Johnson v. State

1

DONTE JOHNSON, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 83796

Supreme Court of Nevada

June 28, 2023

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

Stiglich, C.J.

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 the sentence for the murders. The case went to a three-judge panel, which sentenced Johnson to death for each murder. On direct appeal, this court upheld the convictions, vacated the death sentences, and remanded for a new penalty hearing. Johnson v. State (Johnson I), 118 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 u. 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 affirmed. Johnson v. State (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 pro se 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)(b). 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 34.810(1)(b), (3). Because the petition was filed over five years after issuance of the remittitur from his direct appeal. NRS 34.800(2) imposes a rebuttable 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 in the petition have been resolved in prior appellate proceedings and therefore further consideration of them is barred by the doctrine of the law of the case. Hall 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 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 (2001) (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 2-10(a)(1)) (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." Strickland v. Washington, 466 U.S. 668, 688 (1984). It is not 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 v. 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 v. 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 v. Kentucky, 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^[4] Johnson III, 133 Nev. at 578, 402 P.3d at 1275. And because trial 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 merits of the claims, he concedes similar claims were raised and rejected in prior proceedings. See NRS 34.810(1)(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.3cl at 456-57 (upholding the denial of a motion for a new trial based, in part, on alleged juror 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. Stale, 103 Nev. 669, 673, 748...