Petition for Writ of Certiorari — Donte Johnson, Petitioner v. Nevada

No. _______

In the

Supreme Court of the United States

Donte Johnson.

Petitioner,

v.

The State of Nevada,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of the State of Nevada

Appendix

CAPITAL CASE

Rene Valladares

Federal Public Defender, District of Nevada

Randolph M. Fiedler

Counsel of Record

Benjamin Gerson

Assistant Federal Public Defenders

411 E. Bonneville Ave., Ste. 250

Las Vegas, NV 89101

(702) 388-6577

(702) 388-5819 (fax)

Counsel for Petitioner

APPENDICES

Appendix A

Appendix B

Order of Affirmance, Johnson v. State, Supreme

Court of the State of Nevada, Case No. 83796

(June 29, 2023)

………………………………………………….….

App. 001 – 027

Order Denying Rehearing, Johnson v. State,

Supreme Court of the State of Nevada, Case No.

83796 (September 26, 2023)

…………………………………………………….….

App.028 – 031

2

APPENDIX A

Order of Affirmance, Johnson v. State, Supreme

Court of the State of Nevada, Case No. 83796

(June 29, 2023)

APP.001

IN THE SUPREME COURT OF THE STATE OF NEVADA

No. 83796

DONTE JOHNSON,

Appellant,

vs.

FILED

THE STATE OF NEVADA,

Respondent.

ORDER OFAFFIRMANCE

This is an appeal from a district court order denying a

postconviction petition for a writ of habeas corpus. 1 Eighth Judicial District

Court, Clark County; Jacqueline M. Bluth, Judge.

Appellant Donte Johnson was convicted for the robbery,

kidnapping, and murder of four men . After finding Johnson guilty of four

counts of first-degree murder with the use of a deadly weapon and

associated offenses, the jury could not agree on tbe sentence for the

murders. The case went to a three-judge panel, which sentenced Johnson

to death for each murder.

On direct appeal, this cou.Tt upheld the

convictions, vacated the death sentences, and remanded for a new penalty

hearing. Johnson v. State (Johnson 1), 1.1.8 Nev. 787, 59 P.3d 450 (2002) .

On remand in 2005, a jury sentenced Johnson to death for each murder at

a penalty phase retrial. This court upheld the death sentences on appeal.

Johnson v. State (Johnson II) , 122 Nev. 1344, 148 P.3d 767 (2006). Johnson

filed a timely postconviction petition for a writ of habeas corpus, and the

district court denied the petition after an evidentiary hearing. This court

1The Honorable Elissa F. Cadish. Jus tice , did not participate in the

decision of this 1uatter.

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APP.002

affirmed. Johnson u. St.ate (Johnson III), 133 Nev. 571, 402 P.3d 1266

(2017). While the appeal from the denial of that postconviction petition was

pending, Johnson filed a prose petition that alleged actual innocence based

on a codefendant's declaration that he lied to the police about Johnson's

culpability. The district court denied the second petition and this court

affirmed. Johnson v. State (Johnson IV), No. 67492, 2018 WL 915534 (Nev.

Feb. 9, 2018) (Order of Affirmance). Johnson then filed the instant petition

(his third) raising collateral challenges to the convictions obtained during

the first trial and the death sentences imposed in the 2005 penalty hearing.

The district court denied the petition without conducting an evidentiary

hearing. We affirm.

Johnson filed his petition in February 2019, over 11 years after

the remittitur issued on his direct appeal following the 2005 penalty

hearing retrial. The petition therefore was untimely under NRS 34.726(1).

The petition was also successive because some of the claims he raised had

been litigated on the merits in the first postconviction proceeding, and some

of the claims constituted an abuse of the writ, NRS 34.810(2), or were

waived because he raised new and different claims that could have been

litigated in prior proceedings, NRS 34.810(1)(6).

Petitions that are

untimely, successive, or constitute an abuse of the writ are subject to

dismissal absent a showing of good cause and prejudice. NRS 34.726(1);

NRS 34.8 10(1)(6), (3). Because the petition was filed over five years after

issuance of the remittitur from his direct appeal, NRS 34.800(2) imposes a

re6utta6le presumption of prejudice to the State.

See NRS 34.800(1)

(identifying two types of prejudice to the State). Thus, NRS 34.800 may bar

the petition even if Johnson could show good cause and actual prejudice to

satisfy NRS 34. 726 and NRS 34.810. In addition, some of the claims raised

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APP.003

1n the petition have been resolved in pnor appellate proceedings and

therefore further consideration of them is barred by the doctrine of the law

of the case. Ilall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). 2

Ineffective assistance of postconviction counsel

Johnson contends that he can demonstrate good cause and

prejudice to overcome the procedural bars because of ineffective assistance

of first postconviction counsel. 3

Ineffective assistance of postconviction

counsel can be good cause for an untimely and successive petition when, as

here, postconviction counsel was appointed as a matter of right. See Crump

v. Warden, 113 Nev. 293, 303-05 & n.5, 934 P.2d 247, 253-54 & n.5 (1997).

This court applies "the Strickland[] standard to evaluate postconviction

counsel's performance where there is a statutory right to effective

assistance of that counsel." Rippo v. State, 134 Nev. 411, 423, 423 P.3d

1084, 1098 (2018).

To demonstrate ineffective assistance of counsel, a

petitioner must show both deficient performance by counsel and resulting

2 Under the

law-of-the-case doctrine, this "court may revisit a prior

ruling when (1) subsequent proceedings produce substantially new or

different evidence, (2) there has been an intervening change in controlling

law, or (3) the prior decision was clearly erroneous and would result in

manifest injustice if enforced." Hsu u. Cly of Clarh, 123 Nev. 625, 630, 173

P .3d 724, 728-29 (2007) (quotation marks omitted).

3The

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State argues that Johnson should have litigated his

postconviction counsel claims in his pro se second postconviction petition.

But Johnson filed his second petition on October 8, 20 14., during the

pendency of his first postconviction appeal. Thus, claims of good cause

based on first postconviction counsel's ineffectiveness were not available

when Johnson filed his second petition. S ee Chappell v. State, 137 Nev. 780,

783, 501 P .3d 935, 946 (2021) (explaining that "the postconviction-counsel

claim must be raised within one year after entry of a final written decision

by the dis trict court resolving all the grounds in the petition or, if a timely

appeal was taken, the issuance of the appellate court's remittitur").

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prejudice.

Id.

"And when a petitioner presents a claim of ineffective

assistance of postconviction counsel on the basis that postconviction counsel

failed to prove the ineffectiveness of his trial or appellate attorney, the

petitioner must prove the ineffectiveness of both attorneys." Id. at 424, 423

P.3d at 1098. An evidentiary hearing is required when the petitioner raises

claims supported by specific facts that are not belied by the record and that,

if true, would entitle the petitioner to relief. Hargrove v. State, 100 Nev.

498, 502-03, 686 P.2d 222, 225 (1984).

"[A] reviewing court begins with the presumption that counsel

performed effectively[,] [and] [t]o overcome this presumption, a petitioner

must do more than baldly assert that his attorney could have, or should

have, acted differently." Johnson III, 133 Nev. at 577, 402 P.3d at 1274

(internal citation omitted). "Instead, he must specifically explain how his

attorney's performance was objectively unreasonable." Id.; see also Evans

v. State, 117 Nev. 609, 647, 28 P.3d 498, 523 (200 1) (explaining that this

court will reject conclusory ineffective-assistance claims), overruled on other

grounds by Lisle v. State, 131 Nev. 356, 366 n.5, 351 P.3d 725, 732 n.5

(2015). Accordingly, Johnson's general assertion that first postconviction

counsel was ineffective for not raising every possible claim misses the mark.

Specifically, we are not persuaded by Johnson's contention that defense

counsel has an obligation to raise all potential claims under the Nevada

Indigent Defense Standards of Performance. See ADKT 411 (Order, Oct.

16, 2008) (Exhibit A, Standard 2-l0(a)(l)) (explaining that defense counsel

should exercise professional judgment and "consider all legal claims

potentially available"). As the Supreme Court has explained, professional

standards "are guides to determining what is reasonable, but they are only

guides." Stricldand v. Washington , 466 U.S. 668, 688 (1984).

It is not

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APP.005

objectively unreasonable for counsel to focus on the strongest claims that

may warrant relief rather than bury those claims in a morass of every

conceivable claim. See Miller u. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989)

(explaining that "every weak issue in an appellate brief or argument

detracts from the attention a judge can devote to the stronger issues, and

reduces appellate counsel's credibility before the court"); Hernandez u.

State, 117 Nev. 463, 465, 24 P.3d 767, 769 (2001) ("Attempting to deal with

a great many issues in the limited number of pages allowed for briefs will

mean that none may receive adequate attention." (internal alteration and

quotation marks omitted)). Rather, counsel should vet claims, prudently

decide which claims to raise, and thoroughly advocate those claims counsel

decides to raise. For the reasons discussed below, we conclude that Johnson

has not alleged sufficient facts to demonstrate that first postconviction

counsel provided ineffective assistance.

Jury issues

In claim

1 of his petition, Johnson

alleged that first

postconviction counsel should have challenged trial counsel's failure to

adequately litigate an objection pursuant to Batson u. Kentuchy, 476 U.S.

79 (1986). Johnson failed to allege sufficient facts to demonstrate deficient

performance by postconviction counsel. First postconviction counsel argued

that appellate counsel should have raised the Batson issue, which this court

rejected.'1 Johnson .III, 133 Nev . at 578, 402 P .3d at 1275. And because trial

To the extent that Johnson argues that first postconviction counsel

failed to adequately challenge appellate counsel's omission of the Batson

issue, he has not shown any of the "extraordinal'y circumstances" necessary

to overcome the doctrine of the law of the case and warrant revisiting a prior

decision. See Hsu v. Cty of Clarh, 123 Nev. 625, 630-31, 173 P.3d 724, 729

(2007) (discussing exceptions to the doctrine). Likewise, we conclude that

4

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APP.006

counsel objected and, although unsuccessfully, attempted to traverse the

State's race-neutral reasons as pretextual, we conclude first postconviction

counsel pursued an objectively reasonable course of challenging appellate

counsel's omission of the Batson issue. See id. at 133 Nev. at 576, 402 P.3d

at 1273-74 ("[A]n attorney is not constitutionally deficient simply because

another attorney would have taken a different approach."); see also Gray v.

Greer, 800 F.2d 644, 646 (7th Cir. 1986) ("Generally, only when ignored

issues are clearly stronger than those presented, will the presumption of

effective assistance of counsel be overcome."). Johnson also has not shown

a reasonable probability of a different outcome had postconviction counsel

challenged trial counsel's performance.

Because the trial-counsel claim

fails, the district court did not err in denying the postconviction-counsel

claim without conducting an evidentiary hearing.

Johnson also argues that (1) his trial venire did not represent a

fair cross section of the community, (2) the district court erred in denying

his for-cause challenges, and (3) juror misconduct warrants a new trial.

While Johnson discusses the m erits of the claims, he concedes similar

claims were raised and rejected in prior proceedings. See NRS 34.810(l)(b);

Johnson III, 133 Nev. at 578-79, 402 P.3d at 1274-75 (rejecting claims that

appellate counsel should have raised a fair-cross-section challenge and

argued that the district court erred in denying Johnson's for-cause

challenges); Johnson I, 118 Nev. at 796-98, 59 P .3d at 456-57 (upholding the

denial of a motion for a new trial_ based , in part, on alleged juror

Johnson's assertion that postconviction counsel should have raised the

Batson issue independent from a n ineffective-assistance-of-counsel claim

lacks merit because postconviction counsel would h a ve had to demonstrate

good cause to raise an independent cla im and Johnson identifies no such

good cause. S ee NRS 34.810(1)(6), (3).

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APP.007

misconduct).

However, Johnson

contends that these Jury issues

individually and cumulatively constitute structural error, and this court's

denial of relief in prior proceedings should excuse any procedural bar to

raising them again now. Johnson does not provide any controlling authority

to support his contention, see Maresca v. State, 103 Nev. 669, 673, 748 P.2d

3, 6 (1987) ("It is appellant's responsibility to present relevant authority and

cogent argument; issues not so presented need n ot be addressed by this

court."), and we decline his invitation to adopt a dissenting position from an

unpublish ed disposition. Asserting a n error constitutes structural error

does not avoid the law-of-the-case doctrine or relieve Johnson of his burden

to show good cause and prejudice to overcome the procedural bars. S ee

Thornburg v. Mullin , 422 F .3d 1113, 1141 (10th Cir. 2005) ("[E]ven

structural errors are subject t o stat e procedura l bars."). We conclude that

Johnson has not demonstrated an impediment external to the defense that

prevented him from complying with procedural rules. Hathaway v. State,

119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003). Therefore, the district court

did not err in denying these claims without conducting a n evidentiary

h earing.

Guilt phase evidence

In claim 3 of his petition, Johnson alleged that first

postconviction counsel omitted meritorious trial-counsel claims related to

the evidence presented at trial.

Expert witnesses

Johnson argues that first postconviction counsel should h ave

challenged trial counsel's failure to utilize defense experts. Johnson first

contends that trial counsel should h ave retained a n expert t o explain the

potential for police coercion of witnesses' volun tary statem ents.

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The

decision not to call a witness at trial is within counsel's discretion. See

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APP.008

Rhyne v. State, 1.18 Nev. 1, 8, 38 P.3d 163, 167 (2002) (noting that "the trial

lawyer alone is entrusted with decisions rega rding legal tactics such as

deciding what witnesses to call"). And here, trial counsel challenged the

key witnesses' credibility without the speculative expert opinion advanced

in the current petition.

Ftu-thermore, expert testimony about police

interrogation tactics would have, at most, given the jurors another factor to

assess the credibility of that testimony. See McNair u. State, 108 Nev. 53,

56, 825 P .2d 571, 573 (1992) ("[I]t is the jury's function, not that of the

[reviewing] court, to assess the weight of the evidence and determine the

credibility of witnesses."); Clarh v. State, 95 Nev. 24, 28, 588 P.2d 1027, 1029

(1979) (providing that expert "testimony is not bindi..n g on the trier of fact,

and the jury was entitled to believe or disbe1ieve the expert witnesses").

Because physical evidence corroborates the testinrnny that ~Johnson was

involved in the killings , it is unlikely t hat expert testimony casting doubt

on the witnesses' pretrial statements would have led the jury to disregard

the testimony presented at trial.

Thus, Johnson has not demonstrated

deficient performance and prejudice at the trial-counsel level, and he has

not

demonstrated

th at

postconviction

counsel

provided ineffective

assistance by omitting a meritorious issue.

Johnson also contends that a blood spatter expert could have

explained tha t the blood on the back of his pants was likely transferred and

not spatter from shooting the victims. The inference that J ohnson would

not get blood on the back of hi s pants after shootin g· the victims is a matter

of common sen se and ther efore did not require specialized knowledge. S ee

United States v. Raym.ond, 700 F. Supp. 2d 142, 150 (D. Me. 2010)

(recognizing that expert witness testimony about matters of common sense

"invites a toxic mixture of purported expertise and common sen se"); see also

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APP.009

Townsend v. State, 103 Nev. 113, 117, 734 P.2d 705, 708 (1987) (recognizing

that expert testimony is admissible when "the expert's specialized

knowledge will assist the trier of fact to underst a nd the evidence or

determine a fact in issue"). First postconviction counsel thus had no sound

basis to challeng·e trial counsel's performance in that respect. In fact, trial

counsel argued to the jury that the blood on the back of Johnson's pants

meant he was not the shooter. Therefor e, the district court did not err in

denying this claim without conducting an evidentiary hearing.

Cross-examination of prosecution experts

Johnson argues that postconviction counsel should have

challenged trial counsel's cros~-examination of the State's expert witnesses

on the ground that it was inadequate. First, Johnson contends that trial

counsel should h ave chall e nged the fingerprin t expert's method of

comparing fingerprints and his testimony thal he could match a fingerprint

with 100 per cent accuracy. Rather than challenge the forensic evidence,

trial counsel elicited testimony that it is impossible to determine when a

:fingerprint is made and a rgued to th e jury that Johnson h a d previously sold

the victims crack cocaine packaged in the cigar box, thus providing an

a lterna tive explanation for Johnson's fingerprint bein g on the cigar box.

Tha t approach was objectively r eason able, particularly when testimony

suggested that the perpetrators may have worn gloves at the scene.

Accordingly, tTohnson did not allege suffici.e nt facts to show that

postconviction coun sel neglected to rai se a meritoriou s claim.

Next, J ohnson con te nd s that trial coun sel should have

undermined the State's firearm s expert testimony t h at h e was certain in

his opinion that four bullet c::i.si ngs recovered at the scen e were fired from

the same weapon , which su ggested that ,John son personally killed each

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victim. However, this court concluded that "th e ev iden ce produced at trial

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APP.010

overwhelmingly shows that Johnson was guilty of first-degree murder

under the theories that the murders were williul, deliberate, and

premeditated or were committed during the course of a felony." See Johnson

III, 133 Nev. at 582, 402 P.3d at 1277-78; see also Johnson I, 118 Nev. at

797, 59 P.3d 450 at 457 (noting the overwhelming evidence connecting

Johnson to the crime).

Thus, even assuming trial counsel could have

undermined the theory that Johnson personally killed each victim, he would

be liable for the other murders under the felony-murder theory, making the

death sentence available for the jury to impose . Accordingly, Johnson has

not shown that he would have been granted relief had postconviction

counsel raised this claim.

Next, Johnson contends that postconviction counsel should

have asserted that trial c011nsel ·was ineffective for not- challeng·ing the

pathology expert's testimony that the victims wete shot at very close range.

Johnson contends that during :1 different trial another pathologist testified

that the gunshots were fired from a farther distance. Johnson has not

shown that evidence that the victims being shot from a greater distance

would have undermined the State's theory that h e shot each victim.

Accordingly, Johnson has not shown that he wou]d lrnve been granted relief

had postconviction counsel r::ii sed this claim.

Finally, Johnson contends that postconviction counsel should

have challenged trial counsel 's failure to contest the DNA expert's

assertions about the certajnty of the testing r es ults. This claim is belied by

the record, which shows that t.ri ~ 1 cou nsel elicited testimony from the expert

that nothing i8 certain and th,1t false readings are always possible. And

Johnson does not specify furth e r impeachment tlurt would have led to a

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APP.011

different outcome. Therefore, the district court did not err in denying this

postconviction-counsel claim without conducting an evidentiary hearing.

Impeachment of witnesses

Johnson argues that postconviction counsel should have

challenged trial counsel's failure to adequately impeach the State's lay

witnesses. While he lists inconsistencies in the witnesses' testimony and

prior statements, this court previously found that "defense counsel

aggressively cross-examined each of the State's witnesses." Johnson I, 118

Nev. at 793, 59 P.3d at 454. Johnson has not shown that trial counsel's

performance was deficient.

Consequently, Johnson has not shown a

reasonable probability of a different outcome h_ad trial counsel further crossexamined these witnesses.

denying

this

Therefore, the district court did not err in

postconviction -coun sel

claim

without

conducting

an

evidentiary hearing.

Stolen VCR

Johnson argues t.l1at postconviction counsel should have

challenged trial counsel's failure to object to the State's theory that he

robbed the victims of a VCR. Tn support, Johnson cites a crime scene report

that noted "[a] VCR, multi-play compact disk [in the victims' residence] had

its back removed" and a photographic exhibit of an electronic device with

its back panel removed. The s upcr secli_ng indictment ch arged Johnson with

robbing the victims of pc rso n8l property (m oney); thus, the robbery

convictions did not hinge on the VCR theft. At trial, the evidence showed

that Johnson stole other property, in cluding a gam ing console, a pager, and

money. Thus, challenging- the VCR theft \Vould not create a reasonable

probability of a different outcome, and the di strict court did not err 1n

denying this claim without c0nd11ctin g· nn cvidentiary hearing.

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APP.012

Guilt phase jury inslruclZ:ons

In claim 4 of his petition, Johnson alleged that first

postconviction counsel should have raised claims that trial and appellate

counsel failed to challenge or request several jury instructions.

First, Johnson argues that postconviction counsel should have

claimed that trial and appellate counsel were ineffective fo1· not challenging

the felony-murder instruction because it improperly suggested that, by

proving felony murder, the State conclusively proved premeditation, and

lessened the State's burden to prove premeditated murder. Johnson has

not shown that postconviction counsel omitted a meritorious issue. Even

assuming error, Johnson cannot s how a reasonable probability of a different

outcome in the postconvicbon proceechngs as his c.laim of error depends on

the jury first finding him gui lty n.f felony murde r, making the killings firstdegree murder. S ee NRS 200.030(1.)(b). Therefore, the district court did not

err in denying this postconviction-co11 nsel claim.

Second, Johnson arg-11cs that postconviction counsel should

have claimed that trial and appellate counsel were ineffective for not

challenging the burglary instru ction because it. improperly created a

presumption ofburg-larious inten t. ,Tohnson has not demonstrated deficient

performance or prejudice because t.hi s court h as approved the instruction

based on NRS 205.065. See Barlo,o v. 8late, 138 Nev. , Adv. Op. 25, 507 P.3d

1185, 1198-99 (2022). The distri ct r.o urt th e refore did not err in rejecting

this postconviction-coun sel claim.

Third, tTohn son cont·e:nrh th::it postco nviction counsel should

have argued that the district co11rt failed to instruct the jury that murder

and kidnapping could n ot be prerlicates for one another and trial and

appellate counsel were ineffective for not raising the jssue. Johnson has not

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shown that counsel's performance was defici ent or that he was prejudiced.

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APP.013

This court has recognized that dual convictions for murder and kidnapping

may be warranted depending on the circumstances of the crime. Pascua v.

State, 122 Nev. 1001, 1006, 145 P.3d 1031, 1034 (2006). Furthermore, even

if a challenge had been made, Johnson cannot demonstrate prejudice

because the jury convicted him of robbery, which independently supports

the theory of felony murder. Therefore, the district court did not err in

denying this postconviction-counsel claim.

Fourth, Johnson argues that postconviction counsel should

have claimed that trial and appellate counsel were ineffective for not

challenging the kidnapping instruction because it did not tell the jury that

Johnson could not be convicted of the charge if the movement or restraint

was incidental to the robbery. Postconviction counsel raised an ineffectiveassistance claim based on the dual convictions for kidnapping and robbery.

This court rejected the claim because "the victims were bound with duct

tape, which prevented them from escaping or defending themselves" such

that the dual convictions were proper. Johnson III, 133 Nev. at 581, 402

P.3d at 1277. Therefore, Johnson has not shown that postconviction counsel

performed deficiently by failing to base the ineffective-assistance claim on

instructional error.

Fifth, Johnson argues postconviction counsel should have

claimed that trial and appellate counsel were ineffective for not challenging

the robbery instruction because it failed to inform the jurors that the victims

must have actual possession or a possessory interest in the property taken.

Aside from the stolen electronics, the State presented evidence that Johnson

and the otheT perpetrators removed the victims' wallets and stole the

contents. A reasonable juror thus could infer that Johnson robbed the

victims of their property.

Therefore, ,Johnson has not shown tha t

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APP.014

postconviction counsel performed deficiently in omitting this ineffectiveassistance claim based on error as to the robbery instruction.

Finally, Johnson argues that postconviction counsel should

have claimed that trial and appellate counsel were ineffective for not

challenging the aiding and abetting instruction because it failed to inform

the jury about the requisite intent. We disagree because the latter portion

of the challenged instruction informed the jurors that Johnson needed to act

with the intent that the underlying crimes be committed. And the trial

court properly instructed the jury about the requisite intent for the charged

crimes.

Therefore, Johnson has not shown that postconviction counsel

performed deficiently by omitting ineffective-assistance claims based on

this instructional error.

We conclude the district court did not err in

denying these postconviction-counsel claims without conducting an

evidentiary hearing.

Nonunanimous verdicts

In claim 11 of his petition, Johnson alleged that first

postconviction counsel should have argued that trial and appellate counsel

were ineffective for failing to assert that the jury must unanimously agree

on the theory ofliability for murder. Given controlling Nevada law, Johnson

failed to allege sufficient facts to demonstrate that first postconviction

counsel omitted a meritorious issue. See, e.g., Anderson v. State. 121 Nev.

511, 515, 118 P.3d 184, 1.86 (2005) ("A unanimous general verdict of guilt

will support a conviction so long as there is substantial evidence in support

of one of the a lternate theories of culpability."). Therefore, the district court

did not err in denying this claim without conducting an evidentiary hearing.

Penalty-phase-counsel claims

In claim 14 of his petition, Johnson alleged that first

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postconviction counsel omitted several alleged instances of trial counsel's

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APP.015

deficient performance during the 2005 penalty hearing retrial.

First,

Johnson contends that trial counsel should have challenged his guilt during

the penalty bearing by moving to strike the multiple-murder aggravating

circumstance. This court found that "[t]he State presented overwhelming

evidence" of Johnson's guilt and affirmed the convictions before remanding

for a new penalty hearing. Johnson I, 118 Nev. at 797, 806, 59 P.3d at 457,

463.

Thus, trial counsel made the reasonable decision to focus on a

mitigation case and asking the jury to spare Johnson's life. See Florida u.

Nixon , 543 U.S. 175, 191 (2004) (providing that during the penalty phase of

trial, "counsel's mission is to persuade the trier that his client's life should

be spared"). Therefore, the district court did not err in denying this claim

without conducting an evidentiary hearing.

Second, Johnson contends that postconviction counsel should

h ave asserted that trial counsel failed to adequately investigate and prepare

for the penalty hearing.

Johnson contends tha t trial counsel did not

maintain a consistent defense theory and points to three inconsistent

statements offered by his trial counsel team. Johnson asserts that trial

counsel contradicted each other a bout the availability of drugs in prison.

This court rejected a similar claim of ineffective assistance of counsel in the

first postconviction appeal, see Johnson Ill, 133 Nev. a t 585, 402 P.3d at

1280, and Johnson has not alleged what tack first postconviction counsel

should have taken t hat would have resulted in a different outcome. Johnson

a lso cites his trial counsel team making inconsistent comments about his

level of involvement in the murders. To the ext ent their comments were

inconsistent, the multiple-murder aggravating circumstance was proven by

the jury's verdict. Becau se Johnson's guilt had been established, it was not

objectively unxeasonable for trial counsel to acknowledge t he difficult facts

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APP.016

of Johnson's crimes, which this court described as "unprovoked, vicious, and

utterly senseless." Johnson u. State (Johnson II), 122 Nev. 1344, 1360, 148

P.3d 767, 778 (2006); see also Yarborough v. Gentry, 540 U .S. 1, 9 (2003)

("By candidly acknowledging his client's shortcomings, counsel might have

built credibility with the jury and persuaded it to focus on the relevant

issues in the case.").

The third inconsistency-the trial counsel team

focusing on different mitigating circumstances- is not inconsistent. One

member of the trial team discussed how Johnson's family loved him, and

the other discussed Johnson's difficult, violent upbringing.

presenting

multiple

mitigating

circumstances

1s

not

Because

objectively

unreasonable, the district court did not err in denying this claim without

conducting an evidentiary hearing.

Third, Johnson contends that postconviction counsel should

have asserted that trial counsel should have interviewed Johnson's father

for mitigation purposes. But postconviction counsel raised this claim in the

first petition, trial counsel testified that the defense could not locate

Johnson's father, this coul't rejected the ineffective-assistance claim, and

reconsideration is barred by the doctrine of the law of the case. See Johnson

III, 133 Nev. at, 583, 402 P.3d at 1278 (rejecting postconviction counsel's

claim that trial counsel failed to present testimony from Johnson's father in

mitigation).

Because at least one juror found multiple mitigating

circumstances based on Johnson's difficult childhood, he also has not

demonstrated that his father's testimony would have added anything

significant to what trial counsel presented at the penalty hearing.

Therefore, the district court did not err in denying this claim without

conducting an evidentiary hearing.

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APP.017

Fourth, Johnson contends that postconviction counsel should

have claimed that trial counsel should have utilized a trauma expert.

Johnson has not shown a reasonable probability that such an expert would

have altered the outcome of the penalty hearing. Even without hearing

from a trauma expert, at least one juror found multiple mitigating

circumstances related to Johnson's traumatic childhood, including that he

grew up in a violent neighborhood, was neglected by his mother, and never

had a positive male role model. Additional evidence about trauma also

could have been detrimental, suggesting that Johnson was too dangerous to

be afforded mercy. See Atliins v. Virginia, 536 U.S. 304, 321 (2002) (noting

that mitigating evidence "can be a two-edged sword that" jurors might find

to show future dangerousness) . Johnson offers no reasoning that an expert

opining about the effects of trauma would have created a reasonable

probability of a different outcome at the penalty hearing. Therefore, the

district court did not err in denying this claim without conducting an

evidentiary hearing.

Fifth, Johnson contends that postconviction counsel should

have claimed that trial counsel was ineffective for not requesting a full

neuropsychological battery and for retaining a neuropsychologist who

testified in a codefendant's trial and thus had a conflict of interest.

Postconviction counsel cannot be expected to uncover every potential claim

or chase down every lead. See Rompilla u. Beard, 545 U.S. 374, 383 (2005)

("[T]he duty to investigate does not force defense lawyers to scour the globe

on the off chance something will turn up."). Here, postconviction counsel

challenged trial counsel's failure to obtain a PET scan, Johnson III, 133

Nev. at 583, 402 P.3d at 1278, and Johnson does not explain what other

testing trial counsel should have obtained or explain how it would have led

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APP.018

to a reasonable probability of a different outcome at the penalty hearing.

As to the argument about the neuropsychologist retained by trial counsel,

Johnson himself waived any potential conflict with the neuropsychologist.

Therefore, the district court did not err in denying this postconvictioncounsel claim without conducting an evidentiary hearing.

Finally, Johnson argues that postconviction counsel should

have challenged trial counsel's failure to object to the prosecution's

presentation of evidence from the guilt phase of trial in the eligibility stage

of the penalty hearing.

evidence

"concerning

NRS 175.552(3) permits the State to present

aggravating ... circumstances

relative

to

the

offense." 6 Thus, it was not objectionable for the State to present such

evidence, and the district court did not err in denying this postconvictioncounsel claim without conducting an evidentiary hearing.

Weighing of aggravating and mitigating circumstances

In claim 24 of his petition, Johnson alleged that first

postconviction counsel should have challenged trial counsel's failure to

request a jury instruction applying the beyond-a-reasonable-doubt standard

to the weighing of aggravating and mitigating circumstances and appellate

counsel's failure to raise the issue based on dicta in Johnson I , 118 Nev. at

To the extent Johnson contends that postconviction counsel should

have challenged trial counsel's failure to object to the introduction of

autopsy photographs, he has not shown that postconviction counsel omitted

a meritorious claim. S ee Archanian v. State, 122 Nev. 1019, 1031, 145 P.3d

1008, 1017 (2006) ("This court has repeatedly upheld the admission of

autopsy photographs, even grisly ones, when they are used to demonstrate

the cause of death and reflect the severity of wounds and the manner in

which they were inflicted.").

5

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APP.019

802-03, 59 P.3d at 460. 6 In McConnell v. State, this court clarified that the

weighing determination need not be found beyond a reasonable doubt. 125

Nev. 243, 254, 212 P.3d 307, 314-15 (2009). Given that McConnell was

published during Johnson's first postconviction proceedings, postconviction

counsel was not ineffective for omitting the issue. Therefore, the district

court did not err in denying this claim without conducting an evidentiary

hearing.

Implicit bias

In claim 27 of his petition, Johnson alleged that postconviction

counsel omitted a claim that trial counsel should have asked the trial court

to screen for implicit bias and requested an instruction on its dangers and

that appellate counsel should have raised this issue. Johnson fails to allege

specific facts to show that implicit bias affected his trial. Therefore, the

district court did not err in denying this postconviction-counsel claim

without conducting an evidentiary hearing.

Prosecutorial misconduct

In claim 16 of his petition, Johnson alleged that postconviction

counsel neglected to claim that appellate counsel should have argued the

State improperly asked his brother-in-law about misdemeanor convictions.

6Johnson

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also a lleged that Hurst v. Florida, 577 U .S. 92 (2016),

announced a new retroactive constitutional rule that the State had to prove

beyond a reasonable doubt that the mitigating circumstances did not

outweigh the aggravating. tTohnson concedes that this court has rejected

his interpretation of I-lurst, see, e.g., Castillo v. State, 135 Nev. 126, 442 P.3d

558 (2019), but urges this court to reconsidex the issue without any further

analysis. We conclude he has not made a compelling case to overrule that

precedent. See Armenta-Carpio v. State, 129 Nev. 531, 535, 306 P.3d 395,

398 (2013) ("Under the doctrine of stare decisis, we will not overturn

precedent absent compelling reasons for so doing." (quotation marks and

alterations omitted)).

NEVADA

19

APP.020

The trial court sustained trial counsel's objection, effectively obviating any

prejudice from the prosecutor's inquiry. See Pantano v. State, 122 Nev. 782,

794, 138 P .3d 477, 485 (2006) (concluding that defendant received the

appropriate remedy "when the district court sustained his objection and

granted his motion to strike" an improper statement). Accordingly, Johnson

has not shown that postconviction counsel omitted a meritorious claim as

there is no reasonable probability of a different outcome on direct appeal

based on the district court's actions.

standard).

See NRS 178.598 (harmless error

Therefore, the district court did not err in denying this

postconviction-counsel claim without conducting an evidentiary hearing.

Juror misconduct

In claim 18 of his petition, Johnson alleged that first

postconviction counsel should have raised a claim that appellate counsel

failed to challenge alleged juror misconduct in the 2005 penalty hearing

retrial. Johnson contends that the jury foreperson (1) informed other jurors

that Johnson had been previously sentenced to death, (2) decided the

sentence to impose before deliberations, and (3) planned to write a book

about her experience. Trial counsel moved for a new trial and the trial court

held an evidentiary hearing. At the end of the hearing, the trial court

discussed the evidence presented, reviewed the foreperson's trial notes, and

found that based on a totality of the circumstances there was no misconduct

or prejudice. See Meyer v. State, 119 Nev. 554, 563-64, 80 P.3d 44 7, 455

(2003) (explaining that a defendant must "establish: (1) the occurrence of

juror misconduct, and (2) a showing that the misconduct was prejudicial"

resulting in "a reasonable probability or likelihood that the juror

misconduct affected the verdict"). Because the record supports the trial

court's decision, Johnson has not shown a reasonable probability of success

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had fu·st postconviction counsel challenged appellate counsel's failure to

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APP.021

raise the juror misconduct issue. Therefore, the district court did not err in

denying

this

postconviction-counsel

claim

without

conducting

an

evidentiary hearing.

Juvenile records

In claim 20 of his petition, Johnson alleged that first

postconviction counsel should have claimed appellate counsel's challenge to

the admission of his juvenile records under Roper v. Simmons, 543 U.S. 551

(2005), was inadequate. On direct appeal, this court rejected the claim and

explained that "Roper did not prohibit the admission of juvenile records

during a death penalty hearing.'' Johnson II, 122 Nev. at 1353, 148 P .3d at

773. Given that decision, which is the law of the case on the merits of the

underlying issue, Johnson has not demonstrated that postconviction

counsel performed deficiently in omitting this ineffective-assistance claim

or that he was prejudiced by the omission. Therefore, the district court did

not err in denying this claim without conducting an evidentiary hearing.

Constitutionality of the death penalty

In claim 21 of his petition, Johnson alleged that execution by

lethal injection constitutes cruel and unusual punishment.

Johnson

concedes this court has held that a challenge to Nevada's death penalty

protocol is not a cognizable claim in postconviction proceedings.

See

McConnell, 125 Nev. at 249, 212 P.3d at 311 (explaining that a ''challenge

to the lethal injection protocol does not implicate the validity of the death

sentence and therefore falls outside the scope of a post-conviction petition

for a writ of habeas corpus").

While he urges this court to reconsider

McConnell, he fails to provide any compelling reasons to do so. See Nance

v. Ward, 142 S. Ct. 2214, 2219 (2022) (reaffirming that an action under 42

U.S.C. § 1983 is the appropriate vehicle for a method-of-execution

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challenge); Armenta-Carpio v. State, 129 Nev. 531, 535, 306 P.3d 395, 398

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APP.022

(2013).

Therefore, the district court did. not err 1n denying this claim

without conducting an evidentiary hearing.

Judicial bias

In claim 23 of his petition, Johnson alleged that postconviction

counsel should have argued that appellate counsel inadequately challenged

judicial bias during the direct appeal aner the 2005 penalty hearing retrial.

This claim is belied by the record given that Johnson makes the same

argument that appellate counsel made-challenging former Justice

Becker's impartiality due to her employment negotiations with the Clark

County DistI·ict Attorney's Office while Johnson's direct appeal was

pending. Johnson II, No. 45456, at 1-2 (Nev. June 29, 2007) (Order Denying

Motion). And this court determined "that the result would have remained

the same regardless of [Justice Becker's] participation" in deciding

Johnson's appeal. Id. at 2. Because Johnson fails to show that appellate

and postconviction counsel were ineffective, the district court did not err in

denying this claim without conducting an evidentiary hearing.

Waived claim,s

Johnson generally argues that postconviction counsel was

ineffective for

not raising numerous claims- alleged instances of

prosecutorial misconduct in both phases of trial (claims 5 and 16); trial court

errors in allowing the State to conduct a pretrial deposition, allowing

speculative expert testimony, admitting inflammatory photographs, not

screening jurors for implicit bias, questioning a juror during the first

penalty hearing deliberations, and admitting evidence in violation of the

Confrontation Clause (claims 6(C), (F)-(H), 9); Johnson's conviction violated

double jeopardy (claim 8); imposition of the death sentences violated double

jeopardy and due process (claim 13); instructional error in the penalty phase

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of trial (claims 15(A)-(D)); the jury did not determine Johnson was a major

OF

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APP.023

participant in the murders (claim 19); judicial bias in both phases of trial

(claims 23(A), (C)); Nevada's mandatory review of death penalty cases is

insufficient (claim 23(D)); elected judges are biased (claim 23(E)); and

evidence of Johnson's gang affiliation violated the First Amendment (claim

28). These claims are procedurally barred as they could have been raised

in prior proceedings.

NRS 34.810(1)(b).

Accordingly, Johnson must

demonstrate good cause and actual prejudice to raise these claims now. "To

show 'good cause,' a petitioner must demonstrate that an impediment

external to the defense prevented him from raising his claims earlier."

Pellegrini v. State, 117 Nev. 860, 886, 34 P.3d 519, 537 (2001), abrogated on

other grounds by Rippo v. State, 134 Nev. 411,423 n.12, 423 P.3d 1084, 1097

n.12 (2018).

In his appellate brief, Johnson makes the general statement

that first postconviction counsel's deficient performance resulted in

prejudice because the above claims are meritorious. Thus, Johnson appears

to assert ineffective assistance of postconviction counsel as good cause to

raise these waived claims. However, the claims would have been subject to

the same procedural bar had postconviction counsel asserted them in the

first petition, and Johnson fails to allege how postconviction counsel could

have demonstrated good cause and prejudice. Johnson does not allege that

the factual or legal bases for the claims were not reasonably available to be

raised at trial or on appeal, id. at 886-87, 34 P.3d at 537, nor that

postconviction counsel should have raised them as trial- or appellatecounsel claims, Tho,nas u. State, 138 Nev., Adv. Op. 37, 510 P.3d 754, 763

(2022) ("[W]ben a postconviction-counsel claim is based on the omission of

a trial- or appellate-counsel claim, 'the petitioner must prove the

ineffectiveness of both attorneys."' (quoting Rippo, 134 Nev. at 424, 423 P.3d

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APP.024

at 1098)). Instead, Johnson devotes this part of his appellate briefing solely

to the substance of the waived claims. Therefore, Johnson fails to cogently

argue that there was good cause for him to raise the waived claims now.

See Chappell v. State, 137 Nev., Adv. Op., 501 P.3d 935, 950 (2021) (noting

that this cmut has "ma[de] it clear that a petitioner's appellate briefs must

address ineffective-assistance claims with specificity, not just 'in a pro

forma, perfunctory way' or with a 'conclusory[ ] catchall' statement that

counsel provided ineffective assistance" (quoting Evans v. State, 117 Nev.

609, 647, 28 P.3d 498, 523 (2001))).

Accordingly, Johnson has not

demonstrated that review is warranted. See Maresca u. State, 103 Nev. 669,

673, 7 48 P .2d 3, 6 (1987) ("It is appellant's responsibility to present relevant

authority and cogent argument; issues not so presented need not be

addressed by this court.").

D1:sclosure of evidence

In claim 7 of his petition, Johnson a lleged that the State

withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). A

Brady violation has three components: that "(1) the evidence is favorable to

the accused, either because it is exculpatory or impeaching; (2) the State

withheld the evidence, either intentionally or inadvertently; and (3)

prejudice ensued, i.e., the evidence was material." State v. Huebler, 128

Nev. 192, 198, 275 P.3d 91 , 95 (2012) (internal quotation marks omitted).

The second and third components parallel the cause and prejudice showings

required to excuse the procedural time bar. Id. But Johnson also had to

raise the Brady cla im within a reasona ble time after it became available.

Id. at 198 n.3, 275 P .3d at 95 n.3. This means he had to provide specific

information about when he discovered that the State withheld the evidence.

Moore v. State, 134 Nev. 262, 264, 417 P .3d 356, 359 (2018). Johnson has

SUPREME CouRr

not done so. Fur thermore, Johnson could have raised this claim in prior

OF

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APP.025

proceedings and has not demonstrated good cause for raising it now. See

NRS 34.810(1)(b), (3).

Accordingly, the district court did not err in

concluding that this claim was insufficient to overcome the procedural

bars. 7

Actual innocence

In claim 29 of his petition, Johnson alleged that he can

overcome the procedural bars because he is actually innocent of the death

penalty, as his age at the time of the offenses (he was 19 years old) combined

with his poor intellectual functioning render him categorically ineligible for

the death penalty.

We recently rejected a nearly identical argument.

Thomas v. State, 138 Nev. , Adv. Op. 37, 510 P.3d 754, 775 (2022) (declining

invitation to extend categorical exclusions "to defendants who were under

the age of 25 at the time of the crime and those who suffer from borderline

intellectual functioning"). Accordingly, Johnson does not demonstrate that

a fundamental miscarriage of justice would occur if his procedurally barred

claims are not considered on the merits. We therefore conclude that the

district court did not err in denying this claim.

Cumulative error

In claim 30 of his petition, Johnson alleged that cumulative

error warranted relief.

He argues that this court must consider every

claim-whether newly or previously raised-when addressing his claim of

cumulative error.

We have held that "[a] petitioner cannot turn to

'cumulative error' in an effort to relitigate claims that the court has rejected

on the merits or to reach the merits of claims that are procedurally barred.''

7 Johnson

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also contends that the State did not provide certain

discovery in a timely manner. But he does not allege or demonstrate good

cause and prejudice to raise this procedurally barred trial claim. NRS

34.8 l0(l)(b) .

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25

APP.026

Chappell, 137 Nev., Adv. Op. 83, 501 P.3d at 959. Accordingly, we reject

Johnson's attempt to relitigate previously rejected claims or to avoid the

procedural bars to newly raised claims under the guise of cumulative error.

Having concluded that no relief is warranted, we

ORDER the judgment of the district court AFFIRMED.

-~---=-·

~~'--',

= - - - - - -' C.J.

Stiglich

J.

_do-----'/~- - '

Herndon

J.

_ ,

J.

~~

·

cc:

Hon . Jacqueline M. Bluth, District Judge

Federal Public Defender/Las Vegas

Attorney General/Carson City

Clark County District Attorney

Eighth District Court Clerk

SUPREME COURT

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26

APP.027

APPENDIX B

Order Denying Rehearing, Johnson v. State,

Supreme Court of the State of Nevada,

Case No. 83796 (September 26, 2023)

APP.028

IN THE SUPREME COURT OF THE STATE OF NEVADA

DONTE JOHNSON,

Appellant,

No. 83796

vs.

THE STATE OF NEVADA,

Res ondent.

SEP 26 2023

ORDER DENYING REHEARING

Rehearing denied. NRAP 40(c).

It is so ORDERED. 1

~C--0

'C.J.

Stiglich

e•e&J

, J.

CffL

' J.

Pickering

Lee

~

Herndon

£lvo

Parraguirre

~

,.

°ts'.¢

, J.

,--J.

, J.

Bell;lb

1The

Honorable Elissa Cadish, Justice, did not participate in the

decision in this matter.

SUPREME C OURT

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NEVADA

(0) 1947A

~

APP.029

cc:

Hon. Jacqueline M. Bluth, District Judge

Federal Public Defender/Las Vegas

Attorney General/Carson City

Clark County District Attorney

Eighth District Court Clerk

SUPREME COURT

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(0) 1947A

..,

2

APP.030