Opposition Brief — James Montell Chappell, Petitioner v. Nevada

No. 22-5416

IN THE SUPREME COURT OF THE UNITED STATES

September 20, 2022

JAMES MONTELL CHAPPELL, Petitioner,

V,

THE STATE OF NEVADA, Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

*BRAD D. LEVENSON

SUPREME COURT OF THE STATE OF NEVADA

RESPONDENT?’S BRIEF IN OPPOSITION

Nevada Bar #013804

KATERINA CHADLIEV

Nevada Bar #14981C

BENJAMIN A. GERSON

Assistant Federal Public Defenders

411 E. Bonneville Ave., Ste. 250

Las Vegas, Nevada 89/01

Brad.Levenson@fd

(702) 388-6577

*Counsel of Record for Petitioner

org

* JONATHAN E. VANBOSKERCK

Chief Deputy District Attorney

Nevada Bar #006528

Office of the Clark County District Attorney

Regional Justice Center

200 Lewis Avenue

Post Office Box 552212

Las Vegas, Nevada 89155-2212

Jonathan. VanBoskerck@clarkcountyda.com

(702) 671-2500

*Counsel of Record for Respondent

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QUESTION PRESENTED

CAPITAL CASE

Whether Chappell’s challenge to the Nevada Supreme Court’s determination

that Chappell failed to overcome the statutory procedural bars to his habeas petition

presents an important federal question or a conflict between the courts that must be

addressed by this Court.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES 0... cecceecsssssesesnsevesssrerseessevssesssnsessaessesecteeserenenerses Ill

STATEMENT OF THE CASE... icceeccssseeseseeeesesesceneeesstvecseseseeenaeeenaageseeneueees ]

STATEMENT OF THE FACTS... cis cecccssecssecsesceeesseesseessaseseesenesenesenseesneeversesesaes 4

ARGUMENT 1... cc esecccessseseseesccessssscneeesesennersssaesessnenesessnseseneesrensseseeesseesenesessaceressass 5

I, CHAPPELL’S PETITION SHOULD NOT BE GRANTED BECAUSE IT

DOES NOT RAISE A FEDERAL QUESTION ue eeeeeeeeesseeeeenneeeees 5

I. THE NEVADA SUPREME COURT CORRECTLY FOUND

CHAPPELL FAILED TO DEMONSTRATE INEFFECTIVENESS OF

HIS SECOND POST-CONVICTION COUNSEL ...... cece ceeeeeeeetseeerees 13

CONCLUSION 7... eee ienceeseeseceneereeceseenecereessnescenesesssesenseesiseensacensesserseveeserageeanees 1S

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TABLE OF AUTHORITIES

Page Number:

Cases

Byram v. Ozmint,

339 F.3d 203, 211 (4th Cir, 2003)... ccesscceesseceessecececsesssecevssecevssseesessessersesenss 10

Chappell v. State,

114 Nev. 1403, 972 P.2d 838 (1998) ........esccescssstscsssreseessseenessesneeeesssaeseseees 1, 2, 3,4

Chappell v. State, Docket No.43493

(Order of Affirmance, April 7, 2006).........:ccescessssseseecssrseecssesensatesenseesscssuceesnsenes 2

Chappell v. State, Docket No. 49478

(Order of Affirmance, October 20, 2009) .........ceeecessssscsstsessessssessssesssseenstepseeensens 3

Chappell v. State, Docket No. 61967

(Order of Affirmance, June 18, 2015)... .cccecesseeessseeetecesssseessseesssseessseceseeesseeerses 3

Chappell v. State, Docket No. 77002

(Order Denying Rehearing, Mar. 24, 2022) oo... .eeceescsceessseeestesesseeesseeeesseseeseneenss 4

Chappell v. State, Docket No. 77002

(Order of Affirmance, Dec. 30, 2021).........ccesccessssccesssssecceesssecevsssereversneessenseevenes 4

Coleman v. Thompson,

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

Glenn v. Tate,

71 F.3d 1204, 1207 (6th Cir, 1995)... eecessccccssssesessseeeeesscseescsssecceseeeesesessccsssaees 10

Hooks v. Workman,

689 F.3d 1148, 1203 (LOth Cir, 2012)... ieecesscccceessssssseesscessssesecessecseeeesereas 10

Jefferson v. GDCP Warden,

941 F.3d 452, 478 (11th Cir, 2019)... eccescersecceesesessarseeeseestseeeeeseessauesecsenes 10

Lee v. Kemna,

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

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

349 USS. 70, 79, 75 S. Ct. 614, 620 (1955)... ceesssssecetscceeeeesseessssneessscesssecnnrenses 6

iil

1:\APPELLATE\WPDOCS\SECRETARYWS S.CT\CHAPPELL, JAMES MONTELL, 22-5416, ST’S OPP TO CERT. PET. DOCX

Rippo v. State,

134 Nev. 411, 420, 423 P.3d 1084, 1096 (2018) oo... eecccccessssseeceserrerecenseevevssees 7

Ross v. Moffit,

417 U.S. 600, 616-17, 94S. Ct. 2437, 2447 (1974)... eecssccesssscececessneevesssseesensece 5

Smith v. Phillips,

455 U.S. 209, 221, 102 S. Ct. 940, 948 (1982)... ceessscecccssseeeerceeceescseeseeness 6

Strickland v. Washington,

466 U.S. 668, 690, 104 S. Ct. 2052, 2066, (1984)... ceessscccscsseceecsessnvesseseserererss 9

Williams v. Stirling,

914 F.3d 302, 314 (4th Cir, 2019)... essccccnsccenseeseeccesseccsseesersaeeseetensveverseesase 10

Statutes

NRS 34.726 v.ccccceccccccccccscccsstsesescecsusestecececcausersececececeeseesseuuuvsusessssensessecceseeuvecenesnteseeess 7

NRS 34.726(1) ...ccccccccsscescessevevensneeeccesstssesesensecsssseeseaueeesaeersnaceessesseeeesssansnsageussasees 7,8

NRS 34.810 vc eeceesecccseccccsceccesceceseeerevsscccecesevevssssesteseceveseeeeuensesseseuseunsececensreeeseesenanens 7

NRS 34.810(1)(D)....cceceecssessssscsesneesesseeessssesstseeceueceuessseeecsueeessssesessssesseeeeeeesestessaeenets 7

NRS 34.8100] )(D)(2) ...ccccccecescesssssccseseeesesseessecessecssnsseaeceenesesaeeeseseeessnseeeeeessseernsenaes 7

NRS 34.810(2) ...ecceesscsscccccseccesseeeessnececseneccsanceseserseerseeesseeesseeecsurecsanesecsuaeeesesseessnesnas 7

NRS 34.8103) ...cecccsssssssccstssssteecessecssensecseneescnecesssevsnssesseseeeeenneecesecessaveveresesusssnessaes 8

Other Authorities

36 C.J.S. Federal Courts $295 (2012)... cesssssccsseccsscececsnsneeessnneeessseaeeeeesesesseessneees 5

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No, 22-5416

IN THE SUPREME COURT OF THE UNITED STATES

September 20, 2022

JAMES MONTELL CHAPPELL, Petitioner,

vy.

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

On December 31, 1996, Petitioner James Chappell (“Chappell”) was

convicted, pursuant to a jury verdict, of burglary, robbery with use of a deadly

weapon, and first-degree murder with the use of a deadly weapon. Chappell was

subsequently sentenced to serve a term of four to ten years in prison for burglary and

two consecutive terms of six to fifteen years for robbery with the use of a deadly

weapon. Chappell was sentenced to death for first-degree murder with the use of a

deadly weapon. On appeal, the Nevada Supreme Court affirmed Chappell’s

convictions and sentence of death. Chappell v. State, 114 Nev. 1403, 972 P.2d 838

(1998).

On October 19, 1999, Chappell filed his first proper person post-conviction

E\APPELLATE\WPDOCS\SECRETARYWS S.CT\CHAPPELL, JAMES MONTELL, 22-5416, ST'S OPP. TO CERT. PET. DOCX

petition for writ of habeas corpus. David Schieck was appointed as post-conviction

counsel, and Chappell, through counsel, filed a supplement to his petition on April

30, 2002. After an evidentiary hearing held on September 13, 2002, the district court

partially granted and partially denied the petition, vacated Chappell’s sentence of

death, and ordered a new penalty hearing. The district court found that counsel’s

failure to call mitigating witnesses likely impacted the jury’s decision. The district

court otherwise upheld Chappell’s conviction and denied his claims relating to the

guilt phase of his trial. On appeal, the Nevada Supreme Court affirmed the district

court’s decision. Chappell v. State, Docket No. 43493 (Order of Affirmance, April

7, 2006).

The second penalty hearing began on March 12, 2007. As an aggravating

factor, the State alleged that the murder was committed during a sexual assault, and

the jury agreed. The jury found seven mitigating factors:

1) Chappell suffered from substance abuse;

2) Chappell had no father figure in his life;

3) Chappell was raised in an abusive household;

4) Chappell was physically abused as a child;

5) Chappell’s mother was addicted to drugs and alcohol;

6) Chappell had a learning disability; and

7) Chappell was raised in a depressed housing area.

The jury determined that these seven mitigators did not outweigh the

aggravating circumstance, and sentenced Chappell to death. The district court

entered the Judgment of Conviction on May 10, 2007. On appeal, the Nevada

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Supreme Court once again affirmed the sentence of death. Chappell v. State, Docket

No. 49478 (Order of Affirmance, October 20, 2009). After Chappell unsuccessfully

sought both rehearing and certiorari, remittitur issued on June 8, 2010.

On June 22, 2010, Chappeil filed his second proper person post-conviction

petition for writ of habeas corpus. The district court appointed Christopher R. Oram,

Esquire, as post-conviction counsel, and Chappell, through counsel, filed a

supplemental brief in support of his second petition on February 15, 2012. The

district court denied the petition in a Findings of Fact, Conclusions of Law and Order

filed on November 16, 2012. The Nevada Supreme Court affirmed the district

court’s decision. Chappell v. State, Docket No. 61967 (Order of Affirmance, June

18, 2015).

Chappell next proceeded to federal court where he filed a federal habeas

petition on March 23, 2016, and the U.S. District Court appointed the Federal Public

Defender. On November 1, 2016, Chappell sought and obtained a federal order

staying the federal proceedings to allow exhaustion of claims in state court. Chappell

then filed a third habeas petition in state court on November 16, 2016; the State

responded on April 5, 2017. Chappell filed a reply to the State’s response on July 5,

2017.

On April 6, 2018, the district court held an evidentiary hearing. Following the

evidentiary hearing, Chappell filed a post-hearing brief on April 27, 2018. The State,

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in turn, filed a post-hearing brief on May 4, 2018. Chappell replied on May 11, 2018.

On May 21, 2018, the district court denied the petition. The district court entered its

Findings of Fact, Conclusions of Law and Order on August 8, 2018.

Chappell filed his Notice of Appeal on September 14, 2018. The Nevada

Supreme Court affirmed the district court’s denial of the petition. Petitioner’s

Appendix A; Chappell v. State, Docket No. 77002 (Order of Affirmance, Dec. 30,

2021). The Nevada Supreme Court also denied Chappell’s Petition for Rehearing.

Petitioner’s Appendix B; Chappell v. State, Docket No. 77002 (Order Denying

Rehearing, Mar. 24, 2022). On August 18, 2022, Chappell filed a petition for writ of

certiorari with this Court.

STATEMENT OF THE FACTS

The Nevada Supreme Court’s opinion issued on direct appeal sets forth the

facts of this matter:

On the morning of August 31, 1995, James Montell Chappell was

mistakenly released from prison in Las Vegas where he had been

serving time since June 1995 for domestic battery. Upon his release,

Chappell went to the Ballerina Mobile Home Park in Las Vegas where

his ex-girlfriend, Deborah Panos, lived with their three children.

Chappell entered Panos' trailer by climbing through the window. Panos

was home alone, and she and Chappell engaged in sexual intercourse.

Sometime later that morning, Chappell repeatedly stabbed Panos with

a kitchen knife, killing her. Chappell then left the trailer park in Panos'

car and drove to a nearby housing complex.

Chappell v. State, 114 Nev. 1403, 1405, 972 P.2d 838, 839 (1998).

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ARGUMENT

I. CHAPPELL’S PETITION SHOULD NOT BE GRANTED

BECAUSE IT DOES NOT RAISE A FEDERAL QUESTION

Chappell’s request for extraordinary relief does not present an actual conflict

among inferior courts or an important federal question. This Court’s purpose is not

to seek out opportunities to consider constitutional issues, but to address those

problems that truly require resolution.

Rule 10 of the Rules of the Supreme Court of the United States precludes

discretionary intervention in this matter. Certiorari is only warranted where there is

a substantial conflict between decisions of lower state 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). “This Court’s review ... is discretionary and

depends on numerous factors other than the perceived correctness of the judgment

we are asked to review.” Ross v. Moffit, 417 U.S. 600, 616-17, 94 S. Ct. 2437, 2447

(1974),

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.”

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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).

a. The State procedural bars constitute an adequate and independent

state law ground precluding relief

Chappell ignores the fact that in affirming the lower court’s denial of his

request for post-conviction relief, the Nevada Supreme Court applied mandatory

Nevada statutes concerning procedural bars to such decisions. Chappell inaccurately

characterizes the Nevada Supreme Court’s decision as simply a decision as to

whether counsel was ineffective for not presenting evidence concerning Chappell’s

Fetal Alcohol Spectrum Disorder (““FASD”) as mitigation at the penalty hearing. But

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Chappell ignores the fact that this claim itself is procedurally defaulted under

Nevada statutes NRS 34.726 and NRS 34.810, and the Nevada Supreme Court

concluded that Chappell failed to demonstrate the statutorily required good cause

and prejudice necessary to overcome these procedural bars. Chappell, 137 Nev. at

__, 501 P.3d at 945.

Chappell’s petition for postconviction relief was untimely pursuant to NRS

34,726, as well as successive and an abuse of the writ pursuant to NRS 34.810(2).

Several of his claims were waived because they could have been raised in the direct

appeal of his conviction, or in prior post-conviction proceedings. NRS

34.810(1)(b)(2). Nevada statutes require petitioners to demonstrate good cause and

prejudice. NRS 34.726(1); NRS 34.810(1)(b). In an attempt to overcome these

procedural bars, Chappell alleged ineffective assistance of both first and second

post-conviction counsel.

The Nevada Supreme Court, considering the aforementioned statutes and

relevant case law, that Chappell failed to raise his ineffectiveness claims concerning

first post-conviction counsel in a timely manner, and therefore such claims could not

constitute good cause. 137 Nev. at __, 501 P.3d at 947-48. See also Rippo v. State,

134 Nev. 411, 420, 423 P.3d 1084, 1096 (2018) (finding that a good cause claim

based upon ineffective assistance of post-conviction counsel must be raised within

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one year of “the conclusion of the postconviction proceedings in which the

ineffective assistance allegedly occurred.”).

The Nevada Supreme Court found that Chappell did timely raise his

ineffectiveness claims concerning second post-conviction counsel, but ultimately

concluded these claims lacked merit and thus did not constitute good cause to

overcome the procedural bars to his petition. 137 Nev. at __, 501 P.3d at 949-51.

Furthermore, the Nevada Supreme Court found that Chappell failed to plead this

good cause claim with the specificity required under NRS Chapter 34 and

accompanying case law. Id. at _, 501 P.3d at 949. See also NRS 34.735; NRS

34.726(1); NRS 34.8103).

Given that the Nevada Supreme Court’s decision rested on Chappell’s failure

to overcome the procedural bars set forth in Nevada’s statutes, certiorari should be

denied in this case. “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, 1118S. Ct. 2546, 2553-54 (1991). This rule applies whether the state law ground

is substantive or procedural. Id.

///

///

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b. Chappell fails to establish a conflict among the lower courts

In a failed attempt to support his claim that the Nevada Supreme Court’s

decision conflicted with circuit court decisions, Chappell cites four irrelevant

decisions. None are directly on point here, as all of these cases involve

determinations that trial counsel was ineffective for not presenting sufficient

evidence in mitigation. Here, the Nevada Supreme Court considered a different

question: whether or not second post-conviction counsel was ineffective for not

sufficiently arguing that prior counsel was ineffective for not presenting sufficient

FASD evidence in mitigation. Chappell, 137 Nev. at__, 501 P.3d at 951 (“Chappell

has not demonstrated that he would have been granted relief had second

postconviction counsel handled the FASD claim differently.”).

Furthermore, there is no conflict because the Nevada Supreme Court did not

conclude that not presenting mitigating information regarding FASD during the

penalty phase could never be ineffective. The Nevada Supreme Court’s conclusion

was based on an analysis of the facts as they exist in his unique case. This is precisely

the sort of inquiry this Court requires. Strickland v. Washington, 466 U.S. 668, 690,

104 8S. Ct. 2052, 2066, (1984) (“a court deciding an actual ineffectiveness claim must

judge the reasonableness of counsel's challenged conduct on the facts of the

particular case, viewed as of the time of counsel's conduct.”) (emphasis added).

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Given that an ineffectiveness inquiry depends greatly on the particular

circumstances of an individual case, it is hardly surprising that in some cases

ineffectiveness will be found due to failure to present FASD evidence in mitigation,

and in other cases it will not. In fact, in one of the cases Chappell cites, the Court

acknowledges a previous case in which the Court found failure to present FASD

evidence in mitigation was not constitutionally deficient. Williams v. Stirling, 914

F.3d 302, 314 (4th Cir. 2019) (citing Byram v. Ozmint, 339 F.3d 203, 211 (4th Cir.

2003).

In none of the circuit cases cited by Chappell, did the Court find the failure to

present FASD evidence in mitigation automatically amounts to deficient

performance. See Jefferson v. GDCP Warden, 941 F.3d 452, 478 (11th Cir. 2019)

(finding deficient performance due to counsel ignoring a_psychologist’s

recommendation to obtain further neuropsychological evaluation of the defendant

and presenting a “half-hearted mitigation case”); Hooks v. Workman, 689 F.3d

1148, 1203 (10th Cir. 2012) (finding deficient performance based upon counsel

offering little evidence in mitigation and failing to rebut the prosecution’s evidence

of aggravation, though such evidence was available); Stirling, 914 F.3d at 315

(finding deficient performance based upon failure to conduct further investigation

based on FASD indicators counsel discovered in the case); Glenn v. Tate, 71 F.3d

1204, 1207 (6th Cir. 1995) (finding deficient performance based on counsel

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presenting virtually no evidence in mitigation at sentencing, despite such evidence

being available). Of these cases, Stirling is the only case that even addresses FASD

evidence.

The Nevada Supreme Court’s decision does not conflict with any of the above

cases, as the Court did not conclude that a failure to present FASD evidence in

mitigation could never constitute deficient performance. Rather, the Court found,

based on this case’s specific facts, that Chappell did not demonstrate second postconviction counsel was ineffective for not adequately supporting his argument that

penalty counsel should have presented FASD evidence in mitigation. 137 Nev. at

__, 501 P.3d at 950-51. The Court noted that second postconviction counsel did in

fact request postconviction relief based on penalty counsel’s failure to present such

evidence, and requested funding for a FASD expert and a PET scan. Id.; 501 P.3d at

951. The Court noted second postconviction counsel made a strategic decision to

focus more on his claim challenging the death aggravator, as success on this claim

would render Chappell ineligible for the death penalty. Id.

The Court also considered Chappell’s claim that the presentation of FASD

evidence would have resulted in a more favorable result at the penalty hearing. Id.

The Court examined the evidence presented at the penalty hearing, and concluded

such information was unlikely to alter the jury’s penalty decision, considering the

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substantial mitigation evidence the jury received, and still concluded it was

outweighed by the aggravating circumstance:

the omitted information merely supplements what the jury heard during

the penalty phase retrial: that Chappell suffered from substance abuse,

was born to a mother addicted to drugs and alcohol, and suffered a

learning disability. One expert explained during the penalty phase

retrial that Chappell had less free will than the average person. That

same expert noted Chappell's placement in special-education classes as

early as second grade, his lack of early success in school, his behaviors

that were atypical of a second grader, and his classification “as severely

learning disabled” in fourth grade. Additionally, the expert explained

that those with a low verbal IQ, such as Chappell, were overrepresented

in the prison population because they have trouble problem solving and

making good decisions. Lastly, the expert testified that Chappell's low

verbal IQ, difficult childhood, constant drug use, and diagnosed

personality disorder(s) negatively affected his free will. Thus, the jury

heard evidence that Chappell had cognitive deficits and that those

deficits, along with Chappell's upbringing, resulted in diminished free

will and difficulty with decision-making. Information regarding FASD

may have explained the cause of Chappell's cognitive deficits, but we

are not convinced that the cause of those deficits would have been more

compelling than the deficits themselves.

The Nevada Supreme Court denied Chappell’s claim because it

concluded that FASD evidence was unlikely to change the result, given the

information already presented during the penalty phase. This decision does

not reflect a conflict among lower courts; it simply a factual analysis with

which Chappell disagrees. He is attempting to manufacture a conflict because

he wishes for this Court to correct what he perceives as an error. Accordingly,

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this Court should deny Chappell’s invitation to resolve a conflict that does not

exist.

TW. THE NEVADA SUPREME COURT CORRECTLY FOUND

CHAPPELL FAILED TO DEMONSTRATE INEFFECTIVENESS

OF HIS SECOND POST-CONVICTION COUNSEL ,

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

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

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

meritless.

The Nevada Supreme Court properly recognized that the presentation of

information regarding FASD at the penalty hearing would have provided the jury

with additional information as to the cause of Chappell’s deficits, but Chappell had

failed to establish that presentation of such information would have likely changed

the jury’s decision at the second penalty hearing. The jury found seven mitigating

factors, including that Chappell’s mother was addicted to drugs and alcohol and that

he had a learning disability. Chappell provides no compelling basis for his

contention that presenting FASD as the cause of Chappell’s substance abuse and

cognitive deficits would have caused the jury to determine that these seven

mitigating factors outweighed the aggravating circumstance.

Importantly, Chappell fails to address that the Nevada Supreme Court denied

this claim due to Chappell’s failure to demonstrate both that penalty phase counsel

was ineffective for failing to present FASD-related information and that second

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postconviction counsel was ineffective for failing to present the claim that first

postconviction counsel was ineffective on this basis. 137 Nev. at _, 501 P.3d at

950-51. See also Rippo, 134 Nev. at 424, 423 P.3d at 1098. In other words, the

Nevada Supreme Court did not directly consider whether or not Petitioner’s penalty

counsel was ineffective for not investigating and presenting FASD-related evidence.

This claim was procedurally barred, and consequently could not be considered in the

absence of good cause and prejudice.

As good cause for raising this procedurally barred claim, Chappell alleged

second postconviction counsel was ineffective for failing to sufficiently support this

claim. Considering that second postconviction counsel did in fact argue that first

postconviction counsel was ineffective for failing to investigate FASD-related

evidence, the Nevada Supreme Court reasonably found that second postconviction

counsel was not ineffective.

In his Petition, Chappell ignores the fact that second postconviction counsel

did in fact raise the very claim he presents to this Court—that penalty phase counsel

was ineffective for not presenting mitigating evidence related to Second

postconviction counsel requested additional funding for a PET scan and an

investigator for the purpose of investigating FASD evidence, and these requests were

denied by the court. The Nevada Supreme Court noted that during the penalty phase,

the jury received detailed information regarding Chappell’s life history—that his

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mother was addicted to drugs and alcohol throughout her pregnancy with Chappell

and after his birth, and that Chappell suffered from a severe learning disability. 130

Nev. at __, 501 P.3d at 951. The Court reasonably concluded that “[i]nformation

regarding FASD may have explained the cause of Chappell's cognitive deficits, but

we are not convinced that the cause of those deficits would have been more

compelling than the deficits themselves.” Id. In light of this failure to establish

FASD evidence would have had a favorable impact at sentencing, the Court properly

concluded that Chappell failed to demonstrate that he would have obtained

postconviction relief “had second postconviction counsel handled the FASD claim

differently.” Id.

The Nevada Supreme Court properly found that Chappell failed to present a

valid claim of ineffectiveness of second post-conviction counsel to excuse the

procedural bars to his post-conviction claims. As Chappell has provided this Court

with only meritless arguments, his Petition must be denied.

CONCLUSION

Chappell has failed to establish that this Court’s exercise of discretionary

jurisdiction is warranted. No important federal issue or conflict in authority exists in

this matter. Therefore, this Court should deny certiorari.

///

///

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Dated this 20th day of September, 2022,

Respectfully submitted.

Z RATHAN E, VANBOSKERCK*

Chief Deputy District Attorney

Nevada Bar #006528 ——

Office of the Clark County District Attorney

Regional Justice Center

200 Lewis Avenue

Post Office Box 552212

Las Vegas, Nevada 89155-2212

702) 671-2500

ounsel of Record*

Counsel for Respondent

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