................................... i, 6

Clemons v. Mississippi,

494 U.S. 738 (1990) ............................................................................................... ii, 3 - 5

Eddings v. Oklahoma,

455 U.S. 104, 102 S. Ct. 869 (1982)............................................................................... 4

Hurst v. Florida,

577 U.S. __, 136 S. Ct. 616 (2016) ............................................i - ii, 1, 2, 4 - 6, 9, 10, 12

Jeremias v. State,

412 P.3d 43, 134 Nev. __ (2018) .................................................................................... 7

Johnson v. State,

118 Nev. 787, 802, 59 P.3d 450, 460 (2002) .................................................................. 6

iv

Kansas v. Carr,

__ U.S. __ , 136 S. Ct. 633, 642, (2016)...................................................................... 5, 8

Lisle v. State,

131 Nev. 356, 365-366, 351 P.3d 725, 732 (2015) .................................................. i, 6, 7

McConnell v. State,

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

McConnell v. State,

125 Nev. 243, 212 P.3d 307 (2009) ................................................................................ 6

McKinney v. Arizona,

__ U.S. __, 140 S. Ct. 702 (2020) .......................................................................... ii, 2 - 5

Middleton v. State,

114 Nev. 1089, 1117, 968 P.2d 296 (1998), cert denied, 538 U.S. 927, 120 S. Ct. 322

(1999) .............................................................................................................................. 8

Mullaney v Wilbur,

421 U.S. 684 (1975) ........................................................................................................ 4

Nunnery v. State,

127 Nev. 739, 263 P.3d 235 (2011) ............................................................................ 6, 9

Ring v. Arizona,

536 U.S. 584, 122 S.Ct. 2428 (2002)......................................................... 4 - 6, 9, 10, 12

Rippo v. State,

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

Sawyer v. Whitley,

505 U.S. 333, 112 S.Ct. 2514 (1992)........................................................................... 7-8

State v. Haberstroh,

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

Constitutional Provisions

U.S. Const. amend. XIV ............................................................................................... 10

U.S. Const. amend. VI ............................................................................................. 3, 10

State Statutes

NRS 34.726(1) ........................................................................................................... i, 11

NRS 34.810 .................................................................................................................. 11

v

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

Rules

United States Supreme Court Rule 10 ....................................................................... 10

vi

No. 19-8192

____________________

IN THE SUPREME COURT OF THE UNITED STATES

May 6, 2020

____________________

JOHN BEJARANO, Petitioner,

v.

WILLIAM GITTERE, Warden, Respondent.

____________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEVADA

____________________

RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Since his conviction in 1988, Bejarano’s case has been the subject of extensive

appellate and post-conviction litigation. His direct appeal was denied by the

Nevada Supreme Court. Bejarano v. State, 106 Nev. 851, 809 P.2d 598 (1988). His

subsequent three attempts to obtain post-conviction relief via petition for writ of

habeas corpus were unsuccessful. Bejarano v. State, 106 Nev. 840, 801 P.2d 1388

(1990); Bejarano v. Warden, 112 Nev. 1466, 929 P.2d 922 (1996); Bejarano v. State,

122 Nev. 1066, 146 P.3d 265 (2006). In 2017, Bejarano filed his fourth postconviction petition for writ of habeas corpus. The district court dismissed it as

untimely. On appeal, the Nevada Supreme Court rejected Bejarano’s claim that

this Court’s decision in Hurst v. Florida, 577 U.S. __, 136 S. Ct. 616 (2016)

established good cause to excuse procedural bars preventing Bejarano from re-

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raising his untimely, successive, and abusive petition. It rejected Bejarano’s claim

that Hurst created new law for Nevada. It rejected Bejarano’s argument Hurst

mandates a jury find that the aggravating facts outweighed any mitigating factors

beyond a reasonable doubt, and prohibits appellate reweighing of jury-found

aggravating and mitigating circumstances.

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

Supreme Court’s order affirming the district court’s denial of his fourth, untimely,

abusive and successive post-conviction habeas corpus petition. Bejarano recognizes

this Court’s very recent decision in McKinney v. Arizona, __ U.S. __, 140 S. Ct. 702

(2020) reiterated that appellate courts may properly reweigh capital sentences

when an aggravator is invalidated. In attempt to avoid the implications of the

recent McKinney holding, he attempts to distinguish its application to Nevada.

Petition, p. 3.

A. Facts of the Case

In Bejarano v. State, 122 Nev. 1066, 146 P.3d 265 (2006), the Nevada

Supreme Court provided a succinct recitation of the facts of this case:

On March 2, 1987, Reno taxicab driver Roland Wright was found

dead, shot twice in the head at point-blank range with a sawed-off rifle

and robbed of about $100 to $250. Bejarano was later arrested and

charged with the following crimes: murder with the use of a deadly

weapon, robbery with the use of a deadly weapon, being an ex-felon in

possession of a firearm, possession and disposition of a sawed-off rifle,

possession of a stolen motor vehicle, and carrying a concealed weapon.

The murder count charged in pertinent part that Bejarano “did

willfully, unlawfully, and with malice aforethought, deliberation, and

premeditation, and during the course and commission of a robbery, kill

and murder [Wright].”

2

Bejarano v. State, 122 Nev. 1066, 1070-1071 (2006).

In his first State court habeas petition, Bejarano argued that four of the six

aggravating circumstances—committing the crime while under a sentence of

imprisonment, avoiding a lawful arrest, robbery, and receiving money—were

inapplicable as a matter of law or were not proved as a matter of fact. The habeas

judge rejected the claim, and the Nevada Supreme Court affirmed, citing the law of

the case. Bejarano v. State, 106 Nev. 840, 841, 801 P.2d 1388 (1990).

Later, the Nevada Supreme Court’s holding in McConnell v. State, 120 Nev.

1043, 102 P.3d 606 (2004) prohibited the use of aggravating circumstances that

also serve as a predicate for felony murder. In Bejarano v. State, 122 Nev. 1066,

supra, the Nevada Supreme Court invalidated two aggravators based on McConnell.

It performed a reweighing analysis, and concluded that the absent the invalid

aggravators, the jury would still have found Bejarano death eligible.

REASONS FOR DENYING THE PETITION

A. This Court Should Decline Bejarano’s Invitation to Abrogate

McKinney v. State and Overrule Clemons v. Mississippi.

Bejarano urges this Court to overrule Clemons v. Mississippi, 494 U.S. 738

(1990) as inconsistent with Apprendi v. New Jersey, 530 U.S. 466 (2000) and its

progeny. He argues that Clemons violates the Sixth Amendment right to a jury

trial. This Court should decline the invitation to do so. This Court should also reject

Bejarano’s argument that this Court’s recent decision in McKinney v. Arizona, __

U.S. __, 140 S. Ct. 702 (2020) should be abrogated to the extent it recognizes

Clemons as good law.

3

To support his argument that Clemons should be overruled, in his petition for

writ of certiorari, Bejarano cites Mullaney v Wilbur, 421 U.S. 684 (1975) and Andres

v. United States, 333 U.S. 740 (1948). He argues that “[w]hen considered together,

Andres and Mullaney establish that the burden remains on the State to prove each

element of a capital offense beyond a reasonable doubt; the burden cannot be on the

jury to qualify or undo a finding of death eligibility.” Petition, 23. Although

Bejarano briefly cited Mullaney in the proceedings below, he never gave the Nevada

Supreme Court an opportunity to consider the implications of Andres, supra in

conjunction with Mullaney, supra. Indeed, Bejarano never even cited to Andres.

The Nevada Supreme Court never had the opportunity to accept or reject this

portion of his argument.

Bejarano recognizes that this Court has had many opportunities to abrogate

Clemons. In McKinney supra, this Court relied on Clemons and regarded it as valid

precedent. It held that a Clemons reweighing is permissible to address error

pursuant to Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869 (1982). Clemons

was integral to the Court’s analysis, and this Court expressly rejected the notion

that Clemons was no longer good law after Ring v. Arizona, 536 U.S. 584, 122 S.Ct.

2428 (2002) and Hurst v. Florida, 577 US. __, 136 S. Ct. 616 (2016).

In McKinney, supra, this Court explained that Ring had nothing to do with

jury sentencing, but instead merely established that the jury must find that an

aggravating factor existed:

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000), this Court carefully avoided any suggestion that “it

4

is impermissible for judges to exercise discretion—taking into

consideration various factors relating both to offense and offender—in

imposing a judgment within the range prescribed by statute.” Id., at

481, 120 S.Ct. 2348. And in the death penalty context, as Justice

Scalia, joined by Justice THOMAS, explained in his concurrence in

Ring, the decision in Ring “has nothing to do with jury sentencing.

What today's decision says is that the jury must find the existence of

the fact that an aggravating factor existed.” 536 U.S. at 612, 122 S.Ct.

2428; see also Kansas v. Carr, 577 U.S. ––––,136 S.Ct. 633, 193

L.Ed.2d 535 (2016) (slip op., at 9–11). Therefore, as Justice Scalia

explained, the “States that leave the ultimate life-or-death decision to

the judge may continue to do so.” Ring, 536 U.S. at 612, 122 S.Ct. 2428.

In short, Ring and Hurst did not require jury weighing of

aggravating and mitigating circumstances, and Ring and Hurst did not

overrule Clemons so as to prohibit appellate reweighing of aggravating

and mitigating circumstances.

McKinney, 122 S. Ct. 702 at 708.

This Court explained further that a Clemons reweighing is not a sentencing

proceeding, and that appellate reweighing is “akin to harmless error review.” Id. at

709. Bejarano attempts to distinguish his case from McKinney’s, arguing that

“importantly, Arizona does not have a three-step capital sentencing statute.”

Petition, 17. He claims that because Arizona trial judges decided the existence of

aggravating circumstances prior to Ring, McKinney is mere non-binding dicta for

Nevada. Id. Bejarano’s observations are perhaps distinctions, but they are not a

solid foundation on which to rest a meaningful and necessary difference. The Court

should decline Bejarano’s invitation to abrogate Clemons.

//

//

//

5

B. The Nevada Supreme Court’s Decision Was Based On An Application

of State Law Unaffected By Hurst.

1. Hurst Did Not Change Capital Sentencing in Nevada.

Within the second question presented lies a fundamental problem: Bejarano

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

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

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

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

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

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

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

McConnell v. State, 125 Nev. 243, 254, 212 P.3d 307, 314–15 (2009) (“[N]othing in

the plain language of [the relevant statutory] provisions requires a jury to find, or

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

outweighed the aggravating circumstances in order to impose the death penalty;”

Johnson v. State, 118 Nev. 787, 802, 59 P.3d 450, 460 (2002) (noting that the

weighing requirement is part of a factual determination that must be found by a

jury beyond a reasonable doubt in accordance with Ring v. Arizona, 536 U.S. 584,

122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)), overruled by Nunnery v. State, 127 Nev.

739, 263 P.3d 235 (2011). The Nevada Supreme Court has made clear that, “a

defendant is death-eligible once the State proves the elements of first-degree

murder and the existence of at least one statutory aggravating circumstance.”

Castillo v. State, 135 Nev. Adv. Op. 16, 442 P.3d 558 (2019) (citing Lisle v. State,

6

131 Nev. 356, 365-66, 351 P.3d 725, 732 (2015); Jeremias v. State, 412 P.3d 43, 134

Nev. __ (2018).

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

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

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

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

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

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

component of the capital sentencing process as the ‘eligibility’ phase and the

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

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

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

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

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

defendant.”) (citation omitted)).

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

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

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

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

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

death penalty.” Id. at 342.

7

The reasoning in Sawyer, supra, was recently reaffirmed by this Court in

Kansas v. Carr, __ U.S. __ , 136 S. Ct. 633, 642 (2016):

Approaching the question in the abstract, and without reference

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

to apply a standard of proof to the mitigating-factor determination (the

so-called “selection phase” of a capital-sentencing proceeding). It is

possible to do so for the aggravating-factor determination (the so-called

“eligibility phase”), because that is a purely factual determination.

The facts justifying death set forth in the Kansas statute either did or

did not exist—and one can require the finding that they did exist to be

made beyond a reasonable doubt. Whether mitigation exists, however,

is largely a judgment call (or perhaps a value call); what one juror

might consider mitigating another might not. And of course the

ultimate question whether mitigating circumstances outweigh

aggravating circumstances is mostly a question of mercy—the quality

of which, as we know, is not strained. It would mean nothing, we

think, to tell the jury that the defendants must deserve mercy beyond

a reasonable doubt; or must more-likely-than-not deserve it. It would

be possible, of course, to instruct the jury that the facts establishing

mitigating circumstances need only be proved by a preponderance,

leaving the judgment whether those facts are indeed mitigating, and

whether they outweigh the aggravators, to the jury's discretion without

a standard of proof. If we were to hold that the Constitution requires

the mitigating-factor determination to be divided into its factual

component and its judgmental component, and the former to be

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

produce anything but jury confusion. In the last analysis, jurors will

accord mercy if they deem it appropriate, and withhold mercy if they

do not, which is what our case law is designed to achieve.

Kansas v. Carr, __ U.S. __, 136 S. Ct. 633, 642 (2016).

The weighing of mitigators and aggravators is not a factual exercise that

exposes the defendant to a greater punishment than that authorized by the jury’s

guilty verdict. A defendant is eligible for a death sentence after a finding of guilt

and the existence of least one aggravator. Middleton v. State, 114 Nev. 1089, 1117,

968 P.2d 296 (1998), cert denied, 538 U.S. 927, 120 S. Ct. 322 (1999). Bejarano

8

argues that Nevada case law has, for the most part, held that death eligibility

includes the weighing of aggravators and mitigators. The Nevada Supreme Court,

however, has resolved the disparity in its case law against Bejarano.

In Nunnery v. State, 127 Nev. 749, 263 P.3d at 250–53 (2011), this Court

concluded that the weighing of aggravating and mitigating circumstances is not a

factual determination and thus it is not subject to the proof-beyond-a-reasonabledoubt standard as mandated by Apprendi and Ring. The weighing process is not a

factual one that must be found beyond a reasonable doubt, and, therefore, it is not

part of the eligibility process that must be determined by a jury. Burnside v. State,

352 P.3d 627, 646, 131 Nev. Adv. Op. 40 (2015), cited by Bejarano, does not support

his argument. There, the Court was confronted with the issue of whether the Court

could uphold Burnside's death sentence in the absence of the prior-violent-felony

aggravating circumstance. Id. at 650-51 (“We held in Nunnery v. State, ____ Nev.

___, 263 P.3d 235, 241, 250–53 (2011), that the weighing of aggravating and

mitigating circumstances ‘is not a factual finding that is susceptible to the beyonda-reasonable-doubt standard of proof’ and therefore is not subject to Apprendi and

Ring.”). The Burnside Court made clear that it could affirm the defendant’s death

sentence because he was death eligible because of the remaining aggravator, and

there were no mitigators to consider in the reweighing process.

Since the weighing of aggravators and mitigators is not, as Bejarano argues,

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

determination is not an element of a capital offense. Hurst, Apprendi, and Ring do

9

not apply to moral or non-factual determinations. The basic legal principle behind

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

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

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

determinations do not fall within the ambit of Hurst.

Bejarano suggested below that Hurst establishes that any determination,

regardless of whether it is factual, is due the full protections of the Sixth and

Fourteenth Amendments. But a fair reading of Hurst repels Bejarano’s assertion.

In Hurst, this Court explained, “The Sixth Amendment requires a jury, not a judge,

to find each fact necessary to impose a sentence of death.” Hurst, 136 S. Ct. at 619.

Because the Hurst Court applied Apprendi and Ring, which apply only to the

necessary factual components needed to impose death, Hurst, itself, rejects the idea

that it applies to moral and factual weighing of aggravator and mitigators.

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

Claim, the Nevada Supreme Court’s Application of State Statutory

Procedural Bars Was Proper.

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

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

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

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

Bejarano was not entitled to relief. United States Supreme Court Rule 10.

Bejarano is urging this Court to undertake an error-correcting function, and it

should decline to do so.

10

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

was untimely, having been filed well outside the statutory bar pursuant to NRS

34.726(1). That statute provides, in relevant part:

34.726 Limitations on time to file; stay of sentence

1. Unless there is good cause shown for delay, a petition that

challenges the validity of a judgment or sentence must be filed within

1 year after entry of the judgment of conviction or, if an appeal has

been taken from the judgment, within 1 year after the appellate court

of competent jurisdiction pursuant to the rules fixed by the Supreme

Court pursuant to Section 4 of Article 6 of the Nevada Constitution

issues its remittitur. For the purposes of this subsection, good cause

for delay exists if the petitioner demonstrates to the satisfaction of the

court:

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

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

petitioner.

The reviewing court further observed that because the petition raised claims

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

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

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

34.810. Additional reasons for dismissal of petition

2. A second or successive petition must be dismissed if the judge or

justice determines that it fails to allege new or different grounds for

relief and that the prior determination was on the merits or, if new and

different grounds are alleged, the judge or justice finds that the failure

of the petitioner to assert those grounds in a prior petition constituted

an abuse of the writ.

Here, Bejarano was convicted in 1988—nearly 30 years ago. The Nevada

Supreme Court affirmed his conviction and sentence in 1988, and he pursued

habeas relief in 1990, 1996, and 2003. Thus, his fourth petition is untimely,

11