NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Capital Punishment Handbook: State Law Summaries - Nevada

        a.     History
        b.     Capital Offenses
        c.     Representation In Capital Cases
        d.     Trial Of Capital Offenses
        e.     Capital Sentencing: Penalty Hearing
        f.      Aggravating Circumstances
        g.     Mitigating Circumstances
        h.     Appellate Review Of Capital Sentences
        i.      Collateral Remedies
        j.      Post-Conviction Relief
        k.     Appellate Review of Collateral Proceedings
        l.      Procedural Bar/Waiver/Exhaustion
        m.    Execution
        n.     Competency For Execution
        o.     Stays Of Execution
        p.     Clemency Procedures

In Anderson v. State, 90 Nev. 385, 528 P.2d 1023 (1974), the Nevada Supreme Court acknowledged the unconstitutionality of the state’s pre-Furman death penalty statute. The statute failed because it provided no guidance to control the sentencing authority in determining who would receive the death penalty and who would receive a sentence of life imprisonment.

The legislature’s 1973 amendment to the capital sentencing law attempted to correct this problem by eliminating any discretion on the part of the sentencing authority. Section 200.030 of the Nevada Revised Statutes made the death penalty mandatory for defendants convicted of capital murder. However, in accord with U.S. Supreme Court opinions striking down mandatory capital sentencing, the Nevada Supreme Court held several aspects of § 200.030 unconstitutional. The U.S. Supreme Court more recently held unconstitutional the last remnant of Nevada’s mandatory capital sentencing scheme as applied to a state prisoner convicted of murder while serving a life sentence. See Sumner v. Shuman, 483 U.S. 66 (1987).

The 1977 Nevada legislature enacted the current capital sentencing scheme. After weighing all aggravating and mitigating factors, the jury determines the punishment in a bifurcated sentencing proceeding. Additionally, Nevada law provides for automatic appellate review of death judgments and sentences.

Sumner v. Shuman, 483 U.S. 66 (1987) (holding unconstitutional last remnant of Nevada’s mandatory sentencing scheme for state prisoner convicted of murder while serving life sentence).

Woodson v. North Carolina, 428 U.S. 280 (1976) (declaring mandatory death penalty statute unconstitutional).

Furman v. Georgia, 408 U.S. 238 (1972) (per curiam) (holding unguided discretionary sentencing unconstitutional).

Finger v. State, 117 Nev. 548, 27 P.3d 66 (2001) (en banc) (holding that legal insanity is a well-established and fundamental principle of law of United States and is protected by Due Process Clauses of United States and Nevada Constitutions; holding, therefore, that legislature could not abolish insanity as complete defense to criminal offense and that 1995 legislative amendment (S.B. 314) abolishing insanity defense was unconstitutional; also holding that all prior versions of statutes amended or repealed by S.B. 314 remain in full force and effect), cert. denied, 534 U.S. 1127 (2002).

Bennett v. State, 106 Nev. 135, 787 P.2d 797 (affirming constitutionality of Nevada’s capital sentencing scheme), cert. denied, 498 U.S. 925 (1990).

Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979) (holding death penalty statute constitutional in light of Furman).

Bishop v. State, 95 Nev. 511, 597 P.2d 273 (1979) (holding death penalty statute does not violate state constitution).

Meller v. State, 94 Nev. 408, 581 P.2d 3 (1978) (holding mandatory death penalty for murder of police officer unconstitutional because failure to consider mitigating factors).  

Smith v. State, 93 Nev. 82, 560 P.2d 158 (1977) (holding mandatory death penalty for multiple murder under Nevada statute unconstitutional).

NRS § 200.030 (2005) (providing death penalty for first degree murder only if one or more aggravating circumstances found and not outweighed by mitigation).

First degree murder is a capital offense in Nevada. If found guilty of first degree murder, a defendant may receive a sentence of life imprisonment, with or without the possibility of parole, a definite 50-year prison term with eligibility for parole after 20 years, or a death sentence. First degree murder includes murder perpetrated by means of poison, lying in wait, torture, child abuse, or any other willful, deliberate, and premeditated killing; statutorily defined felony murder; murder committed to avoid or prevent a lawful arrest or to effect escape from legal custody of any person; and murder committed under certain circumstances that threaten the safety of pupils and school employees.

In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court held that the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on those who were under the age of 18 at the time their crimes were committed. Previously, Nevada law had prohibited the imposition of the death penalty on those under 16 years of age at the time the crime was committed. In 2005, NRS § 176.025 was amended to raise the threshold age for imposition of the death penalty to 18.  

The U.S. Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that the execution of the mentally retarded constitutes cruel and unusual punishment prohibited by the Eighth Amendment. See § 1.6. In 2003, the Nevada legislature enacted legislation that prohibits a sentence of death for a person who is mentally retarded. See NRS § 174.098. The statute provides that “mental retardation” means significant subaverage general intellectual functioning that exists concurrently with deficits in adaptive behavior and manifested during the developmental period. NRS § 174.098(7).

Under the statute a defendant who is charged with first degree murder may, at least 10 days before the date set for trial, file a motion to declare that he or she is mentally retarded. NRS § 174.098(1). If such a motion is filed, the court must stay the proceedings pending a decision on the issue and hold a hearing within a reasonable time to determine whether the defendant is mentally retarded. The defendant must provide evidence of mental retardation not less than 30 days before the date set for the hearing and undergo an examination by an expert selected by the prosecution on the issue of mental retardation. At the hearing the defendant has the burden of proving by a preponderance of the evidence that he or she is mentally retarded. If the court determines that the defendant is mentally retarded, the court must make such a finding in the record and strike the notice of intent to seek the death penalty. Such a finding may be appealed to the Nevada Supreme Court.

Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed).

Atkins v. Virginia, 536 U.S. 304 (2002) (holding that executing the mentally retarded violates the Eighth Amendment’s prohibition against cruel and unusual punishment).

Ninth Circuit: 

Brimmage v. Sumner, 793 F.2d 1014 (9th Cir. 1986) (holding convictions for felony murder and underlying felony does not constitute double jeopardy).

Domingues v. State, 114 Nev. 783, 961 P.2d 1279 (1998) (holding imposition of death penalty on persons under 18 years old did not violate international treaty because senate ratified treaty with caveat reserving right to impose capital punishment on minors), cert. denied, 528 U.S. 963 (1999).

Rippo v. State, 113 Nev. 1239, 946 P.2d 1017 (1997) (interpreting killing by torture to require the infliction of pain to be an integral part of the murders; the torture method need not be the cause of the victim’s death), cert. denied, 525 U.S. 841 (1998).

NRS § 174.098 (2005) (specifying procedures for filing motion to declare that capital defendant is mentally retarded).

NRS § 200.030 (2005) (defining first degree murder; providing death penalty or life imprisonment for first degree murder).

Section 2 of Nevada Supreme Court Rule 250 governs appointment of counsel for indigent capital defendants. Section 2 applies to all defense counsel, including public defenders. It establishes competency standards for capital counsel at all stages of representation, requires each judicial district to maintain a list of qualified defense counsel, and requires the court to appoint counsel from this list or hold a hearing to establish that counsel is otherwise qualified. Section 2 requires appointment of two counsel for representation at capital trials.

Section 3 of Rule 250, which applies to all capital cases, instructs trial counsel to turn over all records to successor counsel in the event of withdrawal and to prepare a detailed memorandum for successor appellate counsel. Section 3 further requires capital counsel to keep a record of all work performed while serving as trial, appellate, or postconviction counsel. The record must include time records and rationale for strategic decisions. Counsel is required to file affidavits with the district court at specified times throughout the proceedings certifying that counsel has maintained these records. Counsel must also retain either the original record or a copy until disposal is authorized by a court.

Rule 250(3) also provides for ex parte proceedings to authorize employment and payment of investigative and expert services.

Vanisi v. State, 117 Nev. 330, 22 P.3d 1164 (en banc) (clarifying that complexity of the case is not a basis for denying a defendant’s request for self-representation; rather, case complexity should be considered when determining whether defendant’s decision to waive counsel is made with full understanding of the consequences of the decision), cert. denied, 534 U.S. 1024 (2001).

NRS § 34.820 (2005) (requiring appointment of postconviction counsel for deathsentenced inmates).

The state’s trial court of general jurisdiction is the district court. The district court exercises original jurisdiction over civil and criminal cases, including capital cases, postconviction review, and habeas corpus. Capital trials are held in two phases. If the defendant is found guilty of first degree murder during the guilt phase, then a penalty proceeding occurs to determine the defendant’s sentence.  

Chapter 175 of the Nevada Revised Statutes sets out the general trial procedures applicable at the guilt phase. The defense and the prosecution may exercise eight, rather than four, peremptory challenges to selected jurors, and two counsel for each side may argue to the jury.

Nevada Supreme Court Rule 250 requires the prosecutor to file a notice of intent to seek the death penalty within thirty days after filing an information or indictment, and the notice must specifically allege all aggravating circumstances the state intends to prove at sentencing. The state may file a late or amended notice only upon a showing of good cause, but not later than thirty days before the trial starts. The state also must file a notice of evidence in aggravation no later than 15 days before the trial commences, specifying the evidence it intends to introduce at the penalty hearing.  Rule 250 additionally directs the trial court to give capital cases calendar priority and conduct proceedings with minimal delay.

Blake v. State, 121 P.3d 567 (Nev. 2005) (en banc) (holding that trial judge’s failure on six occasions to admonish jury before it recessed to refrain from talking about the trial and to avoid contact with the media did not require reversal, despite the fact that a statute mandated giving the admonishments, where there was no evidence of prejudice to defendant).

Mason v. State, 118 Nev. 554, 51 P.3d 521 (2002) (holding that Nev. Sup. Ct. R. 250(4)(f) requires state to produce notice of all evidence it intends to produce at capital penalty hearing, and that court erred in admitting certain evidence at penalty phase of trial without determining whether state had good cause for not providing notice of it earlier).  

Finger v. State, 117 Nev. 548, 27 P.3d 66 (2001) (en banc) (holding that legal insanity is a well-established and fundamental principle of law of United States and is protected by Due Process Clauses of United States and Nevada Constitutions; holding, therefore, that legislature could not abolish insanity as complete defense to criminal offense and that 1995 legislative amendment (S.B. 314) abolishing insanity defense was unconstitutional; also holding that all prior versions of statutes amended or repealed by S.B. 314 remain in full force and effect; remanding to district court with instructions to permit defendant to withdraw plea of “guilty, but mentally ill”), cert. denied, 534 U.S. 1127 (2002).

State v. Second Judicial District Court, 116 Nev. 953, 11 P.3d 1209 (2000) (holding Nev. Sup. Ct. R. 250 does not violate the separation of powers doctrine; finding district court acted within its discretion denying state’s untimely notices of intent to seek the death penalty).

Manley v. State, 115 Nev. 114, 979 P.2d 703 (1999) (finding violation of attorney client privilege constituted sixth amendment violation; holding error not harmless beyond a reasonable doubt).

Evans v. State, 113 Nev. 885, 944 P.2d 253 (1997) (holding when first degree murder charged in alternative, jury verdict need not be unanimous on theory of first degree murder).

Libby v. State, 113 Nev. 251, 934 P.2d 220 (1997) (remanding case for evidentiary hearing, following U.S. Supreme Court’s remand in light of J.E.B. v. T.B., 511 U.S. 127 (1994), where defendant established a prima facie case of venire gender discrimination, and trial court refused to require the state’s Batson explanation).

Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995) (holding state must give notice in charging document if it intends to pursue felony murder conviction; open charge of murder that did not contain felony murder charge was insufficient notice).

Shaw v. State, 104 Nev. 100, 753 P.2d 888 (1988) (holding state not required to charge underlying felony when charging felony-murder).

Nev. Sup. Ct. R. 250(4) (addressing pretrial proceedings; notice of intent; notice of evidence in aggravation).

After a jury finds the defendant guilty in a capital case, the court conducts a sentencing hearing to determine the penalty. At the sentencing hearing, the jury determines the sentence. The rules of evidence are generally inapplicable at the sentencing hearing. Any evidence that the court determines relevant is admissible.

 The jury must determine whether aggravating and/or mitigating circumstances exist, and, based on the findings, whether the defendant should be sentenced to life imprisonment with the possibility of parole, life imprisonment without parole, or death. The jury may impose a death sentence only if it finds at least one aggravating factor and no mitigating factors sufficient to outweigh the aggravating factor.

In 2003, the Nevada legislature enacted changes to the law, as a result of the decision in Ring v. Arizona, 536 U.S. 584 (2002). In Ring, the Supreme Court held that Walton v. Arizona, 497 U.S. 639 (1990) and Apprendi v. New Jersey, 530 U.S. 466 (2000) are irreconcilable and overruled Walton to the extent that it allowed a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. The Supreme Court reasoned that because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense” (Apprendi, 530 U.S. at 494 n. 19), the Sixth Amendment requires that they be found by a jury. The Court held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. Under the former procedure in Nevada, if the penalty phase jury was unable to reach a unanimous verdict, the supreme court would appoint a three-judge panel to conduct the required penalty hearing and determine a sentence. Effective June 9, 2003, NRS § 175.556, provides that if the penalty phase jury is unable to reach a unanimous decision, the judge who conducted the trial or accepted a guilty plea must sentence the defendant to life imprisonment without the possibility of parole or impanel a new jury to determine the sentence. Formerly, if the defendant pleaded guilty or waived a jury trial, a three-judge panel determined the sentence. In this situation NRS § 175.552 now provides a jury must be impaneled for the penalty phase of the trial.

In Colwell v. State, 118 Nev. 807, 59 P.3d 463 (2002) (en banc), the Nevada Supreme Court held that Ring did not apply retroactively on state collateral review of a finalized death penalty imposed by a three-judge panel. The court adopted the general framework of a Teague analysis, but reserved the prerogative as a state court “not to bind quite so severely our own discretion in deciding retroactivity.” Colwell, 59 P. 3d at 471. See generally as to Teague v. Lane, § 1.18.1. Later, in Schriro v. Summerlin, 542 U.S. 348 (2004) the United States Supreme Court also held that Ring v. Arizona did not apply retroactively to cases already final on direct review. However, in Johnson v. State, 118 Nev. 787, 59 P.3d 450 (2002) (en banc), the Nevada Supreme Court held that Ring applied in a case in which the supreme court had not yet reviewed the death sentence on appeal and in which the death sentence was imposed by a three-judge panel after the jury deadlocked at the penalty phase.

Schriro v. Summerlin, 542 U.S. 348 (2004) (holding that Ring v. Arizona did not apply retroactively to cases already final on direct review).

Ring v. Arizona, 536 U.S. 584 (2002) (holding that capital defendants are entitled to jury determination of any fact on which legislature conditions increase in their maximum punishment; also holding that Walton and Apprendi are irreconcilable and overruling Walton to extent that it allowed sentencing judge, sitting without jury, to find aggravating circumstance necessary for imposition of death penalty).

Thomas v. State, 120 Nev. 37, 83 P.3d 818 (2004) (reversing death sentence and remanding for new penalty phase trial, Nevada Supreme Court held that trial counsel’s failure to object to erroneous penalty phase instruction that state board of pardons could, under certain circumstances, modify sentence, constituted deficient performance that prejudiced defendant).

Mack v. State, 119 Nev. 421, 75 P.3d 803 (2003) (per curiam) (rejecting defendant’s assertion that NRS § 175.558 was unconstitutional because it did not permit a defendant to waive a jury trial as to the guilt phase, and to have a jury determine the sentence at the penalty phase, the court observed that offering a defendant the choice of having his entire trial before a jury or entirely without one does not appear to offend any of the reasoning in Ring; holding that here the record showed that defendant was aware that if his request for a bench trial was granted, a three-judge panel would determine his sentence).

Colwell v. State, 118 Nev. 807, 59 P.3d 463 (2002) (en banc) (holding that Ring does not apply retroactively on state collateral review of a finalized death penalty imposed by three-judge panel; alternatively, concluding that Ring was inapplicable here because petitioner had pleaded guilty and waived his right to a jury trial).

Johnson v. State, 118 Nev. 787, 59 P.3d 450 (2002) (en banc) (ruling that Ring applied in a case in which the supreme court had not yet reviewed the death sentence on appeal and in which the death sentence was imposed by a three-judge panel after the jury deadlocked at the penalty phase; holding that finding of aggravating circumstances and imposition of the death penalty by a three-judge panel violated the Sixth Amendment and that the error was not harmless).

Evans v. State, 117 Nev. 609, 28 P.3d 498 (2001) (en banc) (remanding for new penalty hearing because trial and appellate counsel were ineffective in failing to challenge improper arguments made by prosecutor during penalty phase asking jurors whether they had the “intestinal fortitude" to do their “legal duty” and incorrectly informing jurors that they could consider evidence of petitioner’s other crimes before determining “death eligibility”).

Hollaway v. State, 116 Nev. 732, P.3d 987 (2000) (en banc) (remanding for new penalty hearing because the stun belt worn by defendant was accidently activated during the prosecution’s closing argument).

Middleton v. State, 114 Nev. 1089, 968 P.2d 296 (1998) (rejecting any suggestion in Lisle v. State, below, that character evidence can be used to determine death eligibility itself)

Sherman v. State, 114 Nev. 998, 965 P.2d 903 (1998) (holding evidence of victim impact of prior murder not admissible in current sentencing hearing and holding prosecutor’s argument that jury should return a death sentence in favor of future victims improper), cert. denied, 526 U. S. 1122 (1999).

Lisle v. State, 113 Nev. 679, 941 P.2d 459 (stating consideration of character evidence at penalty hearing not limited to cases where jury has determined that defendant is death-eligible), cert. denied, 525 U.S. 830 (1998), limited by Middleton v. State, above.

Colwell v. State, 112 Nev. 807, 919 P.2d 403 (1996) (holding three-judge sentencing panel constitutional).

Canape v. State, 109 Nev. 864, 859 P.2d 1023 (1993) (stating that constitutional right to be free from prison clothing does not apply at sentencing hearing), cert. denied, 513 U.S. 862 (1994).

Redmen v. State, 108 Nev. 227, 828 P.2d 395 (1992) (holding state may argue defendant’s future dangerousness even when no evidence of violence exists independent of the charged murder; however, psychiatric opinion of defendant’s future dangerousness highly unreliable inadmissible evidence at penalty hearing), cert. denied, 506 U.S. 880 (1992), overruled on other grounds, Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995).

Homick v. State, 108 Nev. 127, 825 P.2d 600 (1992) (finding admissibility of victim impact evidence at sentencing comports with state constitution), cert. denied, 519 U.S. 1012 (1996).

Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991) (holding nontestifying codefendant’s confession not admissible at penalty hearing).

Baal v. State, 106 Nev. 69, 787 P.2d 391 (1990) (rejecting constitutional challenge to three-judge panel sentencing defendant who pleads guilty).

Emil v. State, 105 Nev. 858, 784 P.2d 956 (1989) (holding polygraph inadmissible at trial equally inadmissible at penalty hearing).

Pellegrini v. State, 104 Nev. 625, 764 P.2d 484 (1988) (holding capital defendant’s character and record relevant to jury’s sentencing determination; however, evidence must be more probative than prejudicial).

Hill v. State, 102 Nev. 377, 724 P.2d 734 (1986) (holding three-judge panel sentencing procedure, when jury unable to reach unanimous verdict, did not violate defendant’s right to jury trial, double jeopardy clause, or result in arbitrary and capricious imposition of death penalty), cert. denied, 479 U.S. 1101 (1987).

McKenna v. State, 101 Nev. 338, 705 P.2d 614 (1985) (stating jury not required to determine beyond a reasonable doubt that death was the appropriate sentence), cert. denied, 474 U.S. 1093 (1986).

Wilson v. State, 99 Nev. 362, 664 P.2d 328 (1983) (holding trial court not precluded from imposing death penalty where defendant had pled guilty to first degree murder prior to district attorney’s notice to seek death penalty), aff’d on reh’g, 101 Nev. 452, 705 P.2d 151 (1985).

NRS § 175.552 (2005) (requiring capital penalty hearing before jury; any evidence relevant to sentence admissible).

NRS § 175.556 (2005) (providing for sentencing panel when jury unable to reach verdict).

NRS § 175.558 (repealed by 2003 Nev. Laws ch 366, § 8) (former procedure providing for penalty hearing panel procedure where defendant convicted without jury).

NRS § 175.562 (repealed by 2003 Nev. Laws ch 366, § 8) (former providing for procedure when panel of judges unable to agree on sentence)

NRS § 200.030 (2005) (providing death penalty for first degree murder only if one or more aggravating circumstances found and not outweighed by mitigating factors).

Section 200.033 of Nevada’s Revised Statutes lists the only circumstances by which murder of the first degree may be aggravated. These circumstances are:

(1) defendant was under sentence of imprisonment;

(2) defendant was previously convicted of another murder or a felony involving violence;

(3) defendant knowingly created great risk of death to more than one person with a hazardous weapon or action;

(4) murder incident to robbery, sexual assault, first degree arson, burglary, invasion of the home, or first degree kidnaping and defendant had intent to kill;

(5) murder committed to prevent lawful arrest or to escape from custody;

(6) murder for money or property;

(7) murder of peace officer or firefighter;

(8) torture or the mutilation of the victim;

(9) random and motiveless murder(s);

(10) victim less than 14 years old;

(11) murder was committed because of race, color, religion, national origin, physical or mental disability, or sexual orientation of victim;

(12) multiple first or second degree murder;

(13) victim subjected to nonconsensual sexual penetration before, during, or after the murder;

(14) murder committed under certain circumstances that threatened the safety of pupils and school employees;

(15) murder committed with the intent to commit, cause, aid, further, or conceal an act of terrorism.

The state may also introduce additional evidence that is relevant to the sentence but is not a statutory aggravating factor if it has been disclosed to the defendant before the commencement of the penalty hearing. Evidence obtained in violation of the state or federal constitution is inadmissible.

Valerio v. Crawford, 306 F.3d 742 (9th Cir. 2002) (en banc) (holding that “depravity of mind” aggravating-circumstances jury instruction was unconstitutionally vague under Godfrey v. Georgia and that state appellate court cannot cure such error under Walton v. Arizona, by applying a narrowing construction to the instruction to a de novo finding of the facts when the penalty phase factfinder has been a jury; also holding that, even if the Walton procedure were available, the Nevada Supreme Court failed to provide “close appellate scrutiny” and therefore failed to cure the error caused by the unconstitutionally vague jury instruction and the error was not harmless).

Petrocelli v. Angelone, 248 F.3d 877 (9th Cir. 2001) (holding that trial court did nor err by admitting a deferred sentence for kidnapping from Washington state in aggravation; finding the deferred sentence constituted a conviction under Nevada law).

McConnell v. State, 102 P.3d 606 (Nev. 2004) (en banc) (per curiam) (holding that the State is prohibited from selecting among multiple felonies that occur during “an indivisible course of conduct having one principal criminal purpose” and using one to establish felony murder and another to support an aggravating circumstance).

Butler v. State, 102 P.3d 71 (Nev. 2004) (en banc) (affirming two convictions for first degree murder with the use of a deadly weapon, but vacating death sentences and remanding for a new penalty hearing, the court held that the cumulative impact of an erroneous instruction regarding the limited use of “other matter” evidence (any other matter that the court deems relevant to sentence admitted against defendant during the penalty phase), taken together with other penalty hearing errors involving improper closing argument by the prosecutor, deprived defendant of a fair hearing).

State v. Bennett, 119 Nev. 589, 81 P.3d 1 (2003) (en banc) (holding in post-conviction capital habeas petition that death sentence that was based on invalid “at random and without apparent motive” aggravator must be vacated where, when considered in combination with the State's violations, particularly the State's failure to disclose evidence that defendant’s accomplice played a dominant role in the crimes, the court could not conclude beyond a reasonable doubt that the jury would have returned a verdict of death in the absence of these errors; also holding that application of procedural bars to preclude consideration of defendant's claim amounted to a fundamental miscarriage of justice, and thus, defendant was entitled to raise claim in an untimely and successive petition).

Vanisi v. State, 117 Nev. 330, 22 P.3d 1164 (2001) (en banc) (finding penalty phase evidence supported finding of aggravating circumstances of mutilation, but clarifying that language referring to “other serious and depraved physical abuse” should no longer be included in the definition of “mutilation”), cert. denied, 534 U.S. 1024 (2001). 

Leonard v. State, 117 Nev. 53, 17 P.3d 397 (2001) (en banc) (holding that prior conviction aggravator NRS § 200.033(2) (both pre and post-1997 amendment) does not require conviction to occur before date of capital offense).

Bridges v. State, 116 Nev. 752, 6 P.3d 1000 (2000) (en banc) (holding erroneous jury instruction– which failed to limit kidnapping aggravator to first degree kidnapping–harmless error, where defendant committed the murder in the course of both a first degree and second degree kidnapping; concluding there was no compelling evidence in mitigation in the case).

Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000) (en banc) (holding that postmortem mutilation falls within the statutory aggravator of mutilation; holding evidence supported finding of torture; finding instructions properly directed jurors to not consider general character evidence until they found at least one aggravating factor).

Lane v. State, 114 Nev. 299, 956 P.2d 88 (1998) (holding sentencer’s finding of both robbery and receiving money as aggravating factors in context of a robbery-murder improper as duplicative).

Greene v. State, 113 Nev. 157, 931 P.2d 54 (1997) (rejecting challenge that § 200.033(12) is unconstitutionally vague and ambiguous because it cannot be differentiated from § 200.033(2)).

Geary v. State, 112 Nev. 1434, 930 P.2d 719 (1996) (holding “random and motiveless” aggravating circumstance is not unconstitutionally vague), decision clarified on reh’g, 114 Nev. 100, 952 P.2d 431 (1998).

Flannagan v. State, 112 Nev. 1409, 930 P.2d 691 (1996) (stating one who intends to commit multiple murders within a closely related time and place engages in a course of conduct inherently hazardous to the lives of more than one person).

Domingues v. State, 112 Nev. 683, 926 P.2d 265 (requiring torture or mutilation to exceed the act of killing itself to qualify as an aggravating circumstance; defining torture as inflicting pain for revenge, extortion, persuasion, or for any sadistic purpose), cert. denied, 519 U.S. 968 (1996).

McNelton v. State, 111 Nev. 900, 900 P.2d 934 (1995) (stating aggravator “under sentence of imprisonment” does not require physical incarceration), cert. denied, 517 U.S. 1212 (1996).

Williams v. State, 110 Nev. 1182, 885 P.2d 536 (1994) (holding provision of murder statute defining child abuse as nonaccidental physical injury to child is not unconstitutionally vague).

Pertgen v. State, 110 Nev. 554, 875 P.2d 361 (1994) (holding “torture” and “deprivation of mind” unconstitutionally vague when not defined for jury).

Redmen v. State, 108 Nev. 227, 828 P.2d 395 (1992) (holding state may argue defendant’s future dangerousness even when no evidence of violence exists

independent of the charged murder; however, psychiatric opinion of defendant’s future dangerousness highly unreliable inadmissible evidence at penalty hearing), cert. denied, 506 U.S. 880 (1992), overruled on other grounds, Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995).

Riley v. State, 107 Nev. 205, 808 P.2d 551 (1991) (holding each conviction for a violent felony, pursuant to § 200.033(2), may be alleged as separate aggravating factor), cert. denied, 514 U.S. 1052 (1995).

Bennett v. State, 106 Nev. 135, 787 P.2d 797 (holding state not required to charge crime enumerated in § 200.033(4) to use crime as aggravator), cert. denied, 498 U.S. 925 (1990).

Cavanaugh v. State, 102 Nev. 478, 729 P.2d 481 (1986) (stating that aggravating circumstance involving murder committed to avoid lawful arrest does not require proof that arrest is imminent and that victim was in some way involved in effectuating that arrest; it only requires that murder be perpetrated to avoid arrest).

Gallego v. State, 101 Nev. 782, 711 P.2d 856 (1985) (holding murder committed after present capital offense can be used as aggravating factor if defendant convicted before present trial and holding that evidence of unrelated homicide not resulting in a conviction admissible as “other matter which court deems relevant to sentencing”), cert. denied, 479 U.S. 871 (1986).

Wilson v. State, 99 Nev. 362, 664 P.2d 328 (1983) (holding that § 200.033(4) crimes constitute multiple, not single, aggravators), aff’d on reh’g, 101 Nev. 452, 705 P.2d 151 (1985).

Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979) (holding mutilation aggravating factor not unconstitutionally vague).

NRS § 175.552(3) (2005) (providing that evidence secured contrary to state or federal constitution inadmissible; providing that nonstatutory aggravating factors admissible at penalty hearing if disclosed to defendant).

Section 200.035 of Nevada’s Revised Statutes enumerates seven factors of mitigation for first degree murder. They are:

Gallego v. State, 117 Nev. 348, 23 P.3d 227 (2001) (en banc) (finding no error where jury did not check any mitigating factors on special verdict form notwithstanding that evidence was presented in mitigation; declining to conclude that the jury failed to consider the mitigating evidence because it failed to fill out the verdict form in full). 

Collman v. State, 116 Nev. 687, 7 P.3d 429 (2000) (en banc) (affirming trial court’s denial of defendant’s motion to admit witness character evidence in a penalty hearing; finding proposed testimony not mitigating evidence).

Hollaway v. State, 116 Nev. 732, 6 P.3d 987 (2000) (en banc) (finding error in court’s failure to instruct appropriately on mitigation where defendant refused to present any evidence in mitigation; concluding that jury may have erroneously believed they were not required or permitted to consider trial evidence in mitigation).

Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000) (en banc) (holding that under NRS § 175.554(1) in capital penalty hearing, court must instruct jury as to mitigating circumstances alleged by defense on which evidence has been presented, and does not restrict such instructions to enumerated statutory mitigators).

Rippo v. State, 113 Nev. 1239, 946 P.2d 1017 (1997) (holding district court may instruct jury to disregard sympathy provided jury instructed to consider mitigating circumstances), cert. denied, 525 U.S. 841 (1998) (citing Riley v. State, 107 Nev. 205, 808 P.2d 551 (1991)).

A judgment and sentence of death is automatically appealed to the Nevada Supreme Court. The defendant may waive the appeal of conviction within thirty days from judgment; however, the supreme court’s sentence review is mandatory. Upon review, the supreme court must consider: (a) any errors enumerated in an appeal, (b) whether the evidence supports the finding of an aggravating circumstance or circumstances, (c) whether the sentence of death was imposed under the influence of passion, prejudice, or any arbitrary factor, and (d) whether the sentence of death is excessive, considering both the crime and the defendant. In 1985, the Nevada legislature abolished appellate proportionality review.

The supreme court has statutory authority to affirm the death sentence, set aside the sentence and remand for new hearing, or set aside the sentence and impose a sentence of life without parole. The court has affirmed death sentences after reweighing the aggravating and mitigating circumstances upon a determination that an aggravating circumstance is not supported by substantial evidence. Supreme Court Rule 250 requires the supreme court clerk to docket the appeal upon receipt of the record from the district court. The rule addresses conferencing, briefing, and hearing schedules. The court orders oral argument only when the court determines it is warranted. The rule also allows the court to remand to the district court for supplementary proceedings to assist in resolving the appeal.

Leslie v. Warden, 118 Nev. 773, 59 P.3d 440 (2002) (en banc) (rejecting argument that supreme court’s reweighing of aggravating and mitigating circumstances constituted impermissible fact-finding that deprived petitioner of right to sentencing by jury or three-judge panel; holding that the “random and without apparent motive” aggravator does not apply to unnecessary killings during a robbery and vacating sentencing of death after invalidating two of four aggravators and remanding for new penalty hearing;).

Randolph v. State, 117 Nev. 970, 36 P.3d 424 (2001) (en banc) (holding that prosecutor’s mischaracterization of reasonable doubt standard as “[y]ou have a gut feeling he’s guilty, he’s guilty,” while highly improper, was harmless error where jury instructions correctly defined reasonable doubt and district court immediately ordered incorrect argument stricken; stating that court should have also explicitly admonished the jury that prosecutor’s remark was improper and was to be disregarded), cert. denied, 537 U.S. 845 (2002).

Servin v. State, 117 Nev. 775, 32 P.3d 1277 (2001) (en banc) (holding that death penalty was excessive and instead imposing two consecutive terms of life in prison without possibility of parole where evidence that defendant was shooter was problematical, he was 16 at time of robbery and murder and was youngest of three involved in crime, his background did not include significant criminal history, he expressed remorse for his actions, and he was under the influence of methamphetamine at time of crime).

Dennis v. State, 116 Nev. 1075, 13 P.3d 434 (2000) (en banc) (discussing comparative review in the context of determining “excessiveness;” stating that inquiry may involve a consideration of whether various objective factors which the supreme court previously considered relevant to determine excessiveness in other cases, exist in the present case).

Harte v. Nevada, 116 Nev. 1054, 13 P.3d 420 ( 2000) (en banc) (holding district court did not err refusing to admit testimony from a Protestant pastor, Catholic priest and Jewish rabbi regarding their opposition to the death penalty as mitigating evidence).

Geary v. State, 115 Nev. 79, 977 P.2d 344 (1999) (en banc) (holding that district court correctly found that defendant was competent to waive right to appeal death sentence where both defendant and counsel informed court that they had communicated extensively about waiver, both appointed psychiatrists testified that defendant understood proceedings, and court thoroughly questioned defendant; despite waiver, supreme court was required to conduct mandatory review under § 177.055(2)), cert. denied, 529 U.S. 1090 (2000).

Chambers v. State, 113 Nev. 974, 944 P.2d 805 (1997) (holding that death penalty was excessive and instead imposing life imprisonment without the possibility of parole where facts suggested that defendant was intoxicated when he came upon victim burning heroin on defendant’s tools, that both parties were stabbed, and that killing resulted from overreaction and anger and was not planned in advance).

Colwell v. State, 112 Nev. 807, 919 P.2d 403 (1996) (stating that court can conduct meaningful review to determine whether death sentence was imposed arbitrarily, under influence of passion or prejudice, or was excessive, even though defendant intentionally failed to challenge evidence, failed to present mitigating evidence, and aided state in presenting its case at penalty hearing).

Canape v. State, 109 Nev. 864, 859 P.2d 1023 (1993) (finding supreme court’s decision to reweigh aggravating and mitigating circumstances on appeal does not constitute impermissible finding and is constitutional), cert. denied, 513 U.S. 862 (1994).

Kirksey v. State, 107 Nev. 499, 814 P.2d 1008 (applying procedure established in Nevada Rule of Appellate Procedure 42(a) to capital defendant choosing to waive appeal), cert. denied, 502 U.S. 989 (1991).

NRS § 177.055 (2005) (providing automatic appeal of death judgments; waiver; resentencing).

Nev. Sup. Ct. R. 250(6) (detailing docketing appeal; transmitting record; briefing schedule; extensions of time; oral argument).

Nev. Sup. Ct. R. 250(8) (setting prebriefing conferences; limited remand to district court).

Section 34.724 of Nevada’s Revised Statutes provides exclusive postconviction habeas relief for challenges to capital convictions and sentences. This statutory remedy replaces all other common law and statutory remedies previously available for challenging the validity of a conviction or sentence. The traditional habeas writ is available to inquire into the cause of imprisonment or restraint but is not available to attack the validity of a prisoner’s conviction or sentence.

NRS § 34.724 (2005) (providing postconviction habeas relief from conviction or sentence).

A postconviction petition for habeas corpus must be filed within one year after entry of judgment or supreme court remittitur following appeal. The court will accept a late petition if the delay is not the petitioner’s fault and dismissal would unduly prejudice the petitioner. A late petition may be dismissed upon a showing of prejudice unless the petition is based on previously unknown grounds or petitioner demonstrates that a fundamental miscarriage of justice occurred at trial. A rebuttable presumption of prejudice to the state is created when a petition is filed five or more years after entry of judgment or supreme court remittitur.

A postconviction habeas petition must be filed in the district court where the conviction occurred. The petition must be filed with the record of original proceedings and, if possible, assigned to the original judge or court. After reviewing the postconviction record, the judge determines whether an evidentiary hearing is required. An evidentiary hearing will not be held on a capital petition unless each issue of fact to be considered at the hearing has not been determined in any prior evidentiary hearing in a state or federal court or the prior evidentiary hearing was not a full and fair consideration of the issue. The rules of civil procedure apply in a postconviction proceeding to the extent they are consistent with the postconviction act.

Nevada law requires the court to make all reasonable efforts to expedite postconviction relief adjudications. In capital cases, the court has sixty days after submission to issue a decision.

Pelligrini v. State, 117 Nev. 860, 34 P.3d 519 (2001) (en banc) (holding that one-year time bar of § 34.726 applies to all postconviction petitions, not just to first petitions; rejecting contention that dismissal for delayed filing of second or successive petitions is governed only by laches provisions of § 34.800).

Beets v. State, 110 Nev. 339, 871 P.2d 357 (1994) (holding summary judgment not appropriate procedure in postconviction petition for habeas relief).

NRS § 34.720, et seq. (2005) (defining scope of applicable postconviction relief statute).

NRS § 34.724 (2005) (providing postconviction habeas relief from conviction or sentence).

Nevada Supreme Court Rule 250(7), which invokes limited application of the Nevada Rules of Appellate Procedure, governs procedure in capital postconviction appeals. The original trial record is not transmitted to the supreme court unless requested. In postconviction appeals, the court makes a decision without oral argument unless the supreme court orders otherwise.

A petition shall be dismissed if (1) the conviction was upon a plea of guilty and the petition is not based upon an allegation that the plea was involuntarily or unknowingly entered or that the plea was entered without effective assistance of counsel; or (2) the conviction was the result of a trial and the grounds for the petition could have been raised at trial, on direct appeal, or in a prior petition, unless petitioner alleges cause and prejudice. In Pelligrini v. State, 117 Nev. 860, 34 P.3d 519 (2001) (en banc), the court disapproved of Pertgen v. State, 110 Nev. 554, 875 P.2d 361 (1994), to the extent that Pertgen implied that special discretion attaches to procedural bars applied in capital habeas cases. The court stated in Pelligrini that special import attaches to this discretion where the death penalty has been imposed; however, the plain error rule is a rule for review on direct appeal and does not create a procedural bar exception in any habeas proceeding, capital or not.

A second or subsequent petition is barred if it fails to allege new grounds for relief or if there was an abuse of the writ by the petitioner’s failing to raise the issue in the initial postconviction relief petition. 

Once the state raises the affirmative defenses of waiver or abuse of writ, the petitioner has the burden of proving good cause and actual prejudice. The court may dismiss a petition that fails to reference any prior proceeding known to the court.

Vang v. Nevada, 329 F.3d 1069 (9th Cir. 2003) (holding in noncapital case, that because the state filed a length response in which it did not rely on procedural bar, the district court erred in sua sponte applying that defense as to three claims and that NRS § 34.810, which bars claims on collateral review if they could have been brought on direct appeal, was an independent and adequate procedural bar as to two other claims and distinguishing Valerio v. Crawford, 306 F.3d 742 (9th Cir. 2002) (en banc) on the basis that the capital nature of the sentence in that case played a pivotal role in the Nevada Supreme Court’s discretion not to apply the bar).

Pelligrini v. State, 117 Nev. 860, 34 P.3d 519 (2001) (en banc) (holding that good cause and actual prejudice is required to overcome statutory procedural bars to habeas corpus relief; reaffirming that claims of ineffective assistance of counsel brought in timely first postconviction petition for writ of habeas corpus are not subject to dismissal on grounds of waiver, regardless of whether claims could have been appropriately raised on direct appeal; holding that trial court error may be appropriately raised in a timely first postconviction petition in context of claims of ineffective assistance of counsel, but independent claims based on same error are subject to waiver bars because such claims could have been presented to trial court or raised in direct appeal).

Mazzan v. Warden, Ely State Prison, 116 Nev. 48, 993 P.2d 25 (2000) (en banc) (finding cause and prejudice and granting relief on second postconviction petition; finding prosecutor withheld exculpatory material in violation of Brady).

McNelton v. State, 115 Nev. 396, 990 P.2d 1263 (2000) (en banc) (refusing to address issues not raised in petition but raised for first time on postconviction appeal alleging ineffective assistance of counsel because petitioner failed to allege good cause and prejudice for failing to include claims in petition).

Crump v. Warden, Nevada State Prison, 113 Nev. 293, 934 P.2d 247 (1997) (holding postconviction petitioner who has counsel appointed by statutory mandate is entitled to effective assistance of that counsel; defendant can allege ineffectiveness of his postconviction counsel in subsequent postconviction relief petition, but defendant must prove cause and prejudice to overcome procedural default).

Pertgen v. State, 110 Nev. 554, 875 P.2d 361 (1994) (considering appellate claim in postconviction proceeding).

Phelps v. Director, Nevada Dep’t of Prisons, 104 Nev. 656, 764 P.2d 1303 (1988) (holding that legislature intended that the affirmative defenses of waiver or abuse of the writ must be raised by the state; the burden then falls upon the petitioner to show good cause or actual prejudice).

The trial court issues a death warrant along with the judgment of death. The warrant sets a week for the execution, between sixty and ninety days after the time of judgment. The director of the department of prisons may execute the sentence anytime within the designated week. The prison director is required to invite two doctors, the coroner, and not less than six citizens to the execution. Nevada law gives preference to representatives of the victim’s family. The law has no provision for attendance of the defendant’s family. The director of prisons is present at the execution, which is performed by lethal injection.

When a remittitur is filed in the trial court affirming a death judgment and sentence upon appeal or a postconviction relief proceeding, the clerk of the trial court may issue a new warrant ordering a new time for the execution. Additionally, the attorney general or district attorney may petition the trial court for a new warrant when the supreme court has denied appellate relief in a postconviction proceeding but has entered a stay of issuance of remittitur.

Counsel for the state is required to file written notice of any warrant of execution with the supreme court clerk and the prison director. The prison director is required to file notice of the execution date with the supreme court.

NRS § 176.345 (2005) (providing death warrant issued upon judgment of death; execution date set for within sixty to ninety days).

NRS § 176.505 (2005) (providing for court order requiring execution of judgment at specified time).

When postconviction sanity is an issue, Nevada law provides that the director of the department of prisons may allege the insanity in a petition to the state district court in the county in which the prison is located. After two doctors examine the prisoner, the court holds a hearing to determine sanity. The attorney general is required to attend the hearing. Although neither the district attorney nor the defense attorney’s presence is statutorily required, each has the right to offer evidence and cross-examine witnesses. 

If the court finds that the defendant is not sane, it stays the execution and orders the prison director to continue confining the defendant. If the prisoner regains sanity, the director notifies the court. If the court is satisfied with the defendant’s sanity, it lifts the stay and notifies the district court who issued the death sentence. The trial court then issues a new warrant for the defendant’s execution.

In Calambro v. Second Judicial Dist. Ct., 114 Nev. 961, 964 P.2d 794 (1998), cert. denied, 525 U.S. 1149 (1999), the supreme court affirmed the district court’s denial of next friend standing. In Calambro, the prison director never raised the issue of defendant’s mental capacity in a petition to the district court. Six days before defendant’s scheduled execution, Calambro’s mother petitioned the court in a postconviction habeas proceeding, as next friend, raising the issue of defendant’s mental incompetence. The supreme court upheld the district court’s findings that Calambro was competent and that he voluntarily waived his right to challenge his sentence and conviction in postconviction proceedings and affirmed the lower court’s ultimate conclusion that Calambro’s mother consequently lacked standing as next friend to challenge her son’s sentence.

The prison director may also petition the district court where the prison is located if a death-sentenced inmate is pregnant. Upon a determination by three physicians that the defendant is pregnant, the death sentence is stayed until the defendant is no longer pregnant.

Nevada Supreme Court:

Calambro v. Second Judicial Dist. Ct., 114 Nev. 961, 964 P.2d 794 (1998) (holding capital prisoner’s mother lacked standing to assert the absence of sanity to be executed because defendant, who was found competent, stated he did not wish to challenge his sentence), cert. denied, 525 U.S. 1149 (1999).

A death sentence is automatically stayed upon appeal. The first petition challenging the defendant’s conviction or sentence automatically stays the execution during the pendency of the petition and appeal. However, after the first petition, a stay of execution to pursue collateral postconviction relief is granted only after the defendant (1) files a petition, (2) establishes a compelling basis for the stay, and (3) gives notice to the state. The trial judge may enter a stay of execution to pursue an investigation into the defendant’s sanity or pregnancy. The Board of Pardons Commissioners may also enter a stay.

Defense counsel must file any motion for stay of execution in the supreme court promptly upon learning the grounds to be asserted in the motion. The supreme court may impose sanctions when defense counsel knowingly delays filing the motion. Counsel for the state must notify the supreme court of any stay of execution issued by any court other than the supreme court.

NRS § 34.820 (2005) (providing for mandatory stay of execution for first postconviction petition).

NRS § 34.726 (2005) (providing no stay of execution during one-year period to file postconviction petition unless petition filed and compelling basis for stay).

NRS § 176.486 (2005) (permitting stay of execution after postconviction petition filed only after notice provided to state).

Nev. S. Ct. R. 250(10)(c) (providing for notice to supreme court of entry of stay of execution).

Nev. S. Ct. R. 250(10)(d) (providing for duty of defense counsel to promptly notice supreme court of intent to file motion to stay execution).

The State Board of Pardons Commissioners has sole authority to commute a death sentence. The Board is composed of the governor, the justices of the state supreme court, and the attorney general. However, the 1995 Nevada legislature precluded commutation of death sentences for persons convicted of capital murder after July 1, 1995, “to a sentence that would allow parole.”

Sonner v. State, 114 Nev. 321, 955 P.2d 673 (1998) (providing jury instruction to comport with new Nevada Revised Statutes § 213.085 provision; holding instruction shall not discuss modification of sentences by the pardons board).

Colwell v. State, 112 Nev. 807, 919 P.2d 403 (1996) (holding Nevada Revised Statutes § 213.085 does not unconstitutionally deny defendant chance at clemency; statute merely limits power of commutation).