KEVIN JAMES LISLE v. E.K. MCDANIEL

Filing 292

ORDER. IT IS HEREBY ORDERED that 273 Petitioner's Motion for Evidentiary Hearing is DENIED.IT IS FURTHER ORDERED that 197 Petitioner's Third Amended Petition for Writ of Habeas Corpus is DENIED.IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter judgment accordingly. Signed by Judge James C. Mahan on 9/8/2021. (Copies have been distributed pursuant to the NEF - MR)

Case 2:03-cv-01005-JCM-DJA Document 292 Filed 09/08/21 Page 1 of 36

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEVIN JAMES LISLE,
Petitioner,

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ORDER

v.

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Case No. 2:03-cv-01005-JCM-DJA

WILLIAM GITTERE, et al.,
Respondents.

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I.

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Introduction
This action is a petition for a writ of habeas corpus by Kevin James Lisle, a

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Nevada prisoner sentenced to death. The case is fully briefed and before the Court for

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resolution of Lisle’s motion for an evidentiary hearing and adjudication of the merits of

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the claims remaining in his third amended habeas petition. The Court will deny Lisle’s

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motion for an evidentiary hearing, deny Lisle’s third amended habeas petition, and grant

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Lisle a certificate of appealability with respect to certain issues.

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II.

Background

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At issue in this case, are Lisle’s conviction and sentence for the murder of

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Kip Logan in Las Vegas on October 22, 1994. In its opinion on Lisle’s direct appeal, the

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Nevada Supreme Court described the factual background as follows:

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On the evening of October 22, 1994, Joey Gonzales and Kip Logan
bought two beers and then headed towards Logan’s girlfriend’s house. As
Logan drove on U.S. Interstate Highway 95, a white van approached his
Mustang. Gonzales observed the van’s front passenger stick his head and
arm out of the window and scream at them. Gonzales told Logan, “Let’s
just go,” and took a swig of his beer. At that moment, Gonzales heard the
driver-side window break. He turned and saw Logan slumped over the
steering wheel. Gonzales grabbed the steering wheel and stopped the
Mustang.

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Metro police officer Steve Borden and his partner, Mike Carreia,
arrived as Gonzales was pulling Logan out of the Mustang. Officer Borden
saw that Logan had been shot in the head. He checked Logan for vital
signs, and saw none.

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Gonzales told Borden that he saw three males in an Aerostar-type
van, Hispanic or white, with shaved heads. Gonzales said that the shooter
had a goatee, and that the back-seat passenger appeared more white.
On the next day, a medical examiner determined that Logan had
died of a gunshot wound to his head. Fragments of a bullet consistent with
a .357 Magnum were removed from Logan’s head.
On the same day, John Melcher was arrested. He denied being in
the van on the previous night.
On October 27, 1994, Anthony Evans was arrested. That evening,
he gave a statement that Melcher was in the front passenger seat of the
van, and that the shot came from the front passenger side. He said that
after the shooting, “Shotgun” (Melcher) disposed of the gun.
On October 31, 1994, the defendant, Kevin James Lisle, was
arrested.

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On April 6, 1995, Evans agreed to testify against Lisle and Melcher
in exchange for the State reducing his charges to accessory after the fact
of murder. Evans agreed to testify both in the Logan case and in another
homicide case involving Lisle (“the Lusch case”). On May 23, 1995, Evans
was released from custody.
Sometime after Evans agreed to cooperate with the State, Melcher
sought the same deal. On July 24, 1995, he was interviewed by
detectives. His charges were later reduced to accessory after the fact of
murder. His case was transferred to juvenile court and he received
probation.

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On October 9, 1995, an amended indictment was filed charging
Lisle with one count of murder with use of a deadly weapon and one count
of attempted murder with use of a deadly weapon. A jury trial commenced
on October 16, 1995.

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Guilt phase

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At trial, Evans testified that on the night of October 22, 1994, he,
Melcher, and Lisle were at Larry Prince’s apartment. Evans, Melcher, and
Lisle decided to borrow a white van from Prince, and Melcher picked up
the keys to the van. As Lisle got into the front passenger seat of the van

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he said, “I hope nobody messes with us tonight, because I’m drunk and I
do crazy things when I’m drunk.” Lisle was holding a .357 handgun.
Evans testified that Melcher drove the van, Lisle was in the front
passenger seat, and he was in the rear passenger seat. Lisle was hanging
out the window and throwing gang signs at cars. Evans heard Lisle tell
Melcher, “speed up,” and the van pulled up to a Mustang. Evans observed
Lisle pull out his gun and point it out of the window, and then Evans heard
a gunshot and saw sparks fly. Evans then saw the Mustang pull over to
the side of the road, saw that the Mustang’s driver-side window was
shattered, and saw the driver laying against the steering wheel. Evans
stated that he did not know whether there was anyone else in the Mustang
besides the driver. Evans testified that after the gunshot, Lisle directed
Melcher to get off the freeway and to stop the van. Lisle then disposed of
the gun.
On redirect, Evans testified that he was a member of the North
Hollywood Boyz, and Lisle was a member of the Westside Lompoc, both
California gangs. He stated that he had known Lisle for two years and
Melcher for two months. He stated that Melcher was not a gang member.
Evans said that gang members have a rule “not to tell on none of your
friends.” He testified that he was afraid of Lisle.
Prince testified that while living in Las Vegas, he became familiar
with Evans, Melcher and Lisle. He stated that he had rented a van for their
use, and that Lisle drove it more than anyone else. Prince admitted that he
testified in this case pursuant to a plea bargain on a drug possession
charge.
The grand jury testimony of Tom Foster was read. On the night of
the shooting, Foster observed three males exit from a white van. Foster
testified that he was positive that Lisle was the driver of the van. Foster
identified Melcher as a passenger.
Detective Diane Falvey testified that on the day of Evans’ arrest he
had indicated that Melcher was the shooter, but she suspected he was not
giving the right information. Detective Donald Tremel testified that when
Melcher was arrested, Melcher told him that Lisle was driving the van.
Melcher testified that he had no gang affiliation. He stated that he
did things for Lisle, such as “drive the car around,” in exchange for clothes
and money. Melcher stated that on the evening of October 22, 1994, he
was driving the white van on the freeway.
Melcher testified that while he was in custody, he saw Lisle at the
detention center. Lisle told him “that he looked Logan in the eye before he
killed him and he enjoys it and that after I do my first one I will see what he
is talking about.” Lisle also told him that the police believed Melcher was
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the shooter, and told him to take the blame for the shooting. Melcher
stated that he was aware of the gang code of conduct, “if you snitch, you
die,” and that he had been afraid of retaliation.
Melcher also testified that he could not grow a beard.
Sophia Martinez testified that at approximately 3:00 a.m. on
October 23, 1994, Lisle told her that he had done something crazy, and to
watch the news. At that time, Lisle had a mustache but no hair on his chin.
She had never seen Melcher with a mustache or a goatee. She saw Lisle
with a shaved face later that day.

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Christopher Barnes, testifying for the defense, stated that after
hearing about the shooting he contacted the police, because he had been
assaulted by individuals of a similar description. He identified a
photograph of Melcher as one of his assailants. However, he
acknowledged that although he had believed his assailant had lighter skin
than himself, Melcher’s skin was darker than his. He was shown a photo
of Lisle but did not recognize him as having been involved in the incident.
He described his assailant as having “a little bit of rough around the chin
and the moustache,” what he would call a goatee.
David Hermanson, Melcher’s cellmate, stated that Melcher had
admitted to him that he was trying to shoot the passenger but missed and
hit the driver.

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On October 20, 1995, the jury returned a verdict of guilty for both
the murder and the attempted murder charges.
Penalty phase

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On October 24, 1995, the State filed its intent to seek the death
penalty based on the aggravating circumstance that the murder was
committed by a person who knowingly created a risk of death to more than
one person by means of a weapon, device, or course of action that would
normally be hazardous to the lives of more than one person. The district
court granted Lisle’s motion for a mistrial on attempted murder, but denied
a motion for mistrial for the murder charge.
During the penalty phase, several witnesses implicated Lisle in the
Lusch case.
On October 26, 1995, the jury returned a sentence of death. On
February 1, 1996, the judgment of conviction and a warrant of execution
were filed.

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Lisle v. State, 113 Nev. 540, 544–47, 937 P.2d 473, 475–77 (1997) (order filed as Exh.

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73 (ECF No. 219-12)).

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In a separate case in this Court, Case No. 2:03-cv-1006-MMD-DJA, Lisle petitions

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for a writ of habeas corpus with respect to his conviction and death sentence for the Lusch

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murder.

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In this case, regarding the Logan murder, the judgment of conviction was entered

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on February 1, 1996. See Judgment of Conviction, Exh. 67 (ECF No. 219-6). Lisle

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appealed to the Nevada Supreme Court, and the Nevada Supreme Court affirmed on

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April 24, 1997. See Appellant’s Amended Opening Brief, Exh. 70 (ECF No. 219-9); see

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also Lisle, 113 Nev. 540, 937 P.2d 473. The Nevada Supreme Court denied Lisle’s

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petition for rehearing but issued an order clarifying its ruling on one issue. See Order

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Denying Rehearing, Exh. 75 (ECF No. 219-14); Lisle v. State, 114 Nev. 221, 954 P.2d

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744 (1998). Lisle petitioned the United States Supreme Court for certiorari; the petition

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was denied on October 5, 1998. See Opinion, Exh. 76 (ECF No. 219-15); Lisle v. State,

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525 U.S. 840 (1998).

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Lisle filed a pro se petition for writ of habeas corpus in the state district court on

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November 9, 1998. See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 78

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(ECF No. 219-17). Counsel was appointed, and, with counsel, Lisle filed a supplement

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to his petition on July 26, 2000. See Supplemental Points and Authorities, Exh. 84 (ECF

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No. 219-23). The state district court denied the petition on October 30, 2000. See

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Findings of Fact, Conclusions of Law and Order, Exh. 91 (ECF No. 220). Lisle

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appealed, and the Nevada Supreme Court affirmed on August 21, 2002. See

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Appellant’s Opening Brief, Exh. 99 (ECF No. 220-8); Order of Affirmance, Exh. 103

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(ECF No. 220-12).

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Lisle initiated this action by filing a petition for writ of habeas corpus in this Court

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on August 20, 2003 (ECF No. 1). Lisle’s original petition was signed on his behalf by

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counsel. However, Lisle requested appointment of counsel by the Court, and the Court

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appointed the Federal Public Defender for the District of Nevada (FPD) to represent him
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(ECF Nos. 2, 4, 6). Lisle then filed a motion for leave to conduct discovery (ECF No.

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41), and discovery proceedings ensued.

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On April 15, 2008, Lisle filed a first amended habeas petition (ECF No. 122). On

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June 2, 2008, Lisle filed a motion for leave to file a second amended petition (ECF No.

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128); that motion was granted on July 8, 2008, and the second amended petition was

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filed on that date (ECF Nos. 131, 132).

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On April 15, 2008, when he filed his first amended petition, Lisle filed a motion for

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stay and abeyance (ECF No. 120). Respondents did not oppose that motion, and on

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July 8, 2008, the case was stayed to allow Lisle to exhaust claims in state court (ECF

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No. 131).
On August 25, 2008, Lisle filed a second state habeas petition. See Petition for

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Writ of Habeas Corpus (Post-Conviction), Exh. 108 (ECF Nos. 220-17, 220-18); see

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also Amended Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 121 (ECF

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Nos. 221-2, 221-3, 221-4); Second Amended Petition for Writ of Habeas Corpus (Post-

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Conviction), Exh. 136 (ECF Nos. 221-26, 221-27, 221-28). The state district court

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dismissed that petition on procedural grounds on November 20, 2009. See Findings of

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Fact, Conclusions of Law and Order, Exh. 140 (ECF No. 221-32). Lisle appealed, and

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the Nevada Supreme Court affirmed on June 25, 2015. See Order, Exh. 169 (ECF No.

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222-23); Lisle v. State, 351 P.3d 725 (Nev. 2015). The Nevada Supreme Court denied

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rehearing on October 22, 2015. See Order Denying Rehearing, Exh. 173 (ECF No. 222-

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27). The United States Supreme Court denied certiorari on May 16, 2016. See Letter,

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Exh. 179 (ECF No. 222-33).

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The stay of this case was lifted, upon a motion by Lisle, on June 22, 2016 (ECF

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No. 191). On October 21, 2016, Lisle filed a third amended petition for writ of habeas

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corpus (ECF No. 197), which is now his operative petition. The Court reads Lisle’s third

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amended petition to assert the following claims:

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1.
Lisle’s conviction and death sentence violate the federal
constitution “because, in light of new evidence not presented at trial, it is
more likely than not that no reasonable juror, properly instructed, would
have found him guilty beyond a reasonable doubt … and/or he can make
a truly persuasive demonstration that he is factually innocent of the
offense.” Third Amended Petition (ECF No. 197), pp. 14–34.
2.
Lisle’s conviction and death sentence violate the federal
constitution “because prosecutorial misconduct and the State’s failure to
disclose material exculpatory and impeachment evidence deprived Mr.
Lisle of fundamentally fair proceedings.” Id. at 35.
A.
“The State failed to disclose material impeachment
evidence and failed to correct false testimony.” Id.
1.
“The State failed to disclose exculpatory
and impeachment materials regarding John
Melcher.” Id. at 36–44.
2.
“The State failed to disclose
impeachment materials regarding Larry
Prince.” Id. at 44–49.
3.
“The State failed to disclose
impeachment evidence regarding Adam
Evans.” Id. at 49–50.
4.
“The State failed to disclose the
existence of cash payments to its witnesses.”
Id. at 50–53.
5.
“The prosecutor misled trial counsel by
claiming that his office maintained an open file
policy.” Id. at 54–56.
B.
“The State committed misconduct throughout the
trial.” Id. at 56.
1.
“The State made improper comments
and argument during its opening statement.”
Id. at 57–58.
2.
“The State committed misconduct during
its closing argument.” Id. at 58.
a.
“The State improperly
aligned itself with the jury.” Id. at
58–59.
b.
“The State improperly
vouched for the credibility of Mr.
Evans and Mr. Melcher.” Id. at
59–62.

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c.
“Improperly commenting
upon the lack of mitigating
evidence and the role of
mitigating circumstances.” Id. at
62–63.
3.
Lisle’s conviction and death sentence violate the federal
constitution “because the State committed prosecutorial misconduct in
presenting testimony that improperly bolstered its witnesses; the trial court
erred in failing to strike that testimony; and trial counsel provided
ineffective assistance in failing to object to that testimony, move to strike
that testimony, and move for a mistrial following the jury’s exposure to that
testimony.” Id. at 65–77.
4.
Lisle’s conviction and death sentence violate the federal
constitution “because the prosecutor prevented the defense from speaking
with John Melcher and the trial court did not afford petitioner a hearing on
his allegations.” Id. at 78–82.
5.
Lisle’s conviction and death sentence violate the federal
constitution “because Mr. Lisle’s attorneys were constitutionally ineffective
at all stages of his state-court proceedings.” Id. at 83.
A.
“Trial counsel were ineffective for failing to present
available mitigating evidence at the penalty phase.” Id. at
83–129.
B.
“Trial counsel performed ineffectively during the guilt
phase.” Id. at 129.
1.
“Failure to investigate and present
evidence of actual innocence of first-degree
murder.” Id.at 129–32.
2.
“Ineffective litigation of gang allegations
in the guilt phase.” Id. at 132–42.
3.
“Ineffective cross-examination of Larry
Prince.” Id. at 142–55.
4.
“Ineffective cross-examination of John
Melcher.” Id. at 155–57.
5.
“The institutional lack of resources at the
office of the Clark County Public Defender.” Id.
at 158–59.
C.
“Trial counsel failed to object to prosecutorial
misconduct.” Id. at 159–60.
D.
“Trial counsel failed to object to erroneous jury
instructions and failed to request necessary jury
instructions.” Id. at 160–61.

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6.
Lisle’s conviction and death sentence violate the federal
constitution “due to the invalid instructions defining first-degree murder
which removed the distinguishing elements of the offense from the jury’s
consideration and rendered the instructions unconstitutionally vague.” Id.
at 163–73.
7.
Lisle’s death sentence violates the federal constitution “because the
knowing risk of death aggravating circumstance has been
unconstitutionally applied to Mr. Lisle’s case.” Id. at 174–80.
8.
Lisle’s conviction and death sentence violate the federal
constitution “because cumulative errors in Mr. Lisle’s proceedings
deprived him of fundamental fairness throughout the proceedings.” Id. at
181–82.
9.
Lisle’s conviction and death sentence violate the federal
constitution “due to direct appeal counsel’s failure to provide reasonably
effective assistance.” Id. at 183–87.
10.
Lisle’s conviction and death sentence violate the federal
constitution “because the trial court committed numerous substantial and
injurious errors during the guilt- and penalty-phase proceedings.” Id. at
188.
A.
“The trial court erroneously allowed the State to
present prejudicial evidence of an unadjudicated homicide.”
Id. at 188–90.
B.
“The trial court erroneously admitted hearsay
evidence in violation of Lisle’s confrontation rights.” Id. at
190–95.
C.
“The trial court erred by failing to continue Mr. Lisle’s
arraignment despite the fact that he had not been given a
timely copy of the grand jury proceedings.” Id. at 195–96.
D.
“The State failed to provide Mr. Lisle with adequate
notice of the grand jury proceedings.” Id. at 197–201.
11.
Lisle’s conviction and death sentence violate the federal
constitution “because the trial court erroneously instructed the jury in the
guilt- and penalty-phase proceedings.” Id. at 202.

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A.

“The reasonable doubt instruction.” Id. at 202–04.

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B.

“Guilt phase instructions.” Id. at 204.

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1.
“The premeditation and deliberation
instruction.” Id. at 204.

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2.

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C.

“The malice instructions.” Id. at 204–07.

“Penalty phase instructions.” Id. at 207.
1.
“The anti-sympathy instruction.” Id. at
207–08.
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2.
“The limited use of prior bad act
evidence and failure to instruct the jury that the
other murder offense had to be found beyond a
reasonable doubt.” Id. at 208–12.
3.
“The failure to require that mitigation
evidence must be outweighed by statutory
aggravating circumstances beyond a
reasonable doubt.” Id. at 212–13.
12.
Lisle’s conviction and death sentence violate the federal
constitution “because systemic errors in jury selection infected the voir dire
proceedings.” Id. at 214.
A.
“The State used peremptory challenges in a racially
discriminatory manner.” Id. at 215–21.
B.
“The trial court failed to remove for cause biased
jurors Koch, Mode, and Chandler from the venire.” Id. at
221–22.
C.
“The trial court improperly limited the voir dire
proceedings.” Id. at 223–25.
D.
“The trial court erred by limiting voir dire to questions
not contained in the written questionnaires in order to rush
the voir dire proceedings.” Id. at 225–27.
E.
“The trial court erred in conducting voir dire on the
unconstitutional theory that a prospective juror had to be
able to ‘equally consider’ death as a punishment.” Id. at 227–
29.
F.
“The trial court failed to record critical parts of voir
dire.” Id. at 230–31.
G.
“Mr. Lisle was deprived of the effective assistance of
counsel during the voir dire proceedings.” Id. at 231–32.
1.
“Trial counsel failed to rehabilitate
death-scrupled jurors.” Id. at 232–35.
2.
“Trial counsel failed to object for cause
to biased jurors.” Id. at 235–38.
3.
“Trial counsel were ineffective for using
peremptory strikes to remove biased jurors
who should have been challenged for cause.”
Id. at 238–40.
4.
“Trial counsel ineffectively litigated the
Batson issue.” Id. at 240–41.

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5.
“Trial counsel were ineffective in failing
to object to the misleading voir dire and
question on the questionnaire regarding ‘equal
consideration” of the death penalty.” Id. at 241.
13.
Lisle’s conviction and death sentence violate the federal
constitution “due to the failure of the Nevada Supreme Court to conduct
fair and adequate appellate review.” Id. at 243.
A.
“The Nevada Supreme Court’s mandatory review of
death sentences for arbitrariness is itself arbitrary and
capricious.” Id. at 243–46.
B.
“The Nevada Supreme Court’s appellate review in
Lisle’s case was arbitrary and capricious.” Id. at 246–50.
14.
Lisle’s conviction and death sentence violate the federal
constitution “because severe mental illness rendered Mr. Lisle
incompetent to stand trial.” Id. at 251–60.
15.
Lisle’s conviction and death sentence violate the federal
constitution “because he may become incompetent to be executed.” Id. at
261.
16.
Lisle’s conviction and death sentence violate the federal
constitution “because severe mental and physical illness rendered him
incompetent” during his proceedings, and “Lisle’s maltreatment while
incarcerated results in his execution being unconstitutional.” Id. at 262–84.
17.
Lisle’s conviction and death sentence violate the federal
constitution “because Mr. Lisle was forced to wear a stun belt and
shackles during the guilt and penalty phases of his trial.” Id. at 285–87.
18.
Lisle’s federal constitutional rights were violated “because Mr.
Lisle’s capital trial, sentencing, and review on direct appeal were
conducted before state judicial officers whose tenure in office was not
during good behavior but whose tenure was dependent on popular
election.” Id. at 288.
A.
“The system of electing judges in the State of Nevada
carries an unconstitutional risk of bias. Id. at 288–96.
B.
“The actions of the trial court in Lisle’s case
demonstrate an unconstitutional risk of judicial bias.” Id. at
296–300.
19.
Lisle’s federal constitutional rights were violated “because
Mr. Lisle’s attorneys failed to object to the admission of evidence during
the penalty phase of his trial which recounted events that did not result in
a criminal conviction and that occurred before Mr. Lisle reached the age of
eighteen.” Id. at 301–04.
20.
Lisle’s death sentence is invalid under the federal constitution
“because the Nevada capital punishment system operates in an arbitrary
and capricious manner.” Id. at 305–08.
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21.
Lisle’s death sentence is invalid under the federal constitution
“because his execution by lethal injection violates the constitutional
prohibition against cruel and unusual punishments and his rights under the
First and Fourteenth Amendments.” Id. at 309.
A.
“Lethal injection is unconstitutional in all
circumstances.” Id. at 309–18.
B.
“Lethal injection in Nevada is unconstitutional.” Id. at
318–35.
On March 20, 2017, respondents filed a motion to dismiss (ECF No. 216). On

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August 14, 2017, Lisle’s counsel--the FPD—filed an ex parte motion to withdraw or for

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appointment of separate counsel (ECF No. 243 (sealed)), informing the court that they

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had a conflict with respect to a potential argument for equitable tolling in response to

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Respondents’ assertion of the statute of limitations defense. The Court denied the

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FPD’s motion to withdraw but appointed separate counsel to assert the equitable tolling

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argument (ECF Nos. 246, 247 (sealed)). Lisle’s separate counsel filed a memorandum

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of supplemental argument (ECF No. 252). The Court ruled on the motion to dismiss on

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July 2, 2018. See Order entered July 2, 2018 (ECF No. 260). The Court granted the

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motion in part and denied it in part; the Court dismissed all of Lisle’s claims except:

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Claim 2B2a; Claim 2B2b; the claims in Claim 5C that trial counsel were ineffective for

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failing to object to the prosecutorial misconduct alleged in Claims 2B2a and 2B2b; Claim

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7; Claim 8; Claim 10A; Claim 15; and Claim 21B. See id.

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Respondents filed an answer on November 15, 2018, responding to Lisle’s

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remaining claims (ECF No. 263). On April 26, 2019, Lisle filed a reply (ECF No. 271),

22

along with a motion for an evidentiary hearing (ECF No. 273). On July 10, 2019,

23

Respondents filed a response to Lisle’s reply (ECF No. 276), and a response to Lisle’s

24

motion for an evidentiary hearing (ECF No. 277). On July 30, 2019, Lisle filed a reply to

25

the response to his motion for an evidentiary hearing (ECF No. 278).

26

The Court stayed this action on October 7, 2020, pending the resolution of a

27

motion by Lisle in his other federal habeas action, Case No. 2:03-cv-1006-MMD-DJA, to

28

waive further proceedings and voluntarily dismiss that action (ECF No. 281). Lisle
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ultimately withdrew that motion, and on November 30, 2020, the stay of this action was

2

lifted (ECF No. 283).
On January 29, 2021, Lisle filed a motion for reconsideration (ECF No. 288),

3
4

requesting that the Court reconsider the order entered July 2, 2018 (ECF No. 260), in

5

light of Ross v. Williams, 950 F.3d 1160 (9th Cir. 2020) (en banc). The Court denied the

6

motion for reconsideration on May 21, 2021 (ECF No. 291).
The case is now before the Court for resolution of Lisle’s motion for evidentiary

7
8

hearing and adjudication of his remaining claims on their merits.

9

III.

Discussion

10

A.

11

Because this action was initiated after April 24, 1996, the amendments to

12

28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act

13

(AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Van Tran v. Lindsey,

14

212 F.3d 1143, 1148 (9th Cir. 2000), overruled on other grounds by Lockyer v. Andrade,

15

538 U.S. 63 (2003). 28 U.S.C. § 2254(d) sets forth the primary standard of review under

16

the AEDPA:

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22
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Standard of Review

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim ―
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.

24

28 U.S.C. § 2254(d). A state court decision is contrary to clearly established Supreme

25

Court precedent, within the meaning of 28 U.S.C. § 2254(d)(1), “if the state court

26

applies a rule that contradicts the governing law set forth in [the Supreme Court’s]

27

cases” or “if the state court confronts a set of facts that are materially indistinguishable

28

from a decision of [the Supreme Court] and nevertheless arrives at a result different
13

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from [the Supreme Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v.

2

Taylor, 529 U.S. 362, 405–06 (2000)). A state court decision is an unreasonable

3

application of clearly established Supreme Court precedent, within the meaning of

4

28 U.S.C. § 2254(d)(1), “if the state court identifies the correct governing legal principle

5

from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts

6

of the prisoner’s case.” Lockyer, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The

7

“unreasonable application” clause requires the state court decision to be more than

8

incorrect or erroneous; the state court’s application of clearly established law must be

9

objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409). The analysis under

10

section 2254(d) looks to the law that was clearly established by United States Supreme

11

Court precedent at the time of the state court’s decision. Wiggins v. Smith, 539 U.S.

12

510, 520 (2003).

13

The Supreme Court has instructed that “[a] state court’s determination that a

14

claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

15

disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562

16

U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

17

Supreme Court has also instructed that “even a strong case for relief does not mean the

18

state court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S.

19

at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (AEDPA standard is “a

20

difficult to meet and highly deferential standard for evaluating state-court rulings, which

21

demands that state-court decisions be given the benefit of the doubt” (internal quotation

22

marks and citations omitted)).

23

Where the state court summarily denied a claim without discussion of the claim,

24

a presumption exists that the state court adjudicated the claim on the merits, unless

25

“there is reason to think some other explanation for the state court’s decision is more

26

likely.” Harrington, 562 U.S. at 99–100. In that case, a reviewing federal court “must

27

determine what arguments or theories supported or ... could have supported, the state

28

court’s decision; and then it must ask whether it is possible fairminded jurists could
14

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disagree that those arguments or theories are inconsistent with the holding in a prior

2

decision of [the Supreme] Court.” Id. at 102.

3

B.

Claims 2B2a, 2B2b and 5C

4

In Claims 2B2a and 2B2b, Lisle claims that his federal constitutional rights were

5

violated because of prosecutorial misconduct in the State’s closing arguments, because

6

the prosecution improperly aligned itself with the jury (Claim 2B2a) and because the

7

prosecution improperly vouched for the credibility of witnesses Anthony Evans and John

8

Melcher (Claim 2B2b). Third Amended Petition (ECF No. 197), pp. 58–62. In the

9

remaining part of Claim 5C, Lisle claims that his trial counsel were ineffective for failing

10

to object to this alleged prosecutorial misconduct. Id. at 159–60; see also Order entered

11

July 2, 2018 (ECF No. 260), pp. 34–36.

12

Lisle claims, in Claim 2B2a, that the prosecutor improperly aligned himself with

13

the jury in his closing argument in the guilt phase of Lisle’s trial by repeatedly using

14

plural pronouns such as “we” and “us.” See Third Amended Petition (ECF No. 197),

15

pp. 58–59. Lisle points to the following passage from the prosecution’s guilt-phase

16

closing argument:

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I don’t, like I said, [sic] we ought to spend a lot of time discussing
the gang issue because I don’t think it’s anything that any of us could fully
understand anyway. None of us are in gangs. None of us have lived the
gang lifestyle. If you all know people in gangs and you know something
commonsensical about it, then that’s fine, but don’t speculate anything
about games—gangs, excuse me.

21

See id. (quoting Trial Transcript, October 19, 1995, Exh. 40, p. 121 (ECF No. 218-5,

22

p. 122)) (emphasis and “[sic]” as in quotation in third amended petition). Lisle also

23

claims that the prosecutor improperly aligned himself with the jury in rebuttal argument

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in the penalty phase of the trial, in the following argument:

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26
27
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What mitigation could they possibly put in front of you that would
[outweigh] that? The things that you’ve heard, the excuses for who this
person has become, and that’s all it is. Is that what they’re trying to do?
Well, let’s help them out here. Mitigation, and I know some of you
can’t see this, the picture of Kevin Lisle and his sister, I don’t believe that
has been shown to you before. The picture of a little boy being put in a
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corner and punished assumably for having done something wrong. A
picture of a child who we were told was brutally treated by having urine
filled diapers pulled over his head, you tell me, does it look a little playful in
this picture which was saved over the years?
That is what we have in front of us which forms the genesis of the
mitigation, the poor Kevin, the it’s somebody else’s fault that you did what
you did. And what do we have on the other side of that coin? We have the
two dead bodies that that person caused. That man sitting over there—
excuse me, in the chair between the two lawyers. And they want mercy.
They want mercy for an individual who has done that?

7

See Third Amended Petition (ECF No. 197), p. 59 (quoting Trial Transcript, October 25,

8

1995, Exh. 47, pp. 346–47 (ECF No. 218-12, pp. 148–49)) (first two paragraphs added

9

for context (emphasis and correction added); emphasis in third paragraph as in third

10

amended petition).

11

Lisle also claims that the prosecutor improperly aligned himself with the jury in

12

rebuttal argument in the penalty phase of the trial, in making the following argument:

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14
15

And your accountability has got to take note of that man’s
responsibility. Not yours. There is only one human being in this world that
causes us to be here today doing this terrible thing [that] we have to do.
And his name is Kevin Lisle.

16

See Third Amended Petition (ECF No. 197), p. 58 (quoting Trial Transcript, October 25,

17

1995, Exh. 47, p. 350 (ECF No. 218-12, p. 152)) (first two sentences added for context

18

(emphasis and correction added)).

19

In Claim 2B2b, Lisle claims that the prosecution improperly vouched for two of its

20

witnesses, Anthony Evans and John Melcher, in the following passage from the

21

prosecution’s closing argument in the guilt phase of the trial:

22

25

Now, I’ll leave the bulk of Adam [Evans’s] and John’s [Melcher’s]
testimony to Mr. Seaton, but one thing I do want to talk about is their
deals, quote, unquote, that they got. The defense harped a lot on the
deals that Adam and John got. And it kind of relates back to when I was
saying that the accomplice jury instruction is not applicable here. You look
at it from what Adam and John did that night and think about what they
were really guilty of [sic].

26

See Third Amended Petition (ECF No. 197), p. 60 (quoting Trial Transcript, October 19,

27

1995, Exh. 40, p. 132 (ECF No. 218-5, p. 133)) (entire paragraph included for context

28

(corrections as in third amended petition)). Lisle claims that the other prosecutor,

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Seaton, then improperly vouched for Evans and Melcher in making the following

2

arguments in his rebuttal argument:

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This case is remarkably easy. It really boils down very simply who
was in the passenger seat. Who did the shooting? Goatees and bald
heads and looking left and everything else aside, what you folks do as a
jury is the opposite side of the coin of what the judge does. He decides the
law. He read to you the instructions. You decide the facts. He doesn’t get
to say anything about the facts. We don’t get to say anything about the
facts except to present them as best we can. You and the words of the law
are the sole arbiters of the facts. Nobody can take that away from you.
And that’s why that witness chair is up there and that is why Adam Evans
and John Melcher, two kids who have been ridiculed here in this
courtroom this afternoon, sat in this chair so that you could observe them.
He says it’s easier to sit in that chair than that chair. Well, from a
consequences point of view perhaps so, but can you imagine at age 14
and 16, that area of age, coming in here in front of all of us adults and
saying the things that you gotta say. Particularly—well, that creates a fear
among any witness and you probably shared it to some limited extent
when you were witnesses and we asked you questions and you had to
answer them, you were under oath, you just sat in a different chair. Think
of the 14-year-old who’s got to sit in that chair in front of we adults and do
that.
They talk a lot about negotiations. Let’s get one thing straight right
now. There was one person in this courtroom that had to do with all of
those negotiations and he’s talking to you right now. I was that person and
that pretty well came out. Think of the case as it started. A van has had a
shot come out of it and kills a young boy in a van—in a Mustang. It comes
to light who the three people are who occupy that van and yet there is not
certainty about who the person was who did the shooting. Probably the
best thing that is known and this admittedly is using hindsight, is that
Adam Evans is the one who didn’t have anything to do with it. Never,
except for this charade of him calling himself a killer if that’s what he did,
has anyone pointed the finger at Adam Evans and said you were the
shooter and we are accusing you of that. Didn’t happen.
That is who the District Attorney’s office as presented by me at the
time went to and talked to first. Mr. Skupa told me the one interest that I
have, that the District Attorney’s office had was who was the shooter. I
think we probably all would agree in this room that there was one shooter
and two people who were surprised, but who aided afterwards. Those
people, those two people are not guilty of any crime of murder. And it
would be morally reprehensible to take them to trial once that is learned,
which is just what happened in this case.
Adam Evans knew that he had to tell a story to me that comported
with the facts, that lined up with what we already knew, and he didn’t know
all of what we already knew. And the evidence shows that the State of
Nevada came away satisfied that he had done that and that he had given
a true story. And that now we can proceed with the case in a little different
light. He would be removed from it because he was one of the two people
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who it would be morally repugnant for us to go after if things are as we
suspect.
He in that statement to the officers and his conversations with me
named that man as being the shooter. And he said he did it—he said—he
said the first statement that it was Melcher because he feared that man
and if you watched Debbie Vanella for the tics and twitches and things I
was just talking about, you read fear in that woman’s face and in her
words. She has a gang son, and she knows all about gangs and
retaliation. And you bet she’s afraid to come in here and tell you the entire
truth.

11

So, Melcher, according to Adam Evans is the driver. And the State
talks to Adam—to John Melcher under precisely the same terms that the
State spoke with Adam Evans. I know many things at that time that John
Melcher doesn’t know, particularly the statement of Adam Evans. And
you’ve been around here for a few days, think in your own mind what my
response would have been had John Melcher’s story not been at least
very close to the story of Adam Evans. We don’t expect perfection.
Nobody can tell the same story the same way twice. No two people. And
that’s why we’re here today in the position that we’re in. That is the truth of
these proceedings.

12

Id. at 60–61 (quoting Trial Transcript, October 19, 1995, Exh. 40, pp. 179–82 (ECF No.

13

218-5, pp. 180–83)) (additional argument quoted for context).

7
8
9
10

14

On his direct appeal, Lisle claimed that the prosecution committed misconduct as

15

asserted in these claims. See Appellant’s Amended Opening Brief, Exh. 70, pp. 59–63

16

(ECF No. 219-9, pp. 73–77). The Nevada Supreme Court ruled as follows:

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25
26

Whether the defendant was denied a fair trial due to repeated improper
comments to the jury by the prosecutors.
Lisle argues that the prosecutors made prejudicial remarks to the
jury during both the guilt and the penalty phases of trial, in violation of his
right to due process. Lisle did not object to the remarks at trial, except for
statements concerning his drug use. “As a general rule, the failure to
object, assign misconduct, or request an instruction, will preclude
appellate consideration. However, where the errors are patently prejudicial
and inevitably inflame or excite the passions of the jurors against the
accused, the general rule does not apply.” Garner v. State, 78 Nev. 366,
372–73, 374 P.2d 525, 529 (1962) (citations omitted).
Garner further stated, “[i]f the issue of guilt or innocence is close, if
the state’s case is not strong, prosecutor misconduct will probably be
considered prejudicial.” Id. at 374, 374 P.2d at 530; cf. Lay v. State, 110
Nev. 1189, 1194, 886 P.2d 448, 451 (1994) (“[W]here evidence of guilt is
overwhelming, prosecutorial misconduct may be harmless error.”).

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1. Guilt phase
*

*

*

During rebuttal closing argument, the prosecutor referred to
negotiations he had with Melcher and Evans before they pled guilty to
lesser charges. Lisle argues that the prosecutor improperly injected his
opinion or personal beliefs into his argument, tendered his own
credentials, and vouched for the credibility of government witnesses.
It is improper for the prosecution to vouch for the credibility
of a government witness. Vouching may occur in two ways:
the prosecution may place the prestige of the government
behind the witness or may indicate that information not
presented to the jury supports the witness's testimony.
United States v. Roberts, 618 F.2d 530, 533 (1980).
“Analysis of the harm caused by vouching depends in part on the
closeness of the case.” U.S. v. Frederick, 78 F.3d 1370, 1378 (9th
Cir.1996); see also Roberts at 534 (improper to imply that a witness not
called could support a chief witness's testimony).
In the present case, the credibility of both Melcher and Evans was
critical. The prosecutor did appear to refer to information known by him but
not presented to the jury as to the content of the negotiations between
himself and Melcher, and himself and Evans. Moreover, the prosecutor’s
statements may have suggested that the prestige of the government was
behind the witnesses. However, the prosecutor did not make any
affirmative misrepresentations; the fact of his negotiations with Melcher
and with Evans was in evidence, and Melcher and Evans were crossexamined about these negotiations.
*

*

*

2. Rebuttal penalty phase argument
Lisle contends that the prosecutor improperly suggested to the jury
that it align itself with the prosecution by referring to “we” and “us”.
For the most part, the prosecutor’s use of “we” and “us” is
rhetorical, and therefore not improper. However, the statement, “There is
only one human being in this world that causes us to be here today doing
this terrible thing we have to do. And his name is Kevin Lisle,” improperly
suggests that the jury is aligned with the prosecution.
*

*

*

We conclude that several of the prosecutor’s remarks were
improper, but we further conclude that none was patently prejudicial and
none would have affected the jury verdict.
Lisle, 113 Nev. at 552–54, 937 P.2d at 480–82.

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1

Prosecutorial misconduct rises to the level of a constitutional violation only where

2

it “so infected the trial with unfairness as to make the resulting conviction a denial of due

3

process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted); see also

4

Parker v. Matthews, 567 U.S. 37, 45 (2012) (“The ‘clearly established Federal law’

5

relevant here is our decision in [Darden], which explained that a prosecutor’s improper

6

comments will be held to violate the Constitution only if they ‘“so infected the trial with

7

unfairness as to make the resulting conviction a denial of due process.”’ (quoting

8

Darden, 477 U.S. at 181, and Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)));

9

Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone of due process analysis

10

in cases of alleged prosecutorial misconduct is the fairness of the trial, not the

11

culpability of the prosecutor.”). “[I]t is not enough that the prosecutors’ remarks were

12

undesirable or even universally condemned.” Darden, 477 U.S. at 181 (citation omitted).

13

Arguments of counsel must be viewed in the context of the entire trial. See Boyde v.

14

California, 494 U.S. 370, 384–85 (1990); Greer v. Miller, 483 U.S. 756, 765–66 (1987).

15

In essence, determining whether a defendant’s trial was “fair” is “equivalent to

16

evaluating whether there was a reasonable probability of a different result.” Hein v.

17

Sullivan, 601 F.3d 897, 914–15 (9th Cir. 2010); see also Deck v. Jenkins, 814 F.3d 954,

18

979 (9th Cir. 2016).

19

Regarding Lisle’s claim in Claim 2B2a that the prosecution improperly aligned

20

itself with the jury by using pronouns such as “we” and “us,” the Court determines that

21

it was reasonable for the Nevada Supreme Court to conclude that the prosecutors’ use

22

of such plural first-person pronouns in argument was, for the most part, rhetorical and

23

not improper, and, to the extent it could be considered improper, it was not prejudicial.

24

See United States v. Younger, 398 F.3d 1179, 1190–91 (9th Cir. 2005) (prosecutor’s

25

repeated use of phrase “we know” in closing argument was not improper and did not

26

materially affect fairness of trial). Those arguments by the prosecutor did not so infect

27

the trial with unfairness as to make Lisle’s conviction or sentence a denial of due

28

process. See Darden, 477 U.S. at 181. This Court also determines that it was
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reasonable for the Nevada Supreme Court to conclude that, while it may have been

2

improper for the prosecutor to align himself with the jury by arguing “[t]here is only one

3

human being in this world that causes us to be here today doing this terrible thing we

4

have to do … [a]nd his name is Kevin Lisle,” that single statement did not infect Lisle’s

5

trial with unfairness so as to render his sentence unconstitutional. See id.

6

Regarding Claim 2B2b, the Court determines that the Nevada Supreme Court did

7

not rule unreasonably in concluding that, while the credibility of both Melcher and Evans

8

was critical, while the prosecutor could be understood to suggest that he had

9

information about the State’s negotiations with Melcher and Evans that was not

10

presented to the jury, and while the prosecutor could be viewed as placing the prestige

11

of the government behind those witnesses, the comments at issue did not render Lisle’s

12

trial unfair. As the Nevada Supreme Court noted, the prosecutor did not make any

13

affirmative misrepresentations. And, as the Nevada Supreme Court also noted, the fact

14

of the negotiations with Melcher and with Evans was in evidence, and Melcher and

15

Evans were cross-examined about the negotiations. In the context of the entire

16

prosecution arguments, and in the context of the trial as a whole, this Court cannot say

17

that the Nevada Supreme Court’s denial of relief on this claim was erroneous beyond

18

any fairminded disagreement. See Harrington, 562 U.S. at 101.

19

Turning to Claim 5C, Lisle claims that his constitutional rights were violated

20

because his trial counsel were ineffective for failing to object to the prosecutorial

21

misconduct alleged in Claims 2B2a and 2B2b. See Third Amended Petition (ECF No.

22

197), pp. 159–60; see also Order entered July 2, 2018 (ECF No. 260), pp. 34–36.

23

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court

24

propounded a two-prong test for claims of ineffective assistance of counsel: the

25

petitioner must demonstrate (1) that the attorney’s representation “fell below an

26

objective standard of reasonableness,” and (2) that the attorney’s deficient performance

27

prejudiced the defendant such that “there is a reasonable probability that, but for

28

counsel’s unprofessional errors, the result of the proceeding would have been different.”
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Strickland, 466 U.S. at 688, 694. A court considering a claim of ineffective assistance of

2

counsel must apply a “strong presumption” that counsel’s representation was within the

3

“wide range” of reasonable professional assistance. Id. at 689. The petitioner’s burden

4

is to show “that counsel made errors so serious that counsel was not functioning as the

5

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. And, to

6

establish prejudice under Strickland, it is not enough for the habeas petitioner “to show

7

that the errors had some conceivable effect on the outcome of the proceeding.” Id. at

8

693. Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a

9

trial whose result is reliable.” Id. at 687.

10

Where a state court previously adjudicated the claim of ineffective assistance of

11

counsel under Strickland, establishing that the decision was unreasonable is especially

12

difficult. See Harrington, 562 U.S. at 104–05. In Harrington, the Supreme Court

13

instructed:

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Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both highly deferential,
[Strickland, 466 U.S. at 689]; Lindh v. Murphy, 521 U.S. 320, 333, n. 7,
117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in
tandem, review is “doubly” so, [Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)]. The Strickland standard is a general one, so the range of
reasonable applications is substantial. 556 U.S., at 123, 129 S.Ct. at 1420.
Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under
§ 2254(d). When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.

21

Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 994–95

22

(2010) (double deference required with respect to state court adjudications of Strickland

23

claims).

24

In analyzing a claim of ineffective assistance of counsel under Strickland, a court

25

may first consider either the question of deficient performance or the question of

26

prejudice; if the petitioner fails to satisfy one element of the claim, the court need not

27

consider the other. See Strickland, 466 U.S. at 697.

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Lisle asserted this claim of ineffective assistance of counsel in his state habeas

2

action. Supplemental Points and Authorities, Exh. 84, pp. 34–38 (ECF No. 219-23,

3

pp. 35–39) (petition); Appellant’s Amended Opening Brief, Exh. 70, pp. 29–33 (ECF No.

4

219-9, pp. 36–40) (brief on appeal)). On the appeal in that action, the Nevada Supreme

5

Court ruled on the claim as follows:

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Lisle first argues that trial counsel rendered constitutionally
ineffective assistance by failing to object to several statements by the
prosecutor. Claims of ineffective assistance of counsel are evaluated
under the two-part test set forth in Strickland v. Washington.
*

*

*

In his guilt phase rebuttal closing argument, the prosecutor
referenced negotiations he had with two of the State’s witnesses before
they pleaded guilty to lesser charges. On direct appeal, Lisle argued that
the prosecutor improperly injected his personal opinion of their culpability,
tendered his credentials, and vouched for these witnesses. We concluded
that none of the prosecutor’s remarks warranted reversal of appellant’s
conviction and sentence. Lisle now claims that his trial counsel was
ineffective for not objecting to the prosecutor’s dialogue. Although counsel
should have objected, it is unlikely that an objection would have changed
the jury’s verdict. [Footnote: See Howard v. State, 106 Nev. 713–14, 719,
800 P.2d 175, 179 (1990), abrogated on other grounds by Harte v. State,
116 Nev. 1054, 13 P.3d 420 (2000).] The district court properly denied
relief on this ground.
Lisle next argues that trial counsel provided ineffective assistance
by failing to object to the prosecutor’s use of the words “we” and “us” in his
penalty phase closing argument. Lisle asserts that this court refused to
address the propriety of these statements because his trial counsel did not
object.
Contrary to Lisle’s assertion, this court did evaluate the
prosecutor’s use of the words “we” and “us.” We determined that:
For the most part, the prosecutor’s use of “we” and “us” is
rhetorical, and therefore not improper. However, the
statement, “There is only one human being in this world that
causes us to be here today doing this terrible thing we have
to do. And his name is Kevin Lisle,” improperly suggests that
the jury is aligned with the prosecution.
Again, trial counsel should have objected to the prosecutor’s improper
statement. [Footnote: See Howard, 106 Nev. at 719, 800 P.2d at 179.]
Nevertheless, we determined that this improper statement did not
prejudice Lisle. The district court properly denied relief on this ground.

27

Order of Affirmance, Exh. 103, pp. 1–3 (ECF No. 220-12, pp. 2–4) (footnotes omitted).

28

This ruling was reasonable. A fairminded jurist could conclude that there is no
23

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1

reasonable probability that, had trial counsel objected to the prosecutors’ arguments,

2

the result of Lisle’s trial would have been different. See Harrington, 562 U.S. at 101;

3

Strickland, 466 U.S. at 688, 694.

4

In his motion for an evidentiary hearing, Lisle requests an evidentiary hearing

5

regarding this claim of ineffective assistance of counsel. See Motion for Evidentiary

6

Hearing (ECF No. 273), pp. 5–6. Lisle states:

7
8
9

Lisle respectfully moves this Court to allow an evidentiary hearing
regarding this claim, so this Court can consider the contested factual
matter of counsel’s deficient performance with an adequately developed
record.

10

Id. at 6. However, this Court’s resolution of Claim 5C does not turn on the question

11

whether counsel’s performance was deficient. The Nevada Supreme Court ruled that,

12

even if counsel’s performance was deficient, Lisle was not prejudiced, and this Court

13

determines that ruling was reasonable within the meaning of 28 U.S.C. § 2254(d). An

14

evidentiary hearing on the question whether counsel’s performance was deficient is

15

unwarranted.

16

In sum, the Court determines that the Nevada Supreme Court’s rulings denying

17

relief on Claims 2B2a, 2B2b, and the remaining part of Claim 5, were not contrary to, or

18

an unreasonable application of, Darden, Strickland, or any other United States Supreme

19

Court precedent, and were not based on an unreasonable determination of the facts in

20

light of the evidence. The Court will deny Lisle habeas corpus relief on these claims.

21

C.

Claim 7

22

In Claim 7, Lisle claims that his death sentence violates the federal constitution

23

“because the knowing risk of death aggravating circumstance has been

24

unconstitutionally applied to Mr. Lisle’s case.” Third Amended Petition (ECF No. 197),

25

pp. 174–80. The aggravating circumstance at issue in this claim applies where “[t]he

26

murder was committed by a person who knowingly created a great risk of death to more

27

than one person by means of a weapon, device or course of action which would

28

normally be hazardous to the lives of more than one person.” Nev. Rev. Stat.
24

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1

200.033(3). This was the only alleged aggravating circumstance presented to the jury.

2

The jury was instructed regarding the aggravating circumstance using the language of

3

the statute, as follows:

4
5
6
7

You are instructed that the following factors are circumstances by
which Murder of the First Degree may be aggravated:
1.
The murder was committed by a person who knowingly
created a great risk of death to more than one person by means of a
weapon, device or course of action which would normally be hazardous to
the lives of more than one person.

8

Jury Instruction No. 8, Exh. 48, p. 1967 (ECF No. 218-13, p. 10). The jury found this

9

aggravating circumstance to be established beyond a reasonable doubt. Special

10
11

Verdict, Exh. 52, p. 1991 (ECF No. 218-17, p. 2).
Lisle asserted this claim on his direct appeal. See Appellant’s Amended Opening

12

Brief, Exh. 70, pp. 73–79 (ECF No. 219-9, pp. 87–93). The Nevada Supreme Court

13

ruled as follows:

14
15
16
17
18
19
20
21
22
23
24
25
26
27

Whether the district court committed reversible error when it allowed the
jury to consider as an aggravating circumstance that the murder was
committed by a person who knowingly created a great risk of death to
more than one person.
Lisle argues that the district court applied NRS 200.033(3) in an
overly broad manner, violating the Constitution. Lisle contends that this
aggravator fails because there was insufficient evidence to indicate
(1) that at the time the single shot was fired he knew there was a
passenger in the vehicle, and (2) that the single shot placed another
person at great risk of death.
First, Lisle contends that there was insufficient evidence to indicate
that he knew Logan had a passenger. Evans testified that he did not see a
passenger in the Mustang. However, Gonzales was able to see the front
and rear passengers in the van.
Second, Lisle contends that “a great risk of death to more than one
person” requires a high probability of harm to others, not a mere possibility
of harm. He cites a number of cases from Florida and Georgia to support
his argument that a high probability of harm to others was not present
here.
In Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985), the
defendant knowingly created a great risk of death to more than one
person where the victim's wife was in the line of fire. Id. at 243, 699 P.2d
at 1056.

28
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1
2
3
4
5
6

In the instant case, Lisle fired his revolver at Logan from a fairly
close range while the two vehicles were moving. Unlike Nevius, Gonzales
was not between Lisle and Logan, but he was sitting just beyond Logan,
the target.
We conclude that sufficient evidence supports the finding of this
aggravating circumstance, and its application in this context is not
overbroad.
Lisle, 113 Nev. at 555–56, 937 P.2d at 482–83 (footnote omitted).
Lisle then asserted the claim again in his first state habeas action. See

7

Supplemental Points and Authorities, Exh. 84, pp. 41–45 (ECF No. 219-23, pp. 42-46).

8

The state district court denied relief. See Findings of Fact, Conclusions of Law and

9

Order, Exh. 91, pp. 2–4 (ECF No. 220, pp. 3–5). Lisle then asserted the claim on the

10

appeal in that action. See Appellant’s Opening Brief, Exh. 99, pp. 36–44 (ECF No. 220-

11

8, pp. 43–51). The Nevada Supreme Court ruled as follows:

12

Aggravating circumstance

13

Lisle argues, as he did on direct appeal, that the evidence does not
support the jury’s finding that he “knowingly created a great risk of death
to more than one person.” [Footnote: NRS 200.033(3)] He claims his case
is indistinguishable from Leslie v. State [Footnote: 114 Nev. 8, 952 P.2d
966 (1998)], in which this court found that the record did not support the
jury’s finding of the aggravator, and therefore this court should strike his
aggravator.

14
15
16
17
18
19
20
21
22
23
24
25
26

We conclude that Lisle is not entitled to relief on this ground. First,
we determined that the aggravator was supported by sufficient evidence
on direct appeal, and that decision is now law of the case. [Footnote: Hall
v. State, 91 Nev. 314, 535 P.2d 797 (1975).] Moreover, Leslie is
inapplicable. In Leslie, the State based the “knowingly created a great risk
of death to more than one person” aggravator on Leslie shooting the gun
into the wall above the head of the victim. There was a back room behind
that wall, in which two additional people were located. There was no
evidence that Leslie knew that the two people were there. In this case,
Lisle shot into a vehicle traveling approximately 60 miles per hour on a
freeway. He argues that his case is like Leslie because there is no
evidence that he or the other van passengers could see the victim’s
passenger. However, that passenger testified that he could see the van
passengers. Moreover, Lisle shot the driver of a vehicle traveling on a
freeway. Killing the driver of a vehicle that is traveling on a freeway puts
others at great risk of death. Therefore, we conclude that the district court
properly denied relief on this claim.
Order of Affirmance, Exh. 103, pp. 5–6 (ECF No. 220-12, pp. 6–7).

27

Any question regarding the interpretation of a state-law aggravating factor or its

28

application to the facts of a particular case—absent alleged violation of the petitioner’s
26

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1

federal constitutional rights—is a matter of state law, beyond the scope of federal

2

habeas corpus. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990). In Lewis v. Jeffers,

3

Court stated:

4
5
6
7
8
9
10

Because federal habeas corpus relief does not lie for errors of state law,
see, e.g., Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d
29 (1984); Rose v. Hodges, 423 U.S. 19, 21–22, 96 S.Ct. 175, 177–178,
46 L.Ed.2d 162 (1975) (per curiam), federal habeas review of a state
court’s application of a constitutionally narrowed aggravating circumstance
is limited, at most, to determining whether the state court’s finding was so
arbitrary or capricious as to constitute an independent due process or
Eighth Amendment violation. Cf. Donnelly v. DeChristoforo, 416 U.S. 637,
642, 643, 94 S.Ct. 1868, 1871, 1871, 40 L.Ed.2d 431 (1974) (absent a
specific constitutional violation, federal habeas review of trial error is
limited to whether the error “so infected the trial with unfairness as to
make the resulting conviction a denial of due process”).

11

Id. The Supreme Court concluded that the appropriate standard of federal habeas

12

review of a state court’s application of an aggravating circumstance is the “rational

13

factfinder” test: “whether, after viewing the evidence in the light most favorable to the

14

prosecution, any rational trier of fact could have found the essential elements” of the

15

aggravating factor. Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

16

Lisle claims that there was insufficient evidence presented at trial to support

17

application of this aggravating circumstance; specifically, Lisle claims there was

18

insufficient evidence that he knowingly created a great risk of death to more than one

19

person. Third Amended Petition, pp. 174–75, 179 (citing Jackson). This Court

20

determines that Lisle’s claim is without merit.

21

First, as the Nevada Supreme Court pointed out, there was evidence that, when

22

Lisle shot Logan, Lisle could see that there was a passenger in the car. See Trial

23

Transcript, October 16, 1995, Exh. 37B, pp. 194, 199–201, 210–16 (ECF No. 218-2, pp.

24

60, 65–67, 76–82) (Gonzales, the passenger in the car, testified that he saw two

25

passengers in the van that Lisle was in, one of whom was the shooter, indicating that

26

there was a line of sight for the shooter to see Gonzales). A rational juror could have

27

found, based on this evidence, that Lisle could see the passenger, and that he therefore

28
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1

knowingly created a great risk of death to more than one person when he shot the driver

2

of the car in the head.

3

But furthermore, even assuming (for purposes of this analysis only) that the

4

evidence that Lisle could see Gonzales was not, by itself, sufficient to support the

5

finding that Lisle knowingly created a great risk of death to more than one person, there

6

was still sufficient evidence to support that finding: when Lisle shot Logan in the head,

7

Logan was driving a car at about 60 miles per hour on a Las Vegas freeway at 9:00 to

8

10:30 in the evening. See, id. at 188–89 (ECF No. 218-2, pp. 54–55) (testimony of

9

Gonzales regarding time and place of shooting); id. at 196 (ECF No. 218-2, p. 62

10

(testimony of Gonzales that car was traveling at 60 to 65 miles per hour); Trial

11

Transcript, October 17, 1995, Exh. 38, p. 314 (ECF No. 218-3, p. 40) (testimony of

12

Evans regarding time of shooting). In this Court’s view, whether or not Lisle knew that

13

there was a passenger in Logan’s car, a rational juror could find that one who shoots

14

the driver of a car in the head, when the car is traveling at about 60 miles per hour on a

15

Las Vegas freeway at 9:00 to 10:30 p.m., knowingly creates a great risk of death to

16

more than one person.

17

The Nevada Supreme Court’s ruling that there was sufficient evidence to support

18

the aggravating circumstance that Lisle knowingly created a great risk of death to more

19

than one person was reasonable in light of the evidence presented at trial.

20

Moreover, supported by this evidence, the aggravating circumstance was not

21

applied in an arbitrary manner, and it properly functioned to narrow the class of persons

22

eligible for the death penalty. See Zant v. Stephens, 462 U.S. 862, 876 (1983) (finding

23

of aggravating circumstance “must genuinely narrow the class of persons eligible for the

24

death penalty and must reasonably justify the imposition of a more severe sentence on

25

the defendant compared to others found guilty of the murder”); see also Buchanan v.

26

Angelone, 522 U.S. 269, 275–76 (1998); Tuilaepa v. California, 512 U.S. 967, 971

27

(1994). Lisle has not cited any United States Supreme Court precedent holding to the

28

contrary.
28

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1

The Nevada Supreme Court’s ruling on this claim was not contrary to, or an

2

unreasonable application of, United States Supreme Court precedent, and it was not

3

based on an unreasonable determination of the facts in light of the evidence. The Court

4

will deny Lisle habeas corpus relief on Claim 7.

5

D.

6

In Claim 10A, Lisle claims that his federal constitutional rights were violated

7

because, in the penalty phase of his trial, the trial court erroneously allowed the State to

8

present prejudicial evidence of an unadjudicated homicide, the Lusch murder. Third

9

Amended Petition (ECF No. 197), pp. 188–90. Lisle’s claim, in its entirety, is as follows:

10

1. The trial court erroneously allowed the State to present
prejudicial evidence of an unrelated and unadjudicated homicide during
the penalty phase of Mr. Lisle’s trial. See [Trial Transcript, October 24,
1995, Exh. 45, pp. 81–196 (ECF No. 218-10, pp. 82–197)] (detailing
testimony connecting Mr. Lisle to the death of Justin Lusch). Evidence of
other crimes may be admitted in a penalty hearing only after the State has
proven aggravating circumstances beyond a reasonable doubt and the
jury has weighed them against mitigation. See Evans v. State, 28 P.3d
498, 515 (Nev. 2001). A contrary result would undermine the Eighth
Amendment’s guarantees of reliability and proportionality. Evans, 28
P.3d at 515.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Claim 10A

2. The use of unadjudicated criminal misconduct, not reduced to a
conviction, in the penalty phase of trial violated petitioner’s right to due
process of law and a reliable sentence. In order for the penalty jury to
consider such evidence it must first decide whether or not the misconduct
actually occurred and whether the defendant committed it. No jury that has
just convicted a defendant of first degree murder could possibly remain
impartial for the purpose of determining whether the defendant in fact
committed the misconduct, or could make a constitutionally reliable
determination of that issue. Accordingly, the use of such evidence in
Mr. Lisle’s penalty phase violated federal due process guarantees and the
Eighth Amendment guarantee of a reliable sentence. See State v.
Bartholomew, 683 P.2d 1079, 1085–86 (Wash. 1984); cf. Lisle v. State,
937 P.2d 473, 484 (1997). In the alternative, Mr. Lisle’s rights to due
process and to a reliable sentence under the federal constitution were
violated by the failure of the district court to bifurcate the death-eligibility
phase from the rest of the penalty hearing. Under Nevada law, a jury must
make the initial determination of a defendant’s death-eligibility by weighing
only the statutory aggravating factors—here, only the weak or non-existent
great risk of death factor—against all the mitigating evidence. The nonstatutory aggravating evidence, which in this case included the allegation
of another murder, cannot play any part in the eligibility weighing process.
3. The Nevada Supreme Court rejected this claim on the ground
that jurors are presumed to be able to follow the jury instructions, which in
general terms described the sentencing calculus. Lisle v. State, 113 Nev.
29

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at 557–558; see also Summers v. State, 148 P.3d 778, 783–84 (2006)
(bifurcation of penalty phase not required because jury presumed to follow
instructions). But no jury could follow such an instruction in this case. The
State’s arguments in the penalty phase repeatedly referred to the other
alleged homicide, and the nature of another homicide allegation is such
that its improper effect on the eligibility determination could not be
avoided, under the federal due process and reliability guarantees,
evidence that is too prejudicial must be excluded in the penalty phase.
Payne v. Tennessee, 501 U.S. 808, 825 (1991) (inflammatory victim
impact evidence). Here, the allegation of the other homicide was so
inflammatory that no rational juror could ignore it in making the eligibility
determination, and the only way to avoid that prejudicial effect would have
been by separating the death-eligibility determination and conducting that
part of the hearing without reference to the unadjudicated homicide. The
failure to take that protective action rendered the penalty hearing
fundamentally unfair and resulted in an unreliable sentence in violation of
the federal constitution.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Id.
Lisle asserted such a claim on his direct appeal, and the Nevada Supreme ruled
as follows:
Whether prejudicial error occurred when the jury was instructed on the
appropriate use of the character evidence presented by the prosecution
during the penalty phase.
Lisle argues that the jury instructions during the penalty phase were
ambiguous and led the jury to rely improperly on his character and his
unadjudicated murder charge in finding him death-eligible. Lisle contends
that nothing prevented the jury from considering character evidence along
with aggravating and mitigating evidence in arriving at the death penalty
option. He argues that the evidence presented by the State at the penalty
hearing was solely evidence of his bad character, and the jury should
have been instructed not to consider this evidence until after it weighed
the aggravating and mitigating circumstances.
When a sentencing body is given discretion to impose the death
sentence, “that discretion must be suitably directed and limited so as to
minimize the risk of wholly arbitrary and capricious action.” Gregg v.
Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976)
(Opinion of Stewart, Powell, and Stevens, JJ.), reh'g denied, 429 U.S.
875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976). In Gallego v. State, this court
explained the process by which a Nevada jury arrives at a sentence of
death. 101 Nev. 782, 711 P.2d 856 (1985), cert. denied, 479 U.S. 871,
107 S.Ct. 246, 93 L.Ed.2d 171 (1986) (where jury was instructed not to
consider evidence of uncharged homicides as aggravating circumstance,
such evidence was relevant to the considerations of defendant’s death
worthiness). “Individuals who are identified as potential recipients of the
death penalty because of conduct statutorily defined as an aggravating
circumstance must then be scrutinized according to their individual
characteristics.” 101 Nev. at 791, 711 P.2d at 862.

28
30

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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In the present case, the jury was clearly instructed that it must find
an aggravating circumstance before the death penalty was an option, and
the aggravator was defined. Instruction 8B clearly states that evidence of
other crimes is not to be considered as an aggravator. [Footnote: Penalty
phase instruction 8B reads: The State has alleged one statutory
aggravating circumstance against Kevin Lisle. Other arrests, convictions,
or pending charges against Mr. Lisle are to be considered for character
only and not as aggravating circumstances.] We conclude that the
instructions to the jury regarding the use of character evidence minimized
the risk of arbitrary and capricious action, and no prejudicial error
occurred.
Whether the trial court committed prejudicial error when it allowed the
State to present to the jury evidence concerning an unadjudicated murder
case during the penalty hearing.
Lisle argues that the district court erred by allowing the State to
present evidence concerning an unadjudicated murder case before the
jury advised the court that it had found an aggravating circumstance
beyond a reasonable doubt. Lisle contends that because this evidence
was presented in conjunction with aggravating and mitigating
circumstances, the district court had no way of determining whether the
aggravator was found. Moreover, Lisle contends that the evidence is
prejudicial and unreliable. He argues that introduction of the evidence prior
to establishing that the jury found the aggravating circumstance beyond a
reasonable doubt violated his right against cruel and unusual punishment
and his right to due process.
The district court has broad discretion to admit evidence at a
penalty hearing for first-degree murder under NRS 175.552. In Riker v.
State, 111 Nev. 1316, 905 P.2d 706 (1995), cert. denied, 517 U.S. 1194,
116 S.Ct. 1687, 134 L.Ed.2d 788 (1996), this court stated, “evidence of
uncharged crimes may be admitted during a penalty hearing only after any
aggravating circumstances have been established beyond a reasonable
doubt.” Id. at 1326, 905 P.2d at 712, citing Guy v. State, 108 Nev. 770,
782, 839 P.2d 578, 586 (1992). This court then explained that “it does not
necessarily follow that the trier of fact cannot hear the evidence of
uncharged crimes before it considers the aggravating circumstances, only
that the uncharged crimes cannot be used to prove the aggravating
circumstances.” Id. at 1327, 905 P.2d at 713.
In the present case, evidence of the uncharged homicide was
presented before the jury submitted its decision regarding the aggravating
circumstance. The jury was instructed not to consider other crimes or
pending charges as aggravating circumstances. There is a presumption
that jurors follow jury instructions. Tennessee v. Street, 471 U.S. 409, 415,
105 S.Ct. 2078, 2082, 85 L.Ed.2d 425 (1985). Accordingly, we conclude
that the district court did not err in allowing the State to present evidence
of the unadjudicated murder before the jury advised the court that it had
found an aggravating circumstance beyond a reasonable doubt.
Lisle, 113 Nev. at 556–58, 937 P.2d at 483–84.
As the Court reads Claim 10A, Lisle makes two distinct claims. The first is that,
because he had not yet been convicted of the Lusch murder, the evidence of his
31

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1

participation in that murder, presented in the penalty phase of his trial in this case, was

2

unreliable. See Third Amended Petition (ECF No. 197), pp. 188–89 (“No jury that has

3

just convicted a defendant of first degree murder could possibly remain impartial for the

4

purpose of determining whether the defendant in fact committed the misconduct, or

5

could make a constitutionally reliable determination of that issue.”). Lisle made a similar

6

argument on his direct appeal. See Appellant’s Amended Opening Brief, Exh. 70,

7

pp. 83–88 (ECF No. 219-9, pp. 97–102). The Nevada Supreme Court rejected this

8

argument without discussion or analysis specific to it. See Lisle, 113 Nev. at 557–58,

9

937 P.2d at 484. Lisle, however, cites no United States Supreme Court precedent in

10

support of this argument. See 28 U.S.C. § 2254(d). The Court determines that the

11

Nevada Supreme Court’s rejection of this argument was not inconsistent with Supreme

12

Court precedent.

13

Second, Lisle argues that it was constitutional error for the trial court to admit

14

evidence of Lisle’s participation in the Lusch murder before the jury found an

15

aggravating circumstance. See Third Amended Petition (ECF No. 197), pp. 188–90. In

16

other words, as the Court understands Lisle’s claim here, he argues that it was error for

17

the trial court not to bifurcate the penalty phase of the trial (already bifurcated from the

18

guilt phase) into a death-eligibility phase and a determination-of-sentence phase. See

19

id. But, here again, Lisle cites no United States Supreme Court precedent requiring as

20

much. See 28 U.S.C. § 2254(d). The Nevada Supreme Court ruled that the instructions

21

given the jury properly channeled their consideration of the evidence, such that they

22

were instructed to make the death-eligibility determination before considering the other-

23

misconduct evidence. See Lisle, 113 Nev. at 556–58, 937 P.2d at 483–84. This was

24

supported by the record. See Instruction 7, Exh. 48, pp. 1965–66 (ECF No. 218-13,

25

pp. 8–9); Instruction 8B, Exh. 48, p. 1969 (ECF No. 218-13, p. 12). The Nevada

26

Supreme Court also cited the well-established rule that jurors are presumed to follow

27

jury instructions. See Lisle, 113 Nev. at 558, 937 P.2d at 484, citing Tennessee v.

28

Street, 471 U.S. 409, 415 (1985); see also, e.g., Penry v. Johnson, 532 U.S. 782, 799
32

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1

(2001); Weeks v. Angelone, 528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S.

2

200, 211 (1987).
The Nevada Supreme Court’s ruling on the claims in Claim 10A was not contrary

3
4

to, or an unreasonable application of, United States Supreme Court precedent, and it

5

was not based on an unreasonable determination of the facts in light of the evidence.

6

The Court will deny Lisle habeas corpus relief on Claim 10A.

7

E.

8

In Claim 15, Lisle claims that his conviction and death sentence violate the

9

federal constitution “because he may become incompetent to be executed.” Third

10

Amended Petition (ECF No. 197), p. 261. Lisle’s claim, in its entirety, is as follows:

11

1. Mr. Lisle does not, at this time, assert that he is incompetent to
be executed. Mr. Lisle alleges that he may become incompetent before
the execution is carried out.

12
13

2. Under authority in this Circuit, see Martinez-Villareal v. Stewart,
118 F.3d 628 (9th Cir. 1997), aff’d 523 U.S. 637 (1998), it appears that a
claim anticipating incompetence to be executed should be raised in an
initial petition for writ of habeas corpus.

14
15

3. Mr. Lisle therefore asserts the allegations of this claim pursuant
to Martinez-Villareal in order to avoid any possible implication of waiver of
this claim.

16
17
18
19

Claim 15

Id.
In Ford v. Wainwright, 477 U.S. 399, 409–10 (1986), the Supreme Court held

20

that it is a violation of the Eighth Amendment to execute one who is unable to

21

comprehend that his execution is based on a conviction for murder. However, for

22

purposes of a Ford claim, the determination whether the petitioner is incompetent

23

cannot be made until an execution warrant is issued, making his execution imminent.

24

See Martinez-Villareal v. Stewart, 118 F.3d 628, 630 (9th Cir. 1997) (citing Herrera v.

25

Collins, 506 U.S. 390, 406 (1993)).

26
27

Respondents argue in their answer that this claim is not ripe, and should be
dismissed on that ground, because Lisle’s execution is not now imminent. See Answer

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1

(ECF No. 263), pp. 38–39. Lisle did not respond to that argument. See Reply (ECF No.

2

271). Claim 15 is not ripe, and it will be dismissed on that ground.

3

F.

4

In Claim 21B, Lisle claims that lethal injection, as it would be carried out in his

5

case, in Nevada, would violate the federal constitution. Third Amended Petition (ECF

6

No. 197), pp. 318–35.

7

Claim 21B

Respondents argue that this claim, too, is unripe. See Answer (ECF No. 263),

8

pp. 39–40. The Court agrees. This claim is not ripe because it is impossible at this time

9

to know what Nevada’s lethal execution protocol will be when Lisle’s execution

10

becomes imminent. See Floyd v. Filson, 949 F.3d 1128, 1152–53 (9th Cir. 2020) (“We

11

cannot determine what drugs Nevada might attempt to use to execute Floyd, and we

12

cannot adjudicate the constitutionality of an unknown protocol.”); see also Beardslee v.

13

Woodford, 395 F.3d 1064, 1069–70 (9th Cir. 2005) (“[T]he precise execution protocol is

14

subject to alteration until the time of execution.”); see also Thomas v. Union Carbide

15

Agric. Prod. Co., 473 U.S. 568, 580 (1985) (Ripeness is “peculiarly a question of

16

timing;” its “basic rationale is to prevent the courts, through premature adjudication, from

17

entangling themselves in abstract disagreements.” (internal quotation marks and

18

citations removed)). Claim 21B will be dismissed on the ground that it is not ripe.

19

G.

Claim 8

20

In Claim 8, Lisle claims that his conviction and death sentence violate the federal

21

constitution because of cumulative error. Third Amended Petition (ECF No. 197),

22

pp. 181–82.

23

As is explained above, regarding Claims 2B2a and 2B2b the Court determines

24

that the prosecution may have committed misconduct by making improper arguments,

25

but the Nevada Supreme Court reasonably ruled that the prosecutors’ comments were

26

not prejudicial in that they did not render Lisle’s trial unfair. And, regarding the related

27

claim of ineffective assistance of trial counsel in Claim 5C, the Court determines that the

28

Nevada Supreme Court reasonably ruled that there is no reasonable probability that,
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1

had trial counsel objected to the prosecutors’ arguments, the result of Lisle’s trial would

2

have been different. Therefore, regarding these claims the Court determines that there

3

was no constitutional error. This conclusion is the same whether Claims 2B2a, 2B2b

4

and 5C are considered separately or cumulatively.

5
6

Beyond Claims 2B2a, 2B2b and 5C, the Court finds there to be no other error—
or possible error—to be considered under this cumulative error claim.

7

The Court will deny Lisle habeas corpus relief on Claim 8.

8

H.

9

In his motion for evidentiary hearing (ECF No. 273), Lisle requests an evidentiary

10

hearing regarding the question whether his trial counsel’s performance was deficient as

11

alleged in his claim of ineffective assistance of trial counsel in Claim 5C, and regarding

12

his claim in Claim 21B that Nevada’s lethal injection protocol in unconstitutional. The

13

Court determines that an evidentiary hearing is unwarranted with respect to those

14

claims. As for Claim 5C, as explained above, this Court’s resolution of that claim does

15

not turn on the question whether counsel’s performance was deficient, but rather, this

16

Court determines that the Nevada Supreme Court reasonably ruled that, even if

17

counsel’s performance was deficient, Lisle was not prejudiced. And, as for Claim 21B,

18

the Court determines that claim is not ripe. An evidentiary hearing is not warranted on

19

either of those claims. The Court will deny Lisle’s motion for an evidentiary hearing.

Motion for Evidentiary Hearing

20

I.

Certificate of Appealability

21

The standard for the issuance of a certificate of appealability requires a

22

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c). The

23

Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:

24
25
26
27
28

Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong. The
issue becomes somewhat more complicated where, as here, the district
court dismisses the petition based on procedural grounds. We hold as
follows: When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim, a
COA should issue when the prisoner shows, at least, that jurists of reason
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would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.

1
2
3

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074,

4

1077–79 (9th Cir. 2000).

5

Applying the standard articulated in Slack, the Court finds that a certificate of

6

appealability is warranted with respect to Claim 2B2b and the claim in Claim 5C that

7

Lisle’s trial counsel was ineffective for failing to object to the prosecutorial misconduct

8

alleged in Claim 2B2b. The Court will grant Lisle a certificate of appealability with regard

9

to those claims. Beyond that, the Court will deny Lisle a certificate of appealability.

10
11
12

IV.

Conclusion
IT IS THEREFORE HEREBY ORDERED that Petitioner’s Motion for Evidentiary

Hearing (ECF No. 273) is DENIED.

13

IT IS FURTHER ORDERED that Claims 15 and 21B of Petitioner’s Third

14

Amended Petition for Writ of Habeas Corpus (ECF No. 197) are DISMISSED, as those

15

claims are not ripe.

16
17
18

IT IS FURTHER ORDERED that Petitioner’s Third Amended Petition for Writ
of Habeas Corpus (ECF No. 197) is DENIED.
IT IS FURTHER ORDERED that Petitioner is granted a certificate of appealability

19

with respect to Claim 2B2b and the claim in Claim 5C that Lisle’s trial counsel was

20

ineffective for failing to object to the prosecutorial misconduct alleged in Claim 2B2b.

21

With respect to all other issues, the Court denies Petitioner a certificate of appealability.

22

IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter

23

judgment accordingly.

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25

September 8, of _____________________, 2021.
DATED THIS ___ day 2021.

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27
JAMES C. MAHAN,
UNITED STATES DISTRICT JUDGE

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