KEVIN JAMES LISLE v. E.K. MCDANIEL

Filing 317

ORDER granting in part and denying in part ECF No. 293 Motion to Dismiss; denying ECF Nos. 300 Motion for Leave to Conduct Discovery, 303 Motion for Evidentiary Hearing, 305 Motion for Orders for Medical Examination and Site Inspection; Respondents to file answer to remaining claims re ECF No. 292 Fourth Amended Petition for Writ of Habeas Corpus by 9/30/2018. The schedule for further proceedings set forth in order ECF No. 284 remains in effect. See Order for further details and information. Signed by Judge Miranda M. Du on 7/2/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEVIN JAMES LISLE,

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Case No. 2:03-cv-1006-MMD-CWH
Petitioner,

ORDER

v.
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TIMOTHY FILSON, et al.,

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Respondents.

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I.

INTRODUCTION

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Before the Court, in this capital habeas corpus action, are a motion to dismiss filed

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by Respondents, and a motion for leave to conduct discovery, motion for medical

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examination and site inspection, and motion for evidentiary hearing filed by Petitioner.

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For the following reasons, the Court will grant in part and deny in part the motion to

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dismiss, and will deny Petitioner’s motions for leave to conduct discovery, for medical

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examination and site inspection, and for an evidentiary hearing.

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II.

BACKGROUND

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This habeas corpus action is brought pursuant to 28 U.S.C. § 2254, by Kevin

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James Lisle, a Nevada prisoner sentenced to death. Lisle’s conviction and death

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sentence, at issue in this case, are for the murder of Justin Lusch in Las Vegas on August

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22, 1994. In its opinion on Lisle’s direct appeal, the Nevada Supreme Court described the

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factual background of the case as follows:

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On August 22, 1994, between 4:00 to 4:30 a.m., the body of
nineteen-year-old Justin Lusch (“Justin”) was found shot to death in the
Lone Mountain desert area in Las Vegas.

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In early July 1994, Justin began living with a friend, Eric Resma
(“Resma”) in Resma’s converted garage, which was a known “drug house.”
About August 8, 1994, two weeks prior to Justin’s death, Lisle and [Jerry]
Lopez visited Resma’s garage for the first time, looking for their friend,
Jason Sullivan (“Sullivan”), who had recently lived there, but had since
moved out. Resma talked with Lisle and Lopez and invited them inside to
ingest drugs. From that day forward, Lisle and Lopez continued to frequent
Resma’s residence. At some point thereafter, Resma found a .380 caliber
automatic gun between his couch cushions. When Resma asked the
occupants of the garage where it came from, either Lisle or Lopez took the
gun from Resma and put it in his own pants waistband.

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On August 17, 1994, Lisle and Sullivan participated in a drug
transaction at Resma’s house. Lisle sold Sullivan ten grams of
methamphetamine with the understanding that Sullivan would pay Lisle for
the narcotics within a few days. Sullivan then sold Justin 1.75 grams for
which Justin would pay later. Sullivan took his portion of the drugs, along
with five or six rifles he also presumably received from Lisle, to the house
of his girlfriend, Nicole Catherina (“Catherina”), where Sullivan was then
living. Later that day, Sullivan was arrested on unrelated charges.

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The next day, on August 18, 1994, Catherina contacted Resma so
that she could return the drugs and guns to Lisle. Resma and Justin went
to Catherina’s residence to pick up the items and took them to Resma’s
house where Lisle and Lopez were waiting. Resma gave the drugs to Lisle,
but put the rifles, wrapped in a blanket, on the couch. Justin told Lisle that
Sullivan had given him a portion of the drugs, and Lisle demanded to know
their location. Justin replied that the drugs were locked away and he did not
have them in his possession at the moment. Lisle continued to demand to
see the drugs. He appeared very upset and seemed to disbelieve Justin.
Resma then stated that he had the drugs and asked Lisle if he wanted to
see them. Lisle calmed down once Resma interjected; Lisle stated that he
did not need to see the drugs.
Throughout this conversation, Lisle was “fiddling” with his .380
caliber weapon. He was cleaning it, and the clip containing ammunition was
not in the gun. Nevertheless, Justin asked Lisle if he was threatening him
with the gun. Lisle said he was not; if he had a problem with Justin, he would
take him outside and they would box.
Later that day, Justin separately told his friends, Ryan Cizl (“Cizl”)
and Jeff Kurtz (“Kurtz”), that Lisle had held a gun to his head. He also told
them that later Lisle apologized to Justin. Both Kurtz and Cizl testified at
trial that although Justin was prone to exaggerate, this time they did not
detect any hyperbole from him.
Sometime between August 18, 1994, and August 21, 1994, Justin
found the rifles that were returned at Resma’s residence. [Footnote: It is
unclear from the record how Justin “found” these rifles when he participated
in obtaining them from Catherina to return to Lisle. Presumably, since the
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rifles were wrapped in a blanket, Justin did not know what they were.] He
thought they were stolen and stated that he wanted the guns removed from
the residence or else he would turn them over to his father, the chief of
police for North Las Vegas. Thereafter, another resident at Resma’s garage,
T.J. Willis (“Willis”), told Lisle what Justin had said about the guns. Lisle
apparently stated to Willis that he advised Justin not to do that.

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On August 21, 1994, in the late evening hours, Lisle, Lopez, and
some other friends, including Adam Evans (“Evans”), were at the house of
Anthony Vanella (“Vanella”). Lisle stated, in Evans’ presence, that he was
going to kill a “snitch” named Justin. Lopez was not present at this
conversation.

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In the meantime, at approximately 10:30 p.m., Kurtz telephoned
Justin to request that Justin procure some drugs for him. Between 11 p.m.
to midnight, Justin gave another friend a ride home from Resma’s garage.
While Justin was out, Kurtz called back again and left a message. When
Justin returned home, he did not call Kurtz back right away.

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At approximately 2 a.m. on August 22, 1994, Lisle and Lopez left
Vanella’s house. Either Lopez or Lisle had a .380 caliber gun tucked into
his waistband.

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At approximately 2:30 a.m., Justin returned Kurtz’s phone call to
inform him that he was going out to get the drugs. Justin stated that he was
on his way out the door at that moment and he would contact Kurtz in fifteen
minutes. He stated he was getting the drugs from some people known as
“Vatos” and that they were at the door right now. Lisle and Lopez were
known as “Vatos,” and Justin, in particular, enjoyed calling them by that
nickname. Kurtz, who was anxiously awaiting his delivery, called Justin
again at 3 a.m. and received no answer.
Between approximately 4:00 to 4:30 a.m., Justin’s body was found
at an area in the desert known as Lone Mountain. It was later determined
that this was an area that Lisle and Lopez were known to frequent for
shooting practice. Justin was shot three times: once in the upper chest,
once in the right side of his back, and once in his lower back.
Meanwhile, between 4:00 to 4:30 a.m., Lisle and Lopez returned to
Vanella’s house. Lisle had the gun in his possession. Evans testified that
Lisle told Vanella, “I smoked him. I got him. I killed a snitch. We took him to
where we used to shoot and he ran and I shot him in the back.” In addition,
Vanella’s mother overheard Lisle say, “I took him to the desert and I did him.
I shot him four times and I think I hit him three. He was a rat. I knew he was
a rat and I'm glad I did it.” Lisle also mentioned the “snitch’s” name was
Justin. Lopez then stated, “We did it clean and we did it good. Nobody is
going to find out that we did it. You don’t have to worry.”
Vanella then suggested to Lisle and Lopez to get rid of the gun,
whereupon Lisle stated that he would go out and sell it. Lisle and Lopez
then left Vanella’s house and returned about one hour later. Lisle stated he
sold the gun for $50.00.

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Later on August 22, 1994, between 9 or 10 p.m., Vanella brought
Lisle and Lopez to the house of Larry Prince (“Prince”) for the first time.
[Footnote: Prince was a man in his late forties who provided food, drugs,
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money, and a place to stay for teenagers and young adults in the
neighborhood.] Lisle, Vanella, and Prince discussed a drug transaction. At
the conclusion of this conversation, Lisle asked Vanella to leave the room.
When Prince and Lisle were alone, Lisle stated, “There's something I have
to let you know. I killed a snake. I mean I offed a snitch, I offed someone. I
offed a human being. I killed someone.” He then stated the victim was a son
of a police officer, but did not name him. Lisle did, however, state that it
would be on the news that evening. At 11 p.m., they all watched the news.
Upon seeing a story of a body found in the desert, Lisle seemed to display
a sense of satisfaction, while Lopez portrayed no reaction at all.

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The next day, August 23, 1994, Prince assisted Lisle and Lopez in
disposing of a trash bag that purportedly contained two pairs of tennis
shoes. Evans testified that within a couple days after the murder, he noticed
that Lisle and Lopez wore different tennis shoes than they had worn prior to
Justin’s death.

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Sometime between August 22, 1994, and August 25, 1994, Lisle
showed Prince a .380 caliber automatic gun, but explained that this was not
the weapon used to kill Justin. Lisle stated, “Don’t worry about that one.
That one’s long gone.”
On August 25, 1994, the police arrested Prince at his home for
possession of a controlled substance with intent to sell. While there, the
police observed Lisle sitting in a certain armchair. Later that day, upon
searching Prince’s house pursuant to a search warrant, the police found a
.380 caliber gun tucked into the seat cushions of the very chair on which
Lisle had been sitting. Although this gun was later determined not to be the
same weapon that killed Justin, it was discovered that the brand of bullets
found in the gun was the same brand used to shoot Justin.

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In late August 1994, Lisle informed his friend, John Melcher
(“Melcher”), that he was “laying low” because the police were trying to “get”
him for the murder of the North Las Vegas police chief’s son, but that the
police did not have enough evidence on him.
Lisle introduced Melcher to Lopez. Lopez told Melcher that he and
Lisle picked up Justin and took him to the desert. Lopez stopped the car,
and Lisle and Justin got out and went to the back of the car, whereupon
Lopez observed Lisle shoot Justin. Lopez was able to witness this incident
by looking at the rear-view mirror.
On October 22, 1994, Lisle, Melcher, and Evans were involved in the
murder of Kip Logan (“Logan”). Lisle was eventually convicted of first
degree murder and sentenced to death. [Footnote: Lisle was apparently
sitting in the passenger’s seat of a van while Melcher was driving it on the
freeway. Evans was sitting in the back seat behind Lisle. Lisle was making
gang hand signals and yelling at the cars that passed them on the right side.
Logan was a driver of a car next to them, who started to laugh at Lisle. Lisle
pulled out a gun and shot Logan, killing him.]

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Melcher and Evans eventually agreed to a plea bargain for their
participation in Logan’s death in exchange for testifying against Lisle for the
killing of both Logan and Justin. In addition, Prince plea bargained the
August 25, 1994 drug charges pending against him in exchange for
testifying at both murder trials.
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In early 1995, while Melcher and Lisle were incarcerated together
because of the Logan murder, Lisle told Melcher that he looked Justin in the
eyes before he killed him and that he got a thrill from it.

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In July 1995, Lisle and Lopez were arrested for Justin’s murder, and
on July 28, 1995, an information was filed charging Lisle and Lopez each
with murder with use of a deadly weapon and conspiracy to commit murder.
In addition, Lisle was charged with being an ex-felon in possession of a
firearm.

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Trial began on April 9, 1996, and concluded on April 18, 1996,
resulting in verdicts of first degree murder with use of a deadly weapon and
conspiracy to commit murder for both Lisle and Lopez. Lisle was also found
guilty of being an ex-felon in possession of a firearm. The penalty hearing
began April 22, 1996, and concluded on April 25, 1996, resulting in a
sentence of death for Lisle and a sentence of life in prison with the possibility
of parole for Lopez.

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Lisle v. State, 941 P.2d 459, 463-65 (Nev. 1997) (order filed as Exh. DDD (ECF No. 187-

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4)).

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In a separate case pending in this Court, Case No. 2:03-cv-1005-JCM-CWH, Lisle
seeks relief with respect to his conviction and death sentence for the Logan murder.

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In the case at issue here, regarding the Lusch murder, the judgment of conviction

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was entered on June 7, 1996. (See Judgment of Conviction, Exh. OO (ECF No. 186-15).)

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

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on June 17, 1997. (See Appellant’s Opening Brief, Exh. WW (ECF No. 186-23); see also

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Lisle, 941 P.2d 459.) The Nevada Supreme Court denied Lisle’s petition for rehearing.

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(See Order Denying Rehearing, Exh. GGG (ECF No. 187-7).) Lisle petitioned to the

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United States Supreme Court for certiorari; the petition was denied on October 5, 1998.

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(See Letter, Exh. KKK (ECF No. 187-11).) The Nevada Supreme Court’s remittitur was

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issued on November 3, 1998. (See Remittitur, Exh. MMM (ECF No. 187-13).)

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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 12, 1998. (See Petition for Writ of Habeas Corpus (Post-Conviction), Exh.

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NNN (ECF No. 187-14).) Counsel was appointed, and, with counsel, Lisle filed a

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supplement to his petition on June 30, 2000. (See Supplemental Points and Authorities,

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Exh. VVV (ECF No. 187-22).) The state district court denied the petition on November 29,

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2000. (See Findings of Fact, Conclusions of Law and Order, Exh. ZZZ (ECF No. 1875

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26).) Lisle appealed, and the Nevada Supreme Court affirmed the denial of the petition

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on July 9, 2002. (See Appellant’s Opening Brief, Exh. BBBB (ECF No. 188-2); Order of

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Affirmance, Exh. EEEE (ECF No. 188-5).) The remittitur was issued on August 5, 2002.

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(See Remittitur, Exh. EEEEa (ECF No. 188-6).)

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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 in this case was signed on his

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

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the Court appointed the Federal Public Defender for the District of Nevada (“FPD”) to

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represent him. (ECF Nos. 5, 13, 15.) Lisle then filed a motion for leave to conduct

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discovery (ECF No. 47), and extensive discovery proceedings ensued. On May 20, 2008,

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Lisle filed a first amended habeas petition. (ECF No. 72.)

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On July 7, 2008, Lisle filed a motion for stay and abeyance. (ECF No. 78.)

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Respondents did not oppose that motion, and on August 4, 2008, this case was stayed

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pending Lisle’s exhaustion of claims in state court. (ECF No. 81.)

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On October 3, 2008, Lisle filed a second state-court habeas petition. (See Petition

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for Writ of Habeas Corpus (Post-Conviction), Exh. FFFF (ECF Nos. 189-1, 189-2, 189-

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3); see also Amended Petition for Writ of Habeas Corpus (Post-Conviction), Exh. GGGG

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(ECF Nos. 190-1, 190-2, 190-3, 190-4).) The state district court dismissed that petition,

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on procedural grounds, on August 25, 2009. (See Order, Exh. LLLL (ECF No. 192-4).)

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Lisle appealed, and the Nevada Supreme Court affirmed on February 24, 2012. (See

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Order of Affirmance, Exh. QQQQ (ECF No. 193-4).)

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The stay of this case was lifted, upon a motion by Lisle, on December 12, 2012.

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(ECF No. 119.) On March 25, 2013, Lisle filed a second amended petition for writ of

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habeas corpus. (ECF No. 129.) On April 28, 2014, Lisle filed a third amended petition.

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(ECF No. 176.)

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Respondents filed a motion to dismiss Lisle’s third amended habeas petition on

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December 26, 2014. (ECF No. 182.) On May 12, 2015, Lisle’s counsel—the FPD—filed

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an ex parte motion to withdraw (ECF No. 213 (sealed)), informing the court that they had
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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 ultimately denied

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

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tolling argument for Lisle. (ECF Nos. 225 (sealed), 231 (sealed), 233.) Lisle’s separate

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counsel filed memoranda of supplemental argument in response to the motion to dismiss

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the third amended petition. (ECF Nos. 240, 262.)

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While the motion to dismiss the third amended petition was pending, Lisle filed a

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motion for leave to supplement his petition. (ECF No. 268.) On March 17, 2017, the Court

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granted that motion and directed Lisle to file a fourth amended petition including the new

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material. (ECF No. 284.) The Court denied the motion to dismiss the third amended

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petition, without prejudice, as moot.

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Lisle filed his fourth amended petition for writ of habeas corpus (ECF No. 292),

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now the operative petition in this case, on April 21, 2017. The Court reads Lisle’s fourth

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amended petition to assert the following discrete claims:

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1. Lisle’s federal constitutional rights were violated as a result of ineffective
assistance of counsel. (Fourth Amended Petition (ECF No. 292) at 1166.)
A. Trial counsel were ineffective for failing to present available
mitigating evidence at the penalty phase of Lisle’s trial. (Id. at 1257.)
B. Trial counsel were ineffective at the guilt phase of Lisle’s trial. (Id.
at 57-65.)
C. Lisle’s federal constitutional rights were violated as a result of the
cumulative effect of ineffective assistance of his counsel. (Id. at
65.)
D. Lisle received ineffective assistance of counsel on his direct
appeal and in his state post-conviction proceedings. (Id. at 6566.)
2. Lisle’s death sentence is in violation of the federal constitution, because
“the statutory aggravating factors could not be applied constitutionally to
make Mr. Lisle death-eligible.” (Id. at 67-233.)
A. “The kidnapping aggravating circumstance is unconstitutional as
applied to Mr. Lisle.” (Id. at 67-69.)
B. “The ‘previously convicted of another murder’ aggravator is
unconstitutional as applied to Mr. Lisle.” (Id. at 69-229.)
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C. “Counsel at all proceedings failed to raise the unconstitutionality
of the aggravating factors applied at the Lusch proceedings.” (Id.
at 229.)
3. Lisle’s federal constitutional rights were violated, in the guilt phase of his
trial, as a result of the admission of evidence of other bad acts by Lisle.
(Id. at 234-48.)
A. Lisle’s federal constitutional rights were violated as a result of
admission of evidence regarding the Logan homicide. (Id. at 23541.)
B. Lisle’s federal constitutional rights were violated as a result of
admission of evidence “that Melcher was an ‘enforcer’ for Lisle.”
(Id. at 241-48.)
4. Lisle’s federal constitutional rights were violated “because the trial court
admitted prejudicial extrajudicial statements of Mr. Lisle’s co-defendant
Jerry Lopez.” (Id. at 249-56.)
5. Lisle’s federal constitutional rights were violated “because the trial
court’s instruction to Larry Prince to testify falsely corroded judicial
integrity and rendered Mr. Lisle’s proceedings fundamentally unfair.” (Id.
at 257-63.)
6. Lisle’s federal constitutional rights were violated “because the trial
court’s striking of Janice Sykes’s references to Jerry Lopez deprived Mr.
Lisle of an opportunity to present mitigating evidence.” (Id. at 264-68.)
7. Lisle’s federal constitutional rights were violated “because trial court
error and the ineffective assistance of counsel during voir dire
contaminated Mr. Lisle’s proceedings.” (Id. at 269-78.)

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A. “Mr. Lisle’s jury was death-biased.” (Id. at 269-73.)

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B. “A death-biased juror was seated.” (Id. at 273-75.)

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C. “The trial court erroneously denied trial counsel’s motion for a
sequestered jury.” (Id. at 275-77.)

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D. “The errors in the voir dire process should be considered singly
and cumulatively.” (Id. at 277-78.)
E. Lisle’s counsel on direct appeal and in his state post-conviction
proceedings “failed to investigate, develop, and present this
claim.” (Id. at 278.)
8. Lisle’s federal constitutional rights were violated “because prosecutorial
misconduct deprived Mr. Lisle of fundamentally fair proceedings.” (Id. at
279-91.)
A. “The State improperly expressed personal opinions during
closing arguments.” (Id. at 280-81.)

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B. “The State improperly commented on the lack of mitigating
evidence and the role of mitigating circumstances.” (Id. at 28183.)
1. “The State made improper comments regarding Mr. Lisle’s
mitigation presentation.” (Id. at 282.)
2. “The State misstated the law regarding mercy.” (Id. at 28283.)
C. “The State improperly encouraged jurors to sentence Mr. Lisle
based on passion and prejudice.” (Id. at 283-85.)
D. “The State improperly disparaged trial counsel and Mr. Lisle.” (Id.
at 285-87.)
E. “The State argued the death penalty was necessary to prevent
Mr. Lisle from killing again.” (Id. at 287-89.)
F. “The State made a misrepresentation to the trial court.” (Id. at
289.)
G. The State’s misconduct should be considered singly and
cumulatively. (Id. at 289-90.)
H. “Trial, appellate, and post-conviction counsel were ineffective for
failing to challenge the extensive prosecutorial misconduct which
occurred in Mr. Lisle’s trial.” (Id. at 290-91.)
9. Lisle’s federal constitutional rights were violated “because Mr. Lisle was
forced to wear a stun belt and shackles during the guilt and penalty
phases of his trial.” (Id. at 292-96.)
A. “The trial court erred in failing to conduct a hearing to determine
whether an essential state interest necessitated the use of a stun
belt and shackles.” (Id. at 293-95.)
B. “Trial counsel were ineffective for failing to object to the
restraints.” (Id. at 295.)
C. “Appellate and post-conviction counsel were ineffective in failing
to raise this claim.” (Id. at 295-96.)
10. Lisle’s federal constitutional rights were violated “because the trial court
erroneously denied Mr. Lisle’s motion to sever the charge of being an
ex-felon in possession of a firearm from his first-degree murder charge.”
(Id. at 297-98.)
11. Lisle’s federal constitutional rights were violated “because the trial court
erroneously admitted the out-of-court testimony of a witness who
inculpated Mr. Lisle.” (Id. at 299-306.)
12. Lisle’s federal constitutional rights were violated “because the State’s
failure to disclose material exculpatory and impeachment evidence
deprived Mr. Lisle of fundamentally fair proceedings.” (Id. at 307-28.)
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A. “The State failed to disclose material impeachment evidence
related to its witness Adam Evans.” (Id. at 308-16.)
B. “The State failed to disclose material impeachment evidence
related to its witness John Melcher.” (Id. at 317-22.)
C. “The State failed to turn over handwritten notes of a conversation
with Mr. Melcher.” (Id. at 323.)
D. “The CCDA’s ‘open file’ policy failed to comply with constitutional
discovery obligations.” (Id. at 323-25.)
E. “The State failed to disclose cash payments made to witnesses.”
(Id. at 325-28.)
13. Lisle’s federal constitutional rights were violated “because the trial court
erroneously denied Mr. Lisle’s motion to call John Melcher’s attorney to
testify.” (Id. at 329-31.)
14. Lisle’s federal constitutional rights were violated “because the trial court
did not strike the testimony of John Melcher because the State had
instructed Mr. Melcher not to speak to Mr. Lisle’s attorneys.” (Id. at 33234.)
15. Lisle’s federal constitutional rights were violated “because the trial court
erroneously instructed the jury at the guilt and penalty phase
proceedings.” (Id. at 335-56.)
A. The trial court improperly instructed the jury in the guilt phase of
the trial. (Id. at 335-51.)

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1. The trial court improperly instructed the jury regarding the
elements of first-degree murder. (Id. at 335-41.)

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2. The trial court improperly instructed the jury regarding
reasonable doubt. (Id. at 342-43.)

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3. The trial court failed “to give a curative instruction after the
erroneous introduction of prior bad act evidence.” (Id. at
344.)
4. The trial court “failed to properly instruct the jury on the
theories of aiding and abetting and conspiracy to commit
murder.” (Id. at 344-47.)

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5. The trial court did not properly instruct the jury regarding
possession of a deadly weapon. (Id. at 347-49.)
6. The trial court gave an “equal and exact justice
instruction,” which “improperly minimized the State’s
burden of proof.” (Id. at 349-51.)
B. The trial court improperly instructed the jury in the penalty phase
of the trial. (Id. at 351-56.)

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1. The trial court gave an “anti-sympathy” instruction. (Id. at
351-53.)
2. The trial court failed to instruct the jury “regarding the
limited use of prior bad act evidence.” (Id. at 353-56.)
16. Lisle’s federal constitutional rights were violated “because the trial court
erroneously denied Mr. Lisle’s motion to sever his trial from that of his
co-defendant.” (Id. at 357-67.)
17. Lisle’s federal constitutional rights were violated “because the trial court
erroneously denied Mr. Lisle’s motion to compel discovery of the State’s
written notes of an interview with its key witness John Melcher.” (Id. at
368-70.)
18. Lisle’s federal constitutional rights were violated “because the trial court
erroneously struck Darlene Falvey’s testimony, depriving Mr. Lisle of an
opportunity to rebut evidence of aggravating circumstances.” (Id. at 37177.)

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19. Lisle’s federal constitutional rights were violated “because the State
improperly referred to the fact that another jury had sentenced Mr. Lisle
to death.” (Id. at 378-81.)

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20. Claim 20 reiterates claims made elsewhere in the Petition.

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21. Lisle’s federal constitutional rights were violated “by the failure to submit
all of the elements of capital eligibility to the grand jury or to a court for
a probable cause determination.” (Id. at 387-88.)

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22. Lethal injection is cruel and unusual punishment. (Id. at 389-414.)

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A. “Lethal injection is unconstitutional in all circumstances.” (Id. at
389-98.)
B. “Lethal injection in Nevada is unconstitutional.” (Id. at 398-414.)
23. 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
415-22.)
24. Lisle’s federal constitutional rights were violated “because the state
courts failed to provide Mr. Lisle with the effective assistance of counsel
during the appellate and post-conviction stages of his proceedings.” (Id.
at 423-32.)
25. 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 433-36.)
26. Lisle’s death sentence is invalid under the federal constitution “because
the death penalty is cruel and unusual punishment in all circumstances.”
(Id. at 437-38.)
11

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

27. “Mr. Lisle’s sentence violates the International Covenant on Civil and
Political Rights.” (Id. at 439-40.)
28. Lisle’s federal constitutional rights were violated “due to the cumulative
errors in the admission of evidence and instructions, gross misconduct
by state officials and witnesses, and the systematic deprivation of Mr.
Lisle’s right to the effective assistance of counsel.” (Id. at 441-42.)
29. Lisle’s conviction and death sentence are invalid under the federal
constitution “because he may become incompetent to be executed.” (Id.
at 443.)
30. Lisle’s “trial, conviction, sentence, appeal and all post-conviction
proceedings are and were fundamentally unfair,” and in violation of the
federal constitution, “because severe mental and physical illness
rendered him incompetent during those proceedings,” and because of
“maltreatment while incarcerated.” (Id. at 444-64.)
A. “Mr. Lisle had known mental and physical issues . . . before his
trial.” (Id. at 445-48.)
B. “Circumstances of Mr. Lisle’s confinement at Ely State Prison
have exacerbated Mr. Lisle’s physical and mental health issues.”
(Id. at 448-63.)
31. 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 465-68.)
32. Lisle’s federal constitutional rights were violated “because the State
committed prosecutorial misconduct in presenting testimony that
improperly bolstered its witnesses; the trial court erred in allowing 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 469-78.)
33. Lisle’s federal constitutional rights were violated “because the trial court
erroneously admitted hearsay evidence of an alleged prior bad act
committed by Mr. Lisle.” (Id. at 479-85.)
34. Lisle’s federal constitutional rights were violated “because the trial court
erred in allowing the State to present evidence of Mr. Lisle’s gang
membership; trial counsel were ineffective when they failed to object to
evidence of Mr. Lisle’s gang membership and even elicited some
evidence about that issue themselves; and the State committed
misconduct when it elicited evidence about Mr. Lisle’s gang membership
in violation of the trial court’s pretrial order.” (Id. at 486-94.)
35. Lisle’s federal constitutional rights were violated “because trial counsel
rendered constitutionally deficient assistance when they failed to cover
their client’s tattoos for trial and failed to object to the State’s gratuitous
and inflammatory references to the tattoos; and because the trial court
erred in admitting State’s Exhibit 31.” (Id. at 495-501.)
12

3

36. Lisle’s federal constitutional rights were violated because “the trial court
erroneously admitted the testimony of Edward Ortiz, and trial counsel
rendered deficient performance when they failed to request a limiting
instruction on the jury’s use of that testimony, and the trial court
erroneously admitted the testimony of Jeff Kurtz.” (Id. at 502-09.)

4

On June 20, 2017, Respondents filed their motion to dismiss the fourth amended

5

petition. (ECF No. 293.) Lisle filed an opposition to that motion on August 28, 2017. (ECF

6

No. 298.) In addition, the Court considers, with respect to the motion to dismiss the fourth

7

amended petition, the memoranda of supplemental argument filed by Lisle’s separate

8

counsel in response to the motion to dismiss the third amended petition. (ECF Nos. 240,

9

262.) On August 28, 2017, Lisle also filed a motion for leave to conduct discovery (ECF

10

No. 300), a motion for medical examination and site inspection (ECF No. 305), and a

11

motion for evidentiary hearing (ECF No. 303). On October 9, 2017, Respondents filed a

12

reply to Lisle’s opposition to the motion to dismiss (ECF No. 309), and oppositions to

13

Lisle’s three motions (ECF Nos. 310, 311, 312). On October 30, 2017, Lisle filed replies

14

in support of his motions. (ECF Nos. 314, 315, 316.)

15

III.

1
2

16
17

Discussion
A.

Statute of Limitations
1.

Legal Standards

18

The Antiterrorism and Effective Death Penalty Act (“AEDPA”), enacted in 1996,

19

established a one-year statute of limitations for federal habeas petitions filed by prisoners

20

challenging state convictions or sentences; the statue provides:

21
22
23
24
25
26
27
28

(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a
State court. The limitation period shall run from the latest of -(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
13

1

recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or

2
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence.

3
4
5

28 U.S.C. § 2244(d)(1).

6

The AEDPA statute of limitations is tolled during the time that a properly filed

7

application for state post-conviction or other collateral review is pending in state court.

8

See 28 U.S.C. § 2244(d)(2).

9

A habeas petitioner is entitled to equitable tolling of the AEDPA statute of

10

limitations if the petitioner shows “‘(1) that he has been pursuing his rights diligently, and

11

(2) that some extraordinary circumstance stood in his way’ and prevented timely filing.”

12

Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408,

13

418 (2005)); Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009).

14

2.

Expiration of the Limitations Period

15

Lisle’s conviction became final on October 5, 1998, when the United States

16

Supreme Court denied his petition for certiorari. See Rhines v. Weber, 544 U.S. 269, 272

17

(2005).

18

Lisle filed his first state-court petition for writ of habeas corpus thirty-eight days

19

later,

20

28 U.S.C. § 2244(d)(2). Absent any applicable equitable tolling, those thirty-eight days

21

ran against the one-year limitations period.

on

November 12, 1998,

tolling the AEDPA

limitations period

under

22

Lisle’s first state habeas action was completed, and the statutory tolling relative to

23

that action ceased, when the Nevada Supreme Court issued its remittitur, after affirming

24

the denial of Lisle’s petition, on August 5, 2002.

25

It was then 380 days later when Lisle mailed his federal habeas petition to this

26

Court for filing, on August 20, 2003. (ECF No. 1.) That 380 days also ran against the one-

27

year limitations period, unless equitable tolling is warranted during that period.

28

///
14

1

Therefore, absent equitable tolling, a total of 418 days ran against the one-year

2

AEDPA limitations period before Lisle filed his original habeas petition. Without equitable

3

tolling, Lisle’s original habeas petition was filed fifty-three days late and would be barred

4

by the statute of limitations.

5

Beyond that, Lisle’s first amended petition was filed more than four and a half years

6

later, on May 20, 2008. (ECF No. 72.) His second amended petition was filed more than

7

four-and-a-half years after that, on March 25, 2013. (ECF No. 129.) About a year later,

8

on April 28, 2014, Lisle filed his third amended petition. (ECF No. 176.) Finally, another

9

three years later, Lisle filed his fourth amended petition. (ECF No. 292.)

10

3.

Lisle’s Waiver Argument

11

Lisle argues that Respondents waived the statute of limitations defense because

12

they did not raise it until they filed their motion to dismiss Lisle’s third amended petition

13

on December 26, 2014. (See Opposition to Motion to Dismiss (ECF No. 298) at 6-14.)

14

Specifically, Lisle argues that, under Federal Rule of Civil Procedure 12(g)(2),

15

Respondents waived the argument that his original petition was untimely by not asserting

16

it in a motion to dismiss Lisle’s original petition, which motion was filed on October 4, 2004

17

(ECF No. 43). (See id.)

18

The Court need not reach this issue, and declines to do so, as the Court

19

determines that Lisle’s original petition was timely filed as a result of equitable tolling.

20

(See infra section III(A)(4).)

21
22

Equitable Tolling from the Completion of Lisle’s First State
Habeas Action to the Appointment of Counsel in His Federal
Habeas Action

23

Lisle argues, and he points to evidence supporting his argument, that equitable

24

tolling is warranted because of conditions of his confinement at Ely State Prison (“ESP”),

25

because of physical and mental health problems, and because he was abandoned by his

26

counsel. (See Opposition to Motion to Dismiss (ECF No. 298) at 15-45.) The Court finds

27

this argument to be meritorious, and will grant such equitable tolling.

28

///

4.

15

1

Lisle makes a compelling showing that, following the completion of his state

2

habeas action, and until the time that counsel was appointed for him in this federal habeas

3

action, he suffered from mental illness, he suffered from physical illness, he was

4

imprisoned under unusually restrictive conditions, and he was essentially abandoned by

5

his counsel with respect to the initiation and litigation of his federal habeas action. (See

6

Opposition to Motion to Dismiss (ECF No. 298) at 15-45; Supplement to Petitioner’s

7

Opposition to Motion to Dismiss (ECF No. 240).) Taken together, the Court determines

8

that these circumstances were extraordinary and prevented Lisle from complying with the

9

AEDPA statute of limitations in initiating this action. See Holland, 560 U.S. at 649

10

(regarding standard for equitable tolling); Ramirez, 571 F.3d at 997 (same).

11

The material presented by Lisle in opposition to the motion to dismiss shows that

12

during the time at issue here—August 2002 to January 2004—Lisle suffered from

13

significant physical and mental health issues. (See Opposition to Motion to Dismiss (ECF

14

No. 298) at 15-40.) Furthermore, during this time he was incarcerated in extremely

15

restricted solitary confinement at ESP. (See id.) In this Court’s view, Lisle could not have

16

been expected, under these circumstances, to timely initiate this action.

17

Furthermore, during the time in question, despite Lisle’s inability to initiate a federal

18

habeas action on his own behalf, the attorneys who represented Lisle in his first state

19

habeas action abandoned him, and an attorney at the FPD’s office, who had represented

20

Lisle previously, offered no help. Soon after Lisle’s state habeas case was completed, his

21

state habeas counsel informed him of that and indicated that a federal action would be

22

the next step; however, Lisle’s state habeas counsel did not instruct Lisle what he needed

23

to do to initiate a federal action, and they did not make clear to Lisle that they no longer

24

would represent him. Then, despite uncertainty whether Lisle was still represented by this

25

state habeas counsel, his state habeas counsel ultimately signed Lisle’s skeletal original

26

federal petition, which was filed for him in an untimely manner. Meanwhile, during the

27

time in question, before the AEDPA limitations period ran out, Lisle wrote to an attorney

28

who had represented him at trial and who was then at the office of the FPD, seeking help,
16

1

but received no assistance from her. (See Supplement to Petitioner’s Opposition to

2

Motion to Dismiss (ECF No. 240).)

3

The Court finds that these were extraordinary circumstances, and they prevented

4

Lisle from initiating this action in a timely manner. The Court will grant Lisle equitable

5

tolling from August 5, 2002, the date on which his state habeas action was completed, to

6

January 22, 2004, the date on which the FPD was appointed to represent Lisle in this

7

action.

8

This is not to say that the Court would necessarily find any one of the factors

9

affecting Lisle—his mental illness, his physical illness, the conditions of his confinement,

10

the actions of his state habeas counsel and the FPD—as sufficient, in itself, to warrant

11

equitable tolling. However, taking these factors together, the Court concludes that

12

equitable tolling is warranted for this period of time in this case.

13
14

5.

Equitable Tolling from the Appointment of Counsel in This
Action to the Date of the Supreme Court’s Decision in Mayle

15

Next, the Court determines that equitable tolling is warranted from when counsel

16

was appointed for him, on January 22, 2004, until June 23, 2005, the date of the Supreme

17

Court’s decision in Mayle v. Felix, 545 U.S. 644 (2005).

18

Lisle’s original habeas petition in this case was filed on August 20, 2003. (ECF No.

19

1.) In that petition, filed on a court form, in the section where the petition was to state his

20

first ground for relief, Lisle’s petition stated only: “See attached pleadings. Exs. 3, 4.” (See

21

Petition for Writ of Habeas Corpus (ECF No. 1) at 3.) Exhibits 3 and 4, attached to the

22

petition, were copies of Lisle’s opening brief and reply brief on the appeal in his first state

23

habeas action. Lisle’s original petition, then, was skeletal, raising—as this Court reads

24

it—only the same claims that he raised on the appeal in his first state habeas action.

25

Then, as Lisle points out in his opposition to the motion to dismiss (see Opposition

26

to Motion to Dismiss (ECF No. 298) at 56-76), after counsel was appointed for him, the

27

Court’s scheduling orders set deadlines related to discovery proceedings and for Lisle to

28

file an amended petition. Lisle argues that he relied upon the Court’s scheduling orders
17

1

in determining when to file his amended petition, and he was, thereby, lulled into filing his

2

amended petition nearly five years after he filed his initial petition. (See id.) Instructions

3

from a court do not serve as a basis for equitable tolling unless the court “affirmatively

4

misled” the petitioner. Ford v. Pliler, 590 F.3d 782, 786-87 (9th Cir. 2009). The Court did

5

not affirmatively mislead Lisle. As Lisle acknowledges, the Court’s scheduling orders were

6

based on procedures in capital cases that were developed before the AEDPA statute of

7

limitations was enacted. (See Opposition to Motion to Dismiss (ECF No. 298) at 59

8

(recognizing that the procedures were adopted in 1992).) The scheduling orders made

9

no mention of the statute of limitations, and did not indicate that they were meant to affect

10

the application of the statute of limitations in any manner. The scheduling orders granted

11

leave for Lisle to conduct discovery, set time limits for Lisle to do investigation and conduct

12

discovery, and set time limits for Lisle to file his amended petition. Those orders did not

13

make any statement about, or have any bearing on, the operation of the statute of

14

limitations. Lisle has not made any factual allegation, or proffered any evidence,

15

suggesting otherwise.

16

Nevertheless, the Court recognizes that before the Supreme Court decided Mayle,

17

there was uncertainty in the law regarding how an amended petition related back to an

18

original petition, with respect to the operation of the statute of limitations. For example,

19

on August 9, 2004, in the Mayle case itself, Felix v. Mayle, 379 F.3d 612 (9th Cir. 2004),

20

the Ninth Circuit Court of Appeals held that new claims in an amended petition related

21

back to the filing of the original petition and were not time-barred, regardless of whether

22

or not the new claims were related to claims in the original petition. The uncertainty in that

23

regard was not cleared up until June 23, 2005, when the United States Supreme Court

24

ruled, in Mayle, that claims in an amended habeas petition do not relate back to the filing

25

of the original petition if they assert new grounds for relief supported by facts that differ in

26

both time and type from those set forth in the original petition. See Mayle, 545 U.S. at

27

650.

28

///
18

1

In this case, given the skeletal nature of Lisle’s original petition, and in light of the

2

uncertainty in the law at the time regarding the relation back of claims in an amended

3

habeas petition to those in an earlier petition, it is not surprising that Lisle’s counsel did

4

not file Lisle’s amended petition before Mayle was decided by the Supreme Court. The

5

Court determines that these were extraordinary circumstances that led Lisle’s counsel to

6

delay in filing his amended petition. Under these circumstances, equitable tolling is

7

warranted from the appointment of the FPD on October 15, 2003, to the date of the Mayle

8

decision, June 23, 2005.

9

6.

No Equitable Tolling after June 23, 2005

10

With the benefit of the equitable tolling discussed above, as of June 23, 2005,

11

thirty-eight days had run against the one-year limitations period. Without any further

12

tolling, the limitations period would lapse on May 16, 2006.

13
14

The Court finds that Lisle does not make any colorable argument that equitable
tolling is warranted after June 23, 2005, the date of the Mayle decision.

15

The Mayle decision cleared up any uncertainty regarding the relation back of

16

claims in an amended habeas petition to the filing of an earlier petition. The Court finds

17

meritless Lisle’s argument that he was misled by court orders—court orders that did not

18

mention the statute of limitations or purport to have any effect on its application—after the

19

Supreme Court’s Mayle decision, such that he was compelled to continue to delay in filing

20

his amended petition.

21

The Court also finds meritless Lisle’s argument that delays in discovery

22

proceedings, alleged by Lisle to have been caused by Respondents, the Clark County

23

District Attorney’s office, and the Las Vegas Metropolitan Police Department, led to the

24

late filing of his amended petition. (See Opposition to Motion to Dismiss (ECF No. 232)

25

at 127-29.) Nothing prevented Lisle from filing his amended petition before the completion

26

of the discovery. The scheduling orders set a deadline for the filing of the amended

27

petition that was after the completion of discovery, but there was no order that the

28

///
19

1

amended petition could not have been filed sooner. There is no basis shown for equitable

2

tolling after June 23, 2005.

3

Also, the Court finds that after the appointment of counsel for Lisle, equitable tolling

4

is not warranted on account of Lisle’s physical and mental illness, or on account of prison

5

conditions. (See Opposition to Motion to Dismiss (ECF No. 298) at 47-56.) Those

6

circumstances had no impact on his counsel’s ability to draft and file his amended petition.

7

Furthermore, the Court is not persuaded by the notion that staffing issues at the

8

office of the FPD constituted extraordinary circumstances preventing the timely filing of

9

the amended petition. (See id. at 122-24.) The FPD’s office may have staffing challenges

10

no different from any than other organizations. However, it is plain from the history of this

11

case—most importantly, the record regarding the discovery litigation in 2004, 2005, and

12

2006—that the FPD had sufficient staffing and resources to comply with the statute of

13

limitations.

14

B.

15

Exhaustion of State Court Remedies
1.

Legal Standards

16

A federal court may not grant relief on a habeas corpus claim not exhausted in

17

state court. 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of federal-

18

state comity, and is designed to give state courts the initial opportunity to correct alleged

19

constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust

20

a claim, a petitioner must fairly present that claim to the State’s highest court, and must

21

give that court the opportunity to address and resolve it. See Duncan v. Henry, 513 U.S.

22

364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). The “fair

23

presentation” requirement is satisfied when the claim has been presented to the highest

24

state court by describing the operative facts and the legal theory upon which the federal

25

claim is based. See Anderson v. Harless, 459 U.S. 4, 6 (1982); Batchelor v. Cupp, 693

26

F.2d 859, 862 (9th Cir.1982). To fairly present a federal constitutional claim to the state

27

court, the petitioner must alert the court to the fact that he asserts a claim under the United

28

///
20

1

States Constitution. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citing Duncan,

2

513 U.S. at 365-66).

3

2.

4

Nevada Supreme Court’s Mandatory Review under NRS §
177.055

5

With respect to certain of his claims—Claims 2, 9, 15B, 16, 19 and 31—Lisle

6

argues that the Nevada Supreme Court addressed his claims, on his direct appeal, as

7

part of its mandatory review under NRS § 177.055. (See Opposition to Motion to Dismiss

8

(ECF No. 298) at 130-34.) NRS § 177.055 requires the Nevada Supreme Court to

9

consider: whether the evidence supported the finding of the aggravating circumstances;

10

whether the sentence was imposed under the influence of passion, prejudice, or any other

11

arbitrary factor; and whether the death sentence was excessive. Lisle argues that, by

12

virtue of this provision, the Nevada Supreme Court ruled upon Claims 2, 9, 15B, 16, 19

13

and 31.

14

To show that a claim was exhausted on account of the Nevada Supreme Court’s

15

mandatory review under NRS § 177.055, Lisle must show that the claims at issue were

16

“clearly encompassed” within the scope of NRS § 177.055 and “readily apparent” in the

17

record reviewed by the Nevada Supreme Court. See Comer v. Schriro, 463 F.3d 934,

18

953-56 (9th Cir. 2006).

19

The Court determines that Lisle does not show that Claims 2, 9, 15B, 16, 19, and

20

31 were clearly encompassed within the scope of NRS § 177.055, and Lisle does not

21

show them to have been “readily apparent” in the record reviewed by the Nevada

22

Supreme Court. The Court finds that these claims were not exhausted on Lisle’s direct

23

appeal by virtue of the Nevada Supreme Court’s mandatory review under NRS § 177.055.

24

3.

Anticipatory Default

25

The Supreme Court has recognized that under certain circumstances it may be

26

appropriate for a federal court to anticipate the state-law procedural bar of an

27

unexhausted claim and to treat such a claim as subject to the procedural default doctrine.

28

“An unexhausted claim will be procedurally defaulted, if state procedural rules would now
21

1

bar the petitioner from bringing the claim in state court.” Dickens v. Ryan, 740 F.3d 1302,

2

1317 (9th Cir. 2014) (citing Coleman v. Thompson, 501 U.S. 722, 731 (1991)).

3

In light of the procedural history of this case, and, in particular, the rulings of the

4

state courts in Lisle’s second state habeas action, it is plain that Lisle’s unexhausted

5

claims would be ruled procedurally barred in state court if Lisle were to return to state

6

court to attempt to exhaust those claims. Therefore, the anticipatory default doctrine

7

applies, and the Court considers Lisle’s unexhausted claims to be technically exhausted,

8

but subject to the procedural default doctrine. See Dickens, 740 F.3d at 1317.

9

C.

10

Procedural Default
1.

Legal Standards

11

In Coleman v. Thompson, the Supreme Court held that a state prisoner who fails

12

to comply with the State’s procedural requirements in presenting his claims is barred by

13

the adequate and independent state ground doctrine from obtaining a writ of habeas

14

corpus in federal court. Coleman, 501 U.S. at 731-32 (“Just as in those cases in which a

15

state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet

16

the State’s procedural requirements for presenting his federal claims has deprived the

17

state courts of an opportunity to address those claims in the first instance.”). Where such

18

a procedural default constitutes an adequate and independent state ground for denial of

19

habeas corpus, the default may be excused only if “a constitutional violation has probably

20

resulted in the conviction of one who is actually innocent,” or if the prisoner demonstrates

21

cause for the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496

22

(1986).

23

To demonstrate cause for a procedural default, the petitioner must “show that

24

some objective factor external to the defense impeded” his efforts to comply with the state

25

procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external impediment

26

must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499

27

U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner bears “the burden

28

of showing not merely that the errors [complained of] constituted a possibility of prejudice,
22

1

but that they worked to his actual and substantial disadvantage, infecting his entire

2

[proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603

3

(9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 (1982)).

4

In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled that ineffective

5

assistance of post-conviction counsel may serve as cause, to overcome the procedural

6

default of a claim of ineffective assistance of trial counsel. In Martinez, the Supreme Court

7

noted that it had previously held, in Coleman, that “an attorney’s negligence in a

8

postconviction proceeding does not establish cause” to excuse a procedural default.

9

Martinez, 566 U.S. at 15 (citing Coleman, 501 U.S. at 746-47). The Martinez Court,

10

however, “qualif[ied] Coleman by recognizing a narrow exception: inadequate assistance

11

of counsel at initial-review collateral proceedings may establish cause for a prisoner’s

12

procedural default of a claim of ineffective assistance at trial.” Id. at 9. The Court described

13

“initial-review collateral proceedings” as “collateral proceedings which provide the first

14

occasion to raise a claim of ineffective assistance at trial.” Id. at 8.

15

2.

The Procedural Default in This Case

16

On Lisle’s direct appeal and the appeal in his first state habeas action, the Nevada

17

Supreme Court addressed his claims on their merits. (See Lisle, 941 P.2d 459 (opinion

18

on direct appeal); Order of Affirmance, Exh. EEEE (ECF No. 188-5) (opinion on appeal

19

in first state habeas action).) Therefore, claims asserted by Lisle on his direct appeal and

20

on the appeal in his first state habeas action were not procedurally barred in state court

21

and are not subject to the procedural default doctrine in this case.

22

On Lisle’s appeal in his second state habeas action, however, the Nevada

23

Supreme Court ruled that the claims he asserted for the first time in state court in that

24

action were barred by NRS §§ 34.726 (statute of limitations), 34.810 (successive

25

petitions), and 34.800 (laches). (See Order of Affirmance, Exh. QQQQ (ECF No. 193-4).)

26

Therefore, claims exhausted by Lisle in state court only in his second state habeas action

27

are subject to the procedural default doctrine.

28

///
23

1

3.

Adequacy of the State Procedural Bars

2

Lisle argues that the state procedural rules applied to bar his claims in his second

3

state habeas action were not adequate to support application of the procedural default

4

doctrine. (See Opposition to Motion to Dismiss (ECF No. 298) at 154-57, 203-04.)

5

A state procedural rule is “adequate” if it was “clear, consistently applied, and well-

6

established at the time of the petitioner’s purported default.” Calderon v. U.S. Dist. Court

7

(Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (citation and internal quotation marks omitted);

8

see also Ford v. Georgia, 498 U.S. 411, 424 (1991) (citation and internal quotation marks

9

omitted) (state procedural rule adequate if “firmly established and regularly followed by

10

the time as of which it is to be applied”); Lambright v. Stewart, 241 F.3d 1201, 1203 (9th

11

Cir. 2001).

12

In Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003), the Ninth Circuit Court

13

of Appeals established a burden-shifting test for analyzing adequacy. Under Bennett, the

14

state carries the initial burden of pleading “the existence of an independent and adequate

15

state procedural ground as an affirmative defense.” Bennett, 322 F.3d at 586. The burden

16

then shifts to the petitioner “to place that defense in issue,” which the petitioner may do

17

“by asserting specific factual allegations that demonstrate the inadequacy of the state

18

procedure, including citation to authority demonstrating inconsistent application of the

19

rule.” Id. If the petitioner meets this burden, “the ultimate burden” of proving the adequacy

20

of the procedural rule rests with the State, which must demonstrate “that the state

21

procedural rule has been regularly and consistently applied in habeas actions.” Id.; see

22

also King v. Lamarque, 464 F.3d 963, 966-67 (9th Cir. 2006).

23

Here, Respondents meet their initial burden under Bennett by asserting that the

24

Nevada Supreme Court affirmed the dismissal of Lisle’s second state habeas action

25

based on independent and adequate state procedural grounds. (See Motion to Dismiss

26

(ECF No. 293) at 21; Order of Affirmance, Exh. QQQQ (ECF No. 193-4).) The Nevada

27

Supreme Court ruled that the claims Lisle asserted for the first time in state court in his

28

second state habeas action were barred by NRS §§ 34.726 (statute of limitations), 34.810
24

1

(successive petitions) and 34.800 (laches). (See Order of Affirmance, Exh. QQQQ (ECF

2

No. 193-4).) Lisle argues that NRS §§ 34.726 and 34.810 were inadequate to support

3

application of the procedural default doctrine. (See Opposition to Motion to Dismiss (ECF

4

No. 298) at 154-57, 203-04.)

5

Regarding NRS §§ 34.726 and 34.800, the Nevada statute of limitations and

6

laches rule, the Ninth Circuit Court of Appeals has held those rules to be adequate to

7

support application of the procedural default defense. See Moran v. McDaniel, 80 F.3d

8

1261, 1269-70 (9th Cir. 1996); Loveland v. Hatcher, 231 F.3d 640, 642-63 (9th Cir. 2000).

9

The Ninth Circuit Court of Appeals has never ruled NRS §§ 34.726 or 34.800 to be

10

inadequate. The Court finds that Lisle does not show NRS §§ 34.726 or 34.800 to be

11

other than clear, consistently applied and well-established. NRS §§ 34.726 and 34.800

12

are adequate to support the procedural default defense asserted by Respondents.

13

Regarding NRS § 34.810, Nevada’s rule regarding successive petitions, Lisle

14

points out that the Ninth Circuit Court of Appeals has held that rule to be inadequate. (See

15

Opposition to Motion to Dismiss (ECF No. 298) at 156-57, 203-04.) Lisle appropriately

16

cites Riley v. McDaniel, 786 F.3d 719 (9th Cir. 2015); Valerio v. Crawford, 306 F.3d 742

17

(9th Cir. 2002); and Petrocelli v. Angelone, 248 F.3d 877 (9th Cir. 2001). (Id.)

18

Respondents have not carried their burden of demonstrating that the procedural rule has

19

become adequate since the time of the defaults in those cases. The Court does not apply

20

the procedural default doctrine to any of Lisle's claims based on the Nevada Supreme

21

Court’s reliance on NRS § 34.810 in affirming the dismissal of his second state habeas

22

action.

23
24

D.

Claim-Specific Analysis
1.

Claim 1

25

In Claim 1 of his fourth amended petition, Lisle claims that his federal constitutional

26

rights were violated as a result of ineffective assistance of counsel. (Fourth Amended

27

Petition (ECF No. 292) at 11-66.) In subpart A of Claim 1, Lisle claims that his trial counsel

28

were ineffective for failing to present available mitigating evidence at the penalty phase
25

1

of his trial. (Id. at 12-57.) In subpart B, Lisle claims that his trial counsel were ineffective

2

at the guilt phase of his trial because his trial counsel lacked resources, because they

3

failed to object to the State’s bolstering of Adam Evans’s testimony, because they failed

4

to impeach Evans with a prior inconsistent statement, because they failed to object to

5

prosecutorial misconduct, because they failed to object to erroneous jury instructions,

6

because they were ineffective during voir dire, and because they failed to litigate the

7

State’s interference with access to witness John Melcher. (Id. at 57-65.) In subpart C,

8

Lisle claims that his federal constitutional rights were violated as a result of the cumulative

9

effect of ineffective assistance of his counsel. (Id. at 65.) And, in subpart D, Lisle claims

10

that he received ineffective assistance of counsel on his direct appeal and in his state

11

post-conviction proceedings. (Id. at 65-66.)

12

With respect to the application of the statute of limitations to Claim 1, Lisle argues

13

that he is entitled to statutory and equitable tolling of the limitations period as it relates to

14

Claim 1. (See Opposition to Motion to Dismiss (ECF No. 298) at 91-97.) However, the

15

Court finds Lisle’s arguments in this regard to be without merit.

16

Regarding his argument for statutory tolling under 28 U.S.C. § 2244(d)(1)(D) (the

17

“limitation period shall run from . . . the date on which the factual predicate of the

18

claim . . . could have been discovered through the exercise of due diligence”), Lisle does

19

not make any showing, with respect to any particular claim in Claim 1, of the date on

20

which he discovered the factual predicate of the claim, or the reason why the factual

21

predicate could not have been discovered earlier.

22

And, regarding Lisle’s argument for equitable tolling specifically regarding Claim 1,

23

Lisle does not make any connection between his mental or physical health, or his

24

conditions of confinement, and his counsel’s ability to plead any of the claims in Claim 1

25

on his behalf, particularly during the period after June 23, 2005. The application of the

26

statute of limitations to Claim 1 turns, then, on the question of what claims within Claim 1

27

relate back to Lisle’s original petition (ECF No. 1), which, by virtue of equitable tolling,

28

was timely filed. In Mayle, the Supreme Court held that “[s]o long as the original and
26

1

amended petitions state claims that are tied to a common core of operative facts, relation

2

back will be in order,” but “[a]n amended habeas petition . . . does not relate back (and

3

thereby escape AEDPA’s one-year time limit) when it asserts a new ground for relief

4

supported by facts that differ in both time and type from those the original pleading set

5

forth.” Mayle, 545 U.S. at 650, 664.

6

In his original petition, in the portion of the petition in which the grounds for relief

7

are set forth, as Ground 1, Lisle wrote: “See attached pleadings. Exs. 3, 4.” (Petition for

8

Writ of Habeas Corpus (ECF No. 1) at 3.) Exhibits 3 and 4, attached to the original petition,

9

were Lisle’s opening and reply briefs on the appeal in his first state habeas action.

10

Therefore, the Court reads Lisle’s original petition to include the claims raised on the

11

appeal in his first state habeas action.

12

In addition, Lisle argues that his original petition should be read to also include the

13

claims he raised on his direct appeal, because he attached to his original petition, as

14

Exhibit 1 to that petition, a copy of the Nevada Supreme Court’s opinion on his direct

15

appeal. (See Opposition to Motion to Dismiss (ECF No. 298) at 99-102.) This argument

16

is without merit. The form that Lisle used to draft his petition called for the petitioner to

17

attach copies of state-court decisions, as part of the background information regarding

18

the petition. (See Petition for Writ of Habeas Corpus (ECF No. 1) at 1.) Nothing from that

19

exhibit was incorporated into the grounds for relief in the petition. (See id. at 3-8.)

20

Moreover, in his original petition, Lisle specifically stated that the claims asserted in that

21

petition were exhausted in state court in his first state habeas action, not on his direct

22

appeal. (See id. at 3-4.) Lisle’s original petition cannot be read to assert the claims that

23

he asserted on his direct appeal to the Nevada Supreme Court.

24

Applying Mayle, therefore, the Court determines that the following claims in Claim

25

1 relate back to Lisle’s original petition, because his original petition set forth the core

26

operative facts upon which these claims are based; these claims in Claim 1 are not barred

27

by the statute of limitations:

28

///
27

1

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the guilt
phase of the trial, for failing to object to the prosecutor’s expressions of
personal opinion and aligning of himself with the jury, in closing arguments;

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the
penalty phase of the trial, for failing to object to the prosecutor’s expressions of
personal opinion and aligning of himself with the jury, in closing arguments;

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the
penalty phase of the trial, for failing to object to the prosecutor’s argument that
allegedly improperly shifted to the defense the burden to prove that mitigating
circumstances did not outweigh aggravating circumstances;

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the
penalty phase of the trial, for failing to object to the prosecutor’s argument that
the jury should “send a message;” and

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the
penalty phase of the trial, for failing to object to the prosecutor’s argument that
Lisle would present a danger in the future.

2
3
4
5
6
7
8
9
10
11
12

Furthermore, as these claims in Claim 1 were asserted on Lisle’s appeal in his first state

13

habeas action, they are exhausted and not subject to the procedural default doctrine.
The remainder of the claims in Claim 1 do not relate back to Lisle’s original petition,

14
15

are barred by the statute of limitations, and will be dismissed on that ground.

16

Moreover, as the remainder of the claims in Claim 1—the claims not asserted by

17

Lisle on the appeal in his first state habeas action—were not asserted by Lisle on either

18

his direct appeal or the appeal in his first state habeas action, they are also potentially

19

barred by the procedural default doctrine. However, with respect to claims of ineffective

20

assistance of trial counsel, Lisle could possibly show cause and prejudice to overcome

21

the procedural default, under Martinez. That determination, though, is intertwined with the

22

merits of the claims, such that it cannot be properly addressed at this point in this action.

23

Therefore, the Court does not, in this Order, consider the question of the procedural

24

default of the claims in Claim 1 not exhausted by Lisle on the appeal in his first state

25

habeas action.

26

///

27

///

28

///
28

2.

1

Claim 2

2

In Claim 2 of his fourth amended habeas petition, Lisle challenges the aggravating

3

factors that supported imposition of the death penalty in his case, asserting that they are

4

unconstitutional as applied in his case. (Fourth Amended Petition (ECF No. 292) at 67-

5

233.)

6

Citing McQuiggin v. Perkins, 569 U.S. 383, 399 (2013), Lisle argues that the

7

statute of limitations bar should be excused with respect to Claim 2 because in that claim

8

he essentially contends that he is actually innocent of the death penalty. (See Opposition

9

to Motion to Dismiss (ECF No. 298) at 14-15, 97-99.)

10

A habeas petitioner can overcome a procedural default or a statute of limitations

11

bar, allowing consideration of the merits of the otherwise barred claim, by showing that

12

he is actually innocent. See Schlup v. Delo, 513 U.S. 298, 324-29 (1995); see also

13

McQuiggin, 569 U.S. at 399. To demonstrate actual innocence to overcome a procedural

14

bar under Schlup, a petitioner must present “new reliable evidence—whether it be

15

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

16

evidence—that was not presented at trial.” Id. at 324. By means of that evidence, and in

17

light of all the evidence in the case, the petitioner “must show that it is more likely than

18

not that no reasonable juror would have convicted him in the light of the new evidence.”

19

Id. at 327; see also id. at 329 (“[A] petitioner does not meet the threshold requirement

20

unless he persuades the district court that, in light of the new evidence, no juror, acting

21

reasonably, would have voted to find him guilty beyond a reasonable doubt.”); House v.

22

Bell, 547 U.S. 518, 538 (quoting Schlup, 513 U.S. at 327-28) (regarding evidence to be

23

considered). “Based on this total record, the court must make a ‘probabilistic

24

determination about what reasonable, properly instructed jurors would do.’” House, 547

25

U.S. at 538 (quoting Schlup, 513 U.S. at 329). “The Court’s function is not to make an

26

independent factual determination about what likely occurred, but rather to assess the

27

likely impact of the evidence on reasonable jurors.” House, 547 U.S. at 538. Meeting this

28

standard “raise[s] sufficient doubt about [the petitioner’s] guilt to undermine confidence in
29

1

the result of the trial without the assurance that the trial was untainted by constitutional

2

error,” warranting “a review of the merits of the constitutional claims[.]” Schlup, 513 U.S.

3

at 317.

4

Lisle contends in Claim 2 that he can show that he is “actually innocent of the death

5

penalty,” because the two aggravating circumstances found by the jury are invalid. (See

6

Opposition to Motion to Dismiss (ECF No. 298) at 14-15, 97-99; see also Fourth Amended

7

Petition (ECF No. 292) at 67-233.) The two aggravating circumstances found by the jury

8

were: (1) “[t]he murder was committed by a person who was previously convicted of

9

another murder,” and (2) “[t]he murder was committed while the person was engaged in

10

the commission of or an attempt to commit a Kidnapping in the First Degree.” (See Special

11

Verdict, Exh. HH (ECF No. 186-8).)

12

The validity of Lisle’s other murder conviction (for the Logan murder), which was

13

the basis for one of the two aggravating circumstances found in this case, is at issue in

14

Lisle’s other capital habeas corpus action in this Court, Case No. 2:03-cv-1005-JCM-

15

CWH. Therefore, the Court determines that Lisle’s contention that he can overcome the

16

procedural default and statute of limitations bars of this claim by showing his actual

17

innocence of the death penalty should not be addressed at this time, on this motion to

18

dismiss. The Court will deny the motion to dismiss as to this this claim, without prejudice

19

to Respondents asserting the statute of limitations and procedural default defenses to it

20

in their answer.

21

3.

Claim 3

22

In Claim 3, Lisle contends that his federal constitutional rights were violated, in the

23

guilt phase of his trial, as a result of the admission of evidence of other bad acts. (Fourth

24

Amended Petition (ECF No. 292) at 234-48.) In subpart A of Claim 3, Lisle claims that his

25

federal constitutional rights were violated as a result of admission of evidence regarding

26

the Logan homicide. (Id. at 235-41.) In subpart B of Claim 3, Lisle claims that his federal

27

constitutional rights were violated as a result of admission of evidence “that Melcher was

28

an ‘enforcer’ for Lisle.” (Id. at 241-48.)
30

1

With respect to the statute of limitations, Lisle argues that the claims in Claim 3

2

relate back to his original petition because he raised them on his direct appeal to the

3

Nevada Supreme Court, and the Nevada Supreme Court’s opinion on that appeal was

4

attached to his original petition. (See Opposition to Motion to Dismiss (ECF No. 298) at

5

99-102.) However, as is discussed above, in section III(D)(1), the Court determines that

6

Lisle’s attachment of the Nevada Supreme Court’s opinion on his direct appeal did not

7

serve to include the claims he made on that appeal in his original petition in this case.

8

The claims in Claim 3 do not relate back to Lisle’s original petition. All of Claim 3 is barred

9

by the statute of limitations.

10

With respect to the procedural default doctrine, Respondents concede that Lisle

11

raised Claim 3A on his direct appeal, and that claim is, therefore, not procedurally

12

defaulted. (See Motion to Dismiss (ECF No. 293) at 22.) Lisle did not, however, raise

13

Claim 3B on either his direct appeal or the appeal in his first state habeas action, so that

14

claim is subject to the procedural default doctrine. With respect to the claims of ineffective

15

assistance of trial counsel in Claim 3B, Lisle could possibly show cause and prejudice to

16

overcome the procedural default, under Martinez; that determination, though, is

17

intertwined with the merits of the claims, such that it cannot be properly addressed at this

18

point in this action. Therefore, the Court does not, in this Order, consider the question of

19

the procedural default of the claims of ineffective assistance of trial counsel in Claim 3B.

20

Regarding the remainder of Claim 3B—those claims not asserting ineffective assistance

21

of trial counsel—Lisle does not make any argument, specific to those claims, that he can

22

overcome the procedural default.

23

Therefore, Claim 3B, other than claims of ineffective assistance of trial counsel, is

24

dismissed on both statute of limitations grounds and procedural default grounds; Claim

25

3A and the claims of ineffective assistance of trial counsel in Claim 3B are dismissed on

26

statute of limitations grounds.

27

///

28

///
31

1

4.

Claim 4

2

In Claim 4, Lisle claims that his federal constitutional rights were violated “because

3

the trial court admitted prejudicial extrajudicial statements of Mr. Lisle’s co-defendant

4

Jerry Lopez.” (Fourth Amended Petition (ECF No. 292) at 249-56.)

5

Regarding the statute of limitations, Lisle argues that Claim 4 relates back to his

6

original petition because he raised the claim on his direct appeal to the Nevada Supreme

7

Court, and the Nevada Supreme Court’s opinion on that appeal was attached to his

8

original petition in this case. (See Opposition to Motion to Dismiss (ECF No. 298) at 99-

9

102.) As is discussed above, in section III(D)(1), the Court determines that Lisle’s

10

attachment of the Nevada Supreme Court’s opinion on his direct appeal did not serve to

11

include the claims he made on that appeal in his original petition in this case. The claims

12

in Claim 4 do not relate back to Lisle’s original petition. All of Claim 4 is barred by the

13

statute of limitations.

14

Furthermore, as none of the claims in Claim 4 were asserted by Lisle on either his

15

direct appeal or the appeal in his first state habeas action, they are subject to the

16

procedural default doctrine.

17
18
19

All of Claim 4 is dismissed on both statute of limitations grounds and procedural
default grounds.
5.

Claim 5

20

In Claim 5, Lisle claims that his federal constitutional rights were violated “because

21

the trial court’s instruction to Larry Prince to testify falsely corroded judicial integrity and

22

rendered Mr. Lisle’s proceedings fundamentally unfair.” (Fourth Amended Petition (ECF

23

No. 292) at 257-63.)

24

With respect to the statute of limitations, here again, Lisle argues that Claim 5

25

relates back to his original petition, because he raised the claim on his direct appeal to

26

the Nevada Supreme Court and the Nevada Supreme Court’s opinion on that appeal was

27

attached to his original petition in this case. (See Opposition to Motion to Dismiss (ECF

28

No. 298) at 99-102.) As is discussed above, in section III(D)(1), the Court determines that
32

1

Lisle’s attachment of the Nevada Supreme Court’s opinion on his direct appeal did not

2

serve to include the claims he made on that appeal in his original petition in this case.

3

The claims in Claim 5 do not relate back to Lisle’s original petition. All of Claim 5 is barred

4

by the statute of limitations.

5

Furthermore, as none of the claims in Claim 5 were asserted by Lisle on either his

6

direct appeal or the appeal in his first state habeas action, they are subject to the

7

procedural default doctrine.

8
9

All of Claim 5 is dismissed on both statute of limitations grounds and procedural
default grounds.

10

6.

Claim 6

11

In Claim 6, Lisle contends that his federal constitutional rights were violated

12

“because the trial court’s striking of Janice Sykes’s references to Jerry Lopez deprived

13

Mr. Lisle of an opportunity to present mitigating evidence.” (Fourth Amended Petition

14

(ECF No. 292) at 264-68.)

15

As with Claims 3, 4, and 5, Lisle argues that Claim 6 relates back to his original

16

petition, because he raised the claim on his direct appeal to the Nevada Supreme Court,

17

and the Nevada Supreme Court’s opinion on that appeal was attached to his original

18

petition in this case. (See Opposition to Motion to Dismiss (ECF No. 298) at 99-102.) As

19

is discussed above, in section III(D)(1), the Court determines that Lisle’s attachment of

20

the Nevada Supreme Court’s opinion on his direct appeal did not serve to include the

21

claims he made on that appeal in his original petition in this case. The claims in Claim 6

22

do not relate back to Lisle’s original petition. All of Claim 6 is barred by the statute of

23

limitations.

24
25

The claim in Claim 6 was, however, asserted by Lisle on his direct appeal, and it
is not procedurally defaulted.

26

Claim 6 is dismissed on statute of limitations grounds.

27

///

28

///
33

1

7.

Claim 7

2

In Claim 7, Lisle claims that his federal constitutional rights were violated “because

3

trial court error and the ineffective assistance of counsel during voir dire contaminated

4

Mr. Lisle’s proceedings.” (Fourth Amended Petition (ECF No. 292) at 269-78.) In subpart

5

A of Claim 7, Lisle claims that the jury was “death-biased.” (Id. at 269-73.) In subpart B,

6

Lisle claims that “[a] death-biased juror was seated.” (Id. at 273-75.) In subpart C, Lisle

7

claims that “[t]he trial court erroneously denied trial counsel’s motion for a sequestered

8

jury.” (Id. at 275-77.) In subpart D, Lisle claims that “[t]he errors in the voir dire process

9

should be considered singly and cumulatively.” (Id. at 277-78.) And, in subpart E, Lisle

10

claims that his counsel on direct appeal and in his state post-conviction proceedings

11

“failed to investigate, develop, and present this claim.” (Id. at 278.)

12

Lisle does not make any argument, specific to any of the claims in Claim 7, that

13

any of these claims relate back to his original petition. The claims in Claim 7 do not relate

14

back to Lisle’s original petition. All of Claim 7 is barred by the statute of limitations.

15

Furthermore, as none of the claims in Claim 7 were asserted by Lisle on either his

16

direct appeal or the appeal in his first state habeas action, they are subject to the

17

procedural default doctrine. With respect to the claims of ineffective assistance of trial

18

counsel in Claim 7, Lisle could possibly show cause and prejudice to overcome the

19

procedural default, under Martinez; that determination, though, is intertwined with the

20

merits of the claims, such that it cannot be properly addressed at this point in this action.

21

Therefore, the Court does not, in this Order, consider the question of the procedural

22

default of the claims of ineffective assistance of trial counsel in Claim 7.

23

Therefore, all of Claim 7, other than claims of ineffective assistance of trial counsel,

24

is dismissed on both statute of limitations grounds and procedural default grounds; the

25

claims of ineffective assistance of trial counsel in Claim 7 are dismissed on statute of

26

limitations grounds.

27

///

28

///
34

1

8.

Claim 8

2

In Claim 8, Lisle claims that his federal constitutional rights were violated because

3

of prosecutorial misconduct. (Fourth Amended Petition (ECF No. 292) at 279-91.) In

4

subpart A of Claim 8, Lisle claims: “The State improperly expressed personal opinions

5

during closing arguments.” (Id. at 280-81.) In subpart B, Lisle claims: “The State

6

improperly commented on the lack of mitigating evidence and the role of mitigating

7

circumstances.” (Id. at 281-83.) Subpart B has two separate parts: (1) that the State made

8

improper comments regarding Lisle’s mitigation presentation, and (2) that the State

9

misstated the law regarding mercy. (Id. at 282-83.) In subpart C, Lisle claims: “The State

10

improperly encouraged jurors to sentence Mr. Lisle based on passion and prejudice.” (Id.

11

at 283-85.) In subpart D, Lisle claims: “The State improperly disparaged trial counsel and

12

Mr. Lisle.” (Id. at 285-87.) In subpart E, Lisle claims: “The State argued the death penalty

13

was necessary to prevent Mr. Lisle from killing again.” (Id. at 287-89.) In subpart F, Lisle

14

claims: “The State made a misrepresentation to the trial court.” (Id. at 289.) In subpart G,

15

Lisle claims that the State’s misconduct should be considered singly and cumulatively.

16

(Id. at 289-90.) And, in subpart H, Lisle claims that “[t]rial, appellate, and post-conviction

17

counsel were ineffective for failing to challenge the extensive prosecutorial misconduct

18

which occurred in Mr. Lisle’s trial.” (Id. at 290-91.)

19

Lisle argues that Claim 8 relates back to his original petition, because he raised

20

claims in Claim 8 on his direct appeal to the Nevada Supreme Court, and the Nevada

21

Supreme Court’s opinion on that appeal was attached to his original petition in this case.

22

(See Opposition to Motion to Dismiss (ECF No. 298) at 99-102.) As is discussed above,

23

in section III(D)(1), the Court determines that Lisle’s attachment of the Nevada Supreme

24

Court’s opinion on his direct appeal did not serve to include the claims he made on that

25

appeal in his original petition in this case. The claims in Claim 8 do not relate back to

26

Lisle’s original petition by virtue of his having asserted them on his direct appeal.

27

However, as is discussed above, in section III(D)(1), Lisle did incorporate into his

28

original petition the claims he raised on the appeal in his first state habeas action. With
35

1

that in mind, the Court, applying Mayle, determines that the following claims in Claim 8

2

relate back to Lisle’s original petition, because his original petition set forth the core

3

operative facts upon which these claims are based: Claims 8A, 8B1, 8C, 8E, 8G

4

(regarding Claims 8A, 8B1, 8C and 8E), and 8H (regarding Claims 8A, 8B1, 8C and 8E).

5

These claims in Claim 8 are not barred by the statute of limitations.

6

The claims in Claim 8 that relate back to Lisle’s original petition, except the claims

7

of ineffective assistance of appellate and post-conviction counsel in Claim 8H, were

8

asserted on Lisle’s appeal in his first state habeas action, so they are exhausted and not

9

subject to the procedural default doctrine.

10
11

Claims 8B2, 8D, and 8F do not relate back to Lisle’s original petition, are barred
by the statute of limitations, and will be dismissed on that ground.

12

Moreover, Claims 8B2, 8D, 8F, and the claims of ineffective assistance of appellate

13

and post-conviction counsel in Claim 8H, were not asserted by Lisle on either his direct

14

appeal or the appeal in his first state habeas action, so they are also potentially barred

15

by the procedural default doctrine. However, with respect to claims of ineffective

16

assistance of trial counsel, Lisle could possibly show cause and prejudice to overcome

17

the procedural default, under Martinez. That determination, though, is intertwined with the

18

merits of the claims, such that it cannot be properly addressed at this point in this action.

19

Therefore, the Court does not, in this Order, consider the question of the procedural

20

default of the ineffective assistance of trial counsel claims in Claims 8B2, 8D, and 8F. The

21

remainder of Claims 8B2, 8D, and 8F—claims other than ineffective assistance of trial

22

counsel—will be dismissed on the ground of procedural default as well as the statute of

23

limitations.

24

Therefore, the following claims in Claim 8 are dismissed on both statute of

25

limitations and procedural default grounds: all claims other than ineffective assistance of

26

trial counsel in Claims 8B2, 8D, and 8F. The following claims in Claim 8 are dismissed

27

solely on statute of limitations grounds: the claims of ineffective assistance of trial counsel

28

in Claims 8B2, 8D, and 8F. The following claims in Claim 8 are dismissed solely on
36

1

procedural default grounds: the claims of ineffective assistance of appellate and post-

2

conviction counsel in Claim 8H. The motion to dismiss will be denied with respect to the

3

following claims in Claim 8: Claims 8A, 8B1, 8C, 8E, 8G (regarding Claims 8A, 8B1, 8C,

4

and 8E), and the claims of ineffective assistance of trial counsel in Claim 8H (regarding

5

Claims 8A, 8B1, 8C, and 8E).

6

9.

Claim 9

7

In Claim 9, Lisle claims that his federal constitutional rights were violated “because

8

Mr. Lisle was forced to wear a stun belt and shackles during the guilt and penalty phases

9

of his trial.” (Fourth Amended Petition (ECF No. 292) at 292-96.) In subpart A of Claim 9,

10

Lisle claims that “[t]he trial court erred in failing to conduct a hearing to determine whether

11

an essential state interest necessitated the use of a stun belt and shackles.” (Id. at 293-

12

95.) In subpart B, Lisle claims: “Trial counsel were ineffective for failing to object to the

13

restraints.” (Id. at 295.) In subpart C, Lisle claims: “Appellate and post-conviction counsel

14

were ineffective in failing to raise this claim.” (Id. at 295-96.)

15

Lisle makes no argument, specific to Claim 9, that Claim 9 relates back to his

16

original petition. The claims in Claim 9 do not relate back to Lisle’s original petition. All of

17

Claim 9 is barred by the statute of limitations.

18

Lisle argues that the Nevada Supreme Court necessarily considered this claim as

19

part of its mandatory review of his case on direct appeal pursuant to NRS § 177.055. (See

20

Opposition to Motion to Dismiss (ECF No. 298) at 132.) As is discussed above, in section

21

III(B)(2), the Court finds that Lisle has not shown that these claims were “clearly

22

encompassed” within the scope of NRS § 177.055 and “readily apparent” in the record

23

reviewed by the Nevada Supreme Court. See Comer, 463 F.3d at 954-56.

24

The claims in Claim 9 were not asserted by Lisle on either his direct appeal or the

25

appeal in his first state habeas action. Therefore, these claims are subject to the

26

procedural default doctrine. With respect to the claims of ineffective assistance of trial

27

counsel in Claim 9, Lisle could possibly show cause and prejudice to overcome the

28

procedural default, under Martinez; that determination, though, is intertwined with the
37

1

merits of the claims, such that it cannot be properly addressed at this point in this action.

2

Thus, the Court does not, in this Order, consider the question of the procedural default of

3

the claims of ineffective assistance of trial counsel in Claim 9.

4

Therefore, all of Claim 9, other than claims of ineffective assistance of trial counsel,

5

is dismissed on both statute of limitations grounds and procedural default grounds; the

6

claims of ineffective assistance of trial counsel in Claim 9 are dismissed on statute of

7

limitations grounds.

8

10.

Claim 10

9

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

10

“because the trial court erroneously denied Mr. Lisle’s motion to sever the charge of being

11

an ex-felon in possession of a firearm from his first-degree murder charge.” (Fourth

12

Amended Petition (ECF No. 292) at 297-98.)

13

Claim 10 relates back to Lisle’s original petition because Lisle asserted a similar

14

claim, based on the same core operative facts, on the appeal in his first state habeas

15

action, and, as is discussed above, in section III(D)(1), the claims asserted in Lisle’s first

16

state habeas action were incorporated into Lisle’s original petition. (See Appellant’s

17

Opening Brief, Exh. BBBB at 57-59 (ECF No. 188-2 at 60-62).) Claim 10 is not barred by

18

the statute of limitations.

19

Lisle raised Claim 10, other than the claims of ineffective assistance of appellate

20

and post-conviction counsel, on his direct appeal and on the appeal in his first state

21

habeas action. (See Appellant’s Opening Brief, Exh. WW at 45-48 (ECF No. 186-23 at

22

55-58); Appellant’s Opening Brief, Exh. BBBB at 57-59 (ECF No. 188-2 at 60-62).) To

23

that extent, Claim 10 is not procedurally defaulted.

24

Lisle did not, however, raise the claims of ineffective assistance of appellate and

25

post-conviction counsel in Claim 10 on his direct appeal or on the appeal in his first state

26

habeas action. (See Appellant’s Opening Brief, Exh. WW, at 45-48 (ECF No. 186-23 at

27

55-58); Appellant’s Opening Brief, Exh. BBBB, at 57-59 (ECF No. 188-2 at 60-62).) To

28

that extent, Claim 10 is procedurally defaulted.
38

1

The claims of ineffective assistance of appellate and post-conviction counsel in

2

Claim 10 will be dismissed as barred by the procedural default doctrine; with respect to

3

the remainder of Claim 10, the motion to dismiss will be denied.

4

11.

Claim 11

5

In Claim 11, Lisle claims that his federal constitutional rights were violated

6

“because the trial court erroneously admitted the out-of-court testimony of a witness who

7

inculpated Mr. Lisle.” (Fourth Amended Petition (ECF No. 292) at 299-306.) The witness

8

referred to in Claim 11 is Jason Sullivan. (See id.)

9

Lisle argues that Claim 11 relates back to his original petition because he raised

10

claims in Claim 11 on his direct appeal to the Nevada Supreme Court, and the Nevada

11

Supreme Court’s opinion on that appeal was attached to his original petition in this case.

12

(See Opposition to Motion to Dismiss (ECF No. 298) at 99-102.) As is discussed above,

13

in section III(D)(1), the Court determines that Lisle’s attachment of the Nevada Supreme

14

Court’s opinion on his direct appeal did not serve to include the claims he made on that

15

appeal in his original petition in this case. Claim 11 does not relate back to Lisle’s original

16

petition by virtue of his having asserted such claims on his direct appeal. All of Claim 11

17

is barred by the statute of limitations.

18

Lisle raised Claim 11, other than the claims of ineffective assistance of appellate

19

counsel, on his direct appeal. (See Appellant’s Opening Brief, Exh. WW at 54-57 (ECF

20

No. 186-23 at 64-67).) To that extent, Claim 11 is not procedurally defaulted.

21

Lisle did not, however, raise the claims of ineffective assistance of appellate

22

counsel in Claim 11 on his direct appeal, or on the appeal in his first state habeas action.

23

(See Appellant’s Opening Brief, Exh. WW (ECF No. 186-23); Appellant’s Opening Brief,

24

Exh. BBBB (ECF No. 188-2).) To that extent, Claim 11 is procedurally defaulted.

25

Claim 11, other than the claims of ineffective assistance of appellate counsel, will

26

be dismissed as barred by the statute of limitations. The claims of ineffective assistance

27

of appellate counsel in Claim 11 will be dismissed as barred by both the statute of

28

limitations and the procedural default doctrine.
39

1

12.

Claim 12

2

In Claim 12, Lisle claims that his federal constitutional rights were violated

3

“because the State’s failure to disclose material exculpatory and impeachment evidence

4

deprived Mr. Lisle of fundamentally fair proceedings.” (Fourth Amended Petition (ECF No.

5

292) at 307-28.) In subpart A of Claim 12, Lisle claims: “The State failed to disclose

6

material impeachment evidence related to its witness Adam Evans.” (Id. at 308-16.) In

7

subpart B, Lisle claims: “The State failed to disclose material impeachment evidence

8

related to its witness John Melcher.” (Id. at 317-22.) In subpart C, Lisle claims: “The State

9

failed to turn over handwritten notes of a conversation with Mr. Melcher.” (Id. at 323.) In

10

subpart D, Lisle claims: “The CCDA’s ‘open file’ policy failed to comply with constitutional

11

discovery obligations.” (Id. at 323-25.) And, in subpart E, Lisle claims: “The State failed

12

to disclose cash payments made to witnesses.” (Id. at 325-28.)

13

Lisle does not make any argument, specific to any of the claims in Claim 12, that

14

any of these claims relate back to his original petition. The claims in Claim 12 do not relate

15

back to Lisle’s original petition. All of Claim 12 is barred by the statute of limitations.

16

Regarding the question of procedural default, Respondents concede that Lisle

17

raised Claims 12B and 12C on his direct appeal. (See Motion to Dismiss (ECF No. 293)

18

at 23.) Those parts of Claim 12 are not subject to dismissal on procedural default grounds.

19

And, with respect to Claims 12A, 12D, 12E, and 12F, Lisle appears to argue that

20

he can show cause and prejudice to overcome the procedural default of those claims,

21

because the State withheld material relative to the claims; in light of this assertion by

22

Lisle—and without determining its merits at this time—the Court does not address the

23

question of the procedural default of these claims in this Order.

24
25

All of Claim 12 will be dismissed on statute of limitations grounds.
13.

Claim 13

26

In Claim 13, Lisle claims that his federal constitutional rights were violated

27

“because the trial court erroneously denied Mr. Lisle’s motion to call John Melcher’s

28

attorney to testify.” (Fourth Amended Petition (ECF No. 292) at 329-31.)
40

1

Lisle argues that Claim 13 relates back to his original petition, because he raised

2

the claim in Claim 13 on his direct appeal to the Nevada Supreme Court, and the Nevada

3

Supreme Court’s opinion on that appeal was attached to his original petition in this case.

4

(See Opposition to Motion to Dismiss (ECF No. 298) at 99-102.) As is discussed above,

5

in section III(D)(1), the Court determines that Lisle’s attachment of the Nevada Supreme

6

Court’s opinion on his direct appeal did not serve to include the claims he made on that

7

appeal in his original petition in this case. The claims in Claim 13 do not relate back to

8

Lisle’s original petition by virtue of his having asserted them on his direct appeal. Claim

9

13 does not relate back to Lisle’s original petition. All of Claim 13 is barred by the statute

10

of limitations.

11

Turning to the issue of procedural default, Lisle asserted the claims in Claim 13,

12

other than claims of ineffective assistance of counsel, on his direct appeal. (See

13

Appellant’s Opening Brief, Exh. WW at 64-68 (ECF No. 186-23 at 75-79).) To that extent,

14

Claim 13 is not procedurally defaulted.

15

Lisle did not assert, on his direct appeal, or on the appeal in his first state habeas

16

action, the claims of ineffective assistance of counsel in Claim 13, and those claims are

17

therefore subject to the procedural default doctrine. With respect to the claims of

18

ineffective assistance of trial counsel in Claim 13, Lisle could possibly show cause and

19

prejudice to overcome the procedural default, under Martinez; that determination, though,

20

is intertwined with the merits of the claims, such that it cannot be properly addressed at

21

this point in this action. Therefore, the Court does not, in this Order, consider the question

22

of the procedural default of the claims of ineffective assistance of trial counsel in Claim

23

13.

24

Therefore, the claims of ineffective assistance of appellate and post-conviction

25

counsel in Claim 13 are dismissed on both statute of limitations grounds and procedural

26

default grounds; the remainder of Claim 13 is dismissed on statute of limitations grounds

27

only.

28

///
41

1

14.

Claim 14

2

In Claim 14, Lisle claims that his federal constitutional rights were violated

3

“because the trial court did not strike the testimony of John Melcher because the State

4

had instructed Mr. Melcher not to speak to Mr. Lisle’s attorneys.” (Fourth Amended

5

Petition (ECF No. 292) at 332-34.)

6

Lisle makes no argument, specific to any of the claims in Claim 14, that any of

7

these claims relate back to his original petition. The claims in Claim 14 do not relate back

8

to Lisle’s original petition. All of Claim 14 is barred by the statute of limitations.

9

Regarding the question of procedural default, Claim 14, other than the claims of

10

ineffective assistance of counsel, was presented in state court on Lisle’s direct appeal.

11

(See Appellant’s Opening Brief, Exh. WW at 51-54 (ECF No. 186-23 at 61-64).) To that

12

extent, Claim 14 is not subject to dismissal as procedurally defaulted.

13

Lisle did not, however, raise the claims of ineffective assistance of counsel in Claim

14

14 on either his direct appeal or the appeal in his first state habeas action. Those claims

15

are procedurally defaulted, and Lisle makes no argument, specific to Claim 14, that he

16

can overcome the procedural default.

17

The claims of ineffective assistance of counsel in Claim 14 are dismissed on both

18

statute of limitations and procedural default grounds; the remainder of Claim 14 is

19

dismissed solely on statute of limitations grounds.

20

15.

Claim 15

21

In Claim 15, Lisle claims that his federal constitutional rights were violated

22

“because the trial court erroneously instructed the jury at the guilt and penalty phase

23

proceedings.” (Fourth Amended Petition (ECF No. 292) at 335-56.) In subpart A of Claim

24

15, Lisle claims that the trial court improperly instructed the jury in the guilt phase of the

25

trial. (Id. at 335-51.) In subpart A1, Lisle claims that the trial court improperly instructed

26

the jury regarding the elements of first-degree murder. (Id. at 335-41.) In subpart A2, Lisle

27

claims that the trial court improperly instructed the jury regarding reasonable doubt. (Id.

28

at 342-43.) In subpart A3, Lisle claims that the trial court failed “to give a curative
42

1

instruction after the erroneous introduction of prior bad act evidence.” (Id. at 344.) In

2

subpart A4, Lisle claims that the trial court “failed to properly instruct the jury on the

3

theories of aiding and abetting and conspiracy to commit murder.” (Id. at 344-47.) In

4

subpart A5, Lisle claims that the trial court did not properly instruct the jury regarding

5

possession of a deadly weapon. (Id. at 347-49.) In subpart A6, Lisle claims that the trial

6

court gave an “equal and exact justice instruction,” which “improperly minimized the

7

State’s burden of proof.” (Id. at 349-51.) In subpart B, Lisle claims that the trial court

8

improperly instructed the jury in the penalty phase of the trial. (Id. at 351-56.) In subpart

9

B1, Lisle claims that the trial court gave an “anti-sympathy” instruction. (Id. at 351-53.) In

10

subpart B2, Lisle claims that the trial court failed to instruct the jury “regarding the limited

11

use of prior bad act evidence.” (Id. at 353-56.)

12

Lisle argues that certain claims in Claim 15 relate back to his original petition

13

because he raised them on his direct appeal to the Nevada Supreme Court, and the

14

Nevada Supreme Court’s opinion on that appeal was attached to his original petition in

15

this case. (See Opposition to Motion to Dismiss (ECF No. 298) at 99-102.) As is discussed

16

above, in section III(D)(1), the Court determines that Lisle’s attachment of the Nevada

17

Supreme Court’s opinion on his direct appeal did not serve to include the claims he made

18

on that appeal in his original petition in this case. The claims in Claim 15 do not relate

19

back to Lisle’s original petition by virtue of his having asserted them on his direct appeal.

20

Claim 15 does not relate back to Lisle’s original petition. All of Claim 15 is barred by the

21

statute of limitations.

22

Regarding procedural default, one part of Claim 15, Claim 15B2, other than the

23

claims of ineffective assistance of counsel, was presented in state court on Lisle’s direct

24

appeal. (See Appellant’s Opening Brief, Exh. WW at 76-78 (ECF No. 186-23 at 87-89).)

25

To that extent, Claim 15 is not subject to dismissal as procedurally defaulted.

26

Lisle did not, however, raise any other part of Claim 15 on either his direct appeal

27

or the appeal in his first state habeas action. Those claims, then, are procedurally

28

defaulted. With respect to the claims of ineffective assistance of trial counsel in Claim 15,
43

1

Lisle could possibly show cause and prejudice to overcome the procedural default, under

2

Martinez; that determination, though, is intertwined with the merits of the claims, such that

3

it cannot be properly addressed at this point in this action. Therefore, the Court does not,

4

in this Order, consider the question of the procedural default of the claims of ineffective

5

assistance of trial counsel in Claim 15.

6

All the claims of ineffective assistance of trial counsel in Claim 15, and Claim 15B,

7

other than the claims of ineffective assistance of appellate and post-conviction counsel,

8

are dismissed on statute of limitations grounds only; the remainder of Claim 15 is

9

dismissed on both statute of limitations and procedural default grounds.

10

16.

Claim 16

11

In Claim 16, Lisle claims that his federal constitutional rights were violated

12

“because the trial court erroneously denied Mr. Lisle’s motion to sever his trial from that

13

of his co-defendant.” (Fourth Amended Petition (ECF No. 292) at 357-67.)

14

Claim 16 is not barred by the statute of limitations. On the appeal in his first state

15

habeas action, Lisle asserted a similar claim, one based on the same core operative facts,

16

and, as is discussed above, in section III(D)(1), that claim was incorporated into Lisle’s

17

original petition in this case. (See Appellant’s Opening Brief, Exh. BBBB at 44-56 (ECF

18

No. 188-2 at 47-59).)

19

Lisle raised Claim 16, other than the claims of ineffective assistance of counsel,

20

on his direct appeal and on the appeal in his first state habeas action. (See Appellant’s

21

Opening Brief, Exh. WW at 42-45 (ECF No. 186-23 at 52-55); Appellant’s Opening Brief,

22

Exh. BBBB at 44-56 (ECF No. 188-2 at 47-59).) To that extent, Claim 16 is not

23

procedurally defaulted.

24

Lisle did not, however, raise the claims of ineffective assistance of counsel in Claim

25

16 on his direct appeal or on the appeal in his first state habeas action. (See Appellant’s

26

Opening Brief, Exh. WW at 42-45 (ECF No. 186-23 at 52-55); Appellant’s Opening Brief,

27

Exh. BBBB at 44-56 (ECF No. 188-2 at 47-59).) The claims of ineffective assistance of

28

counsel in Claim 16 are procedurally defaulted. With respect to the claims of ineffective
44

1

assistance of trial counsel in Claim 16, Lisle could possibly show cause and prejudice to

2

overcome the procedural default, under Martinez; that determination, though, is

3

intertwined with the merits of the claims, such that it cannot be properly addressed at this

4

point in this action. Therefore, the Court does not, in this Order, consider the question of

5

the procedural default of the claims of ineffective assistance of trial counsel in Claim 16.

6

Regarding the other claims of ineffective assistance of counsel in Claim 16—those not

7

asserting ineffective assistance of trial counsel—Lisle does not make any argument,

8

specific to those claims, that he can overcome the procedural default.

9

The claims of ineffective assistance of appellate and post-conviction counsel in

10

Claim 16 will be dismissed as barred by the procedural default doctrine; with respect to

11

the remainder of Claim 16, the motion to dismiss will be denied.

12

17.

Claim 17

13

In Claim 17, Lisle claims that his federal constitutional rights were violated

14

“because the trial court erroneously denied Mr. Lisle’s motion to compel discovery of the

15

State’s written notes of an interview with its key witness John Melcher.” (Fourth Amended

16

Petition (ECF No. 292) at 368-70.)

17

Lisle argues that Claim 17 relates back to his original petition because he raised it

18

on his direct appeal to the Nevada Supreme Court, and the Nevada Supreme Court’s

19

opinion on that appeal was attached to his original petition in this case. (See Opposition

20

to Motion to Dismiss (ECF No. 298) at 99-102.) As is discussed above, in section III(D)(1),

21

the Court determines that Lisle’s attachment of the Nevada Supreme Court’s opinion on

22

his direct appeal did not serve to include the claims he made on that appeal in his original

23

petition in this case. Claim 17 does not relate back to Lisle’s original petition by virtue of

24

his having asserted it on his direct appeal. Claim 17 does not relate back to Lisle’s original

25

petition. Claim 17 is barred by the statute of limitations.

26

Regarding the question of procedural default, however, Lisle’s assertion of the

27

claim in Claim 17 on his direct appeal (see Appellant’s Opening Brief, Exh. WW at 48-51

28

///
45

1

(ECF No. 186-23 at 58-61)) does mean that Claim 17 is not subject to dismissal as

2

procedurally defaulted.

3

Claim 17 is dismissed as barred by the statute of limitations.

4

18.

Claim 18

5

In Claim 18, Lisle claims that his federal constitutional rights were violated

6

“because the trial court erroneously struck Darlene Falvey’s testimony, depriving Mr. Lisle

7

of an opportunity to rebut evidence of aggravating circumstances.” (Fourth Amended

8

Petition (ECF No. 292) at 371-77.)

9

Lisle argues that Claim 18 relates back to his original petition because he raised it

10

on his direct appeal to the Nevada Supreme Court, and the Nevada Supreme Court’s

11

opinion on that appeal was attached to his original petition in this case. (See Opposition

12

to Motion to Dismiss (ECF No. 298) at 99-102.) As is discussed above, in section III(D)(1),

13

the Court determines that Lisle’s attachment of the Nevada Supreme Court’s opinion on

14

his direct appeal did not serve to include the claims he made on that appeal in his original

15

petition in this case. Claim 18 does not relate back to Lisle’s original petition by virtue of

16

his having asserted it on his direct appeal. Claim 18 does not relate back to Lisle’s original

17

petition. Claim 18 is barred by the statute of limitations.

18

Regarding the question of procedural default, Lisle did assert Claim 18—except

19

for the claims of ineffective assistance of trial counsel—on his direct appeal. (See

20

Appellant’s Opening Brief, Exh. WW at 71-73 (ECF No. 186-23 at 82-84).) Therefore,

21

those claims are not procedurally defaulted.

22

Lisle did not raise the claims of ineffective assistance of trial counsel in Claim 18

23

on his direct appeal, or on the appeal in his first state habeas action. Those claims,

24

therefore, are potentially procedurally defaulted. However, with respect to such claims of

25

ineffective assistance of trial counsel, Lisle could possibly show cause and prejudice to

26

overcome the procedural default, under Martinez. That determination, though, is

27

intertwined with the merits of the claims, such that it cannot be properly addressed at this

28

///
46

1

time. Therefore, the Court does not, in this Order, consider the question of the procedural

2

default of the claims of ineffective assistance of trial counsel in Claim 18.

3

Claim 18 is dismissed as barred by the statute of limitations.

4

19.

Claim 19

5

In Claim 19, Lisle claims that his federal constitutional rights were violated

6

“because the State improperly referred to the fact that another jury had sentenced Mr.

7

Lisle to death.” (Fourth Amended Petition (ECF No. 292) at 378-81.)

8

Lisle makes no argument, specific to any of the claims in Claim 19, that any of

9

these claims relate back to his original petition. The claims in Claim 19 do not relate back

10

to Lisle’s original petition. All of Claim 19 is barred by the statute of limitations.

11

Lisle argues that the Nevada Supreme Court necessarily considered this claim as

12

part of its mandatory review of his case on direct appeal pursuant to NRS § 177.055. (See

13

Opposition to Motion to Dismiss (ECF No. 298) at 133-34.) As is discussed above, in

14

section III(B)(2), the Court finds that Lisle has not shown that these claims were “clearly

15

encompassed” within the scope of NRS § 177.055 and “readily apparent” in the record

16

reviewed by the Nevada Supreme Court. See Comer, 463 F.3d at 954-56.

17

The claims in Claim 19 were not asserted by Lisle on either his direct appeal or the

18

appeal in his first state habeas action. Therefore, these claims are subject to the

19

procedural default doctrine. With respect to the claims of ineffective assistance of trial

20

counsel in Claim 19, Lisle could possibly show cause and prejudice to overcome the

21

procedural default, under Martinez; that determination, though, is intertwined with the

22

merits of the claims, such that it cannot be properly addressed at this point in this action.

23

Therefore, the Court does not, in this Order, consider the question of the procedural

24

default of the claims of ineffective assistance of trial counsel in Claim 19. Regarding the

25

other claims in Claim 19—those not asserting ineffective assistance of trial counsel—Lisle

26

does not make any argument, specific to those claims, that he can overcome the

27

procedural default.

28

///
47

1

Therefore, all claims in Claim 19, other than claims of ineffective assistance of trial

2

counsel, are dismissed on both statute of limitations grounds and procedural default

3

grounds; the claims of ineffective assistance of trial counsel in Claim 19 are dismissed on

4

statute of limitations grounds.

5

20.

Claim 20

6

Claim 20 only reiterates claims made elsewhere in the Petition. Specifically, it

7

reasserts claims made in Claims 4, 10, and 15. Claim 20 adds nothing to those other

8

claims; it is redundant. To the extent that Claim 20 asserts a cumulative error claim, it

9

adds nothing to Claim 28. Claim 20 will be dismissed.

10

21.

Claim 21

11

In Claim 21, Lisle claims that his federal constitutional rights were violated “by the

12

failure to submit all of the elements of capital eligibility to the grand jury or to a court for a

13

probable cause determination.” (Fourth Amended Petition (ECF No. 292) at 387-88.)

14

Lisle makes no argument, specific to Claim 21, that any of the claims in Claim 21

15

relate back to his original petition. The claims in Claim 21 do not relate back to Lisle’s

16

original petition. All of Claim 21 is barred by the statute of limitations.

17

The claims in Claim 21 were not asserted by Lisle on either his direct appeal or the

18

appeal in his first state habeas action. Therefore, these claims are subject to the

19

procedural default doctrine. With respect to the claims of ineffective assistance of trial

20

counsel in Claim 21, Lisle could possibly show cause and prejudice to overcome the

21

procedural default, under Martinez; that determination, though, is intertwined with the

22

merits of the claims, such that it cannot be properly addressed at this point in this action.

23

Therefore, the Court does not, in this Order, consider the question of the procedural

24

default of the claims of ineffective assistance of trial counsel in Claim 21. Regarding the

25

other claims in Claim 21—those not asserting ineffective assistance of trial counsel—Lisle

26

does not make any argument, specific to those claims, that he can overcome the

27

procedural default.

28

///
48

1

Therefore, all claims in Claim 21, other than claims of ineffective assistance of trial

2

counsel, are dismissed on both statute of limitations grounds and procedural default

3

grounds; the claims of ineffective assistance of trial counsel in Claim 21 are dismissed on

4

statute of limitations grounds.

5

22.

Claim 22

6

In Claim 22, Lisle claims that lethal injection is cruel and unusual punishment.

7

(Fourth Amended Petition (ECF No. 292) at 389-414.) In subpart A of Claim 22, Lisle

8

claims that “[l]ethal injection is unconstitutional in all circumstances.” (Id. at 389-98.) In

9

subpart B, Lisle claims that “[l]ethal injection in Nevada is unconstitutional.” (Id. at 398-

10

414.)

11

Claim 22A does not relate back to Lisle’s original petition in this case. Also, as

12

Claim 22A was not raised on either Lisle’s direct appeal or the appeal in his first state

13

habeas action, it is subject to dismissal as procedurally defaulted. Claim 22A will be

14

dismissed on statute of limitations and procedural default grounds.

15

With respect to Claim 22B, there is a question whether the claim is ripe, and subject

16

to adjudication in this habeas action, as it is unclear whether the State has established

17

the protocol by which Lisle’s execution would be conducted. The Court will deny

18

Respondents’ motion to dismiss Claim 22B, and will leave the question of the ripeness of

19

Claim 22B, and any other issues concerning the claim, to be determined after

20

Respondents file an answer and Petitioner files a reply.

21

23.

Claim 23

22

In Claim 23, Lisle claims that his federal constitutional rights were violated

23

“because Mr. Lisle’s capital trial, sentencing, and review on direct appeal were conducted

24

before state judicial officers whose tenure in office was not during good behavior but

25

whose tenure was dependent on popular election.” (Fourth Amended Petition (ECF No.

26

292) at 415-22.)

27

///

28

///
49

1

Lisle makes no argument, specific to Claim 23, that the claim relates back to his

2

original petition. Claim 23 does not relate back to Lisle’s original petition. Claim 23, in its

3

entirety, is barred by the statute of limitations.

4

Lisle did not raise Claim 23 on either his direct appeal or the appeal in his first state

5

habeas action; it is, therefore, subject to dismissal as procedurally defaulted. Lisle does

6

not make any argument specific to Claim 23 that he can overcome the procedural default

7

of that claim.

8

Claim 23 will be dismissed on both statute of limitations grounds and procedural

9

default grounds.

10

24.

Claim 24

11

In Claim 24, Lisle claims that his federal constitutional rights were violated

12

“because the state courts failed to provide Mr. Lisle with the effective assistance of

13

counsel during the appellate and post-conviction stages of his proceedings.” (Fourth

14

Amended Petition (ECF No. 292) at 423-32.)

15

Claim 24 generally claims that Lisle received ineffective assistance of counsel on

16

his direct appeal and in his first state habeas action. Claim 24 does not describe any

17

particular error made by his counsel, or any particular prejudice to him. Instead, in Claim

18

24 Lisle simply incorporates all the other claims in Lisle’s Petition. As such, Claim 24 is

19

redundant of Lisle’s other claims. Claim 24 will be dismissed for that reason.

20

25.

Claim 25

21

In Claim 25, Lisle claims that his death sentence is invalid under the federal

22

constitution “because the Nevada capital punishment system operates in an arbitrary and

23

capricious manner.” (Fourth Amended Petition (ECF No. 292) at 433-36.)

24

Lisle makes no argument, specific to Claim 25, that the claim relates back to his

25

original petition. Claim 25 does not relate back to Lisle’s original petition. Claim 25, in its

26

entirety, is barred by the statute of limitations.

27

Lisle did not raise Claim 25 on either his direct appeal or the appeal in his first state

28

habeas action; it is, therefore, subject to dismissal as procedurally defaulted. Lisle does
50

1

not make any argument specific to Claim 25 that he can overcome the procedural default

2

of that claim.

3

Claim 25 will be dismissed on both statute of limitations grounds and procedural

4

default grounds.

5

26.

Claim 26

6

In Claim 26, Lisle claims that his death sentence is invalid under the federal

7

constitution “because the death penalty is cruel and unusual punishment in all

8

circumstances.” (Fourth Amended Petition (ECF No. 292) at 437-38.)

9

Lisle makes no argument, specific to Claim 26, that the claim relates back to his

10

original petition. Claim 26 does not relate back to Lisle’s original petition. Claim 26, in its

11

entirety, is barred by the statute of limitations.

12

Lisle did not raise Claim 26 on either his direct appeal or the appeal in his first state

13

habeas action; it is, therefore, subject to dismissal as procedurally defaulted. Lisle does

14

not make any argument specific to Claim 26 that he can overcome the procedural default

15

of that claim.

16

Claim 26 will be dismissed on both statute of limitations grounds and procedural

17

default grounds.

18

27.

In Claim 27, Lisle claims: “Mr. Lisle’s sentence violates the International Covenant

19
20

Claim 27

on Civil and Political Rights.” (Fourth Amended Petition (ECF No. 292) at 439-40.)

21

Lisle makes no argument, specific to Claim 27, that the claim relates back to his

22

original petition. Claim 27 does not relate back to Lisle’s original petition. Claim 27, in its

23

entirety, is barred by the statute of limitations.

24

Lisle did not raise Claim 27 on either his direct appeal or the appeal in his first state

25

habeas action; it is, therefore, subject to dismissal as procedurally defaulted. Lisle does

26

not make any argument specific to Claim 27 that he can overcome the procedural default

27

of that claim.

28

///
51

1

Claim 27 will be dismissed on both statute of limitations grounds and procedural

2

default grounds.

3

28.

Claim 28

4

In Claim 28, Lisle claims that his federal constitutional rights were violated “due to

5

the cumulative errors in the admission of evidence and instructions, gross misconduct by

6

state officials and witnesses, and the systematic deprivation of Mr. Lisle’s right to the

7

effective assistance of counsel.” (Fourth Amended Petition (ECF No. 292) at 441-42.)

8

Claim 28 is a cumulative error claim. Claim 28 is procedurally viable to the extent

9

that there are other claims in Lisle’s petition that remain procedurally viable. The motion

10

to dismiss will be denied with respect to Claim 28.

11

29.

Claim 29

12

In Claim 29, Lisle claims that his conviction and death sentence are invalid under

13

the federal constitution “because he may become incompetent to be executed.” (Fourth

14

Amended Petition (ECF No. 292) at 443.)

15

There is a question whether this claim is ripe. The Court will deny Respondents’

16

motion to dismiss Claim 29, and will leave the question of the ripeness of Claim 29, and

17

any other issues concerning the claim, to be determined after Respondents file an answer

18

and Petitioner files a reply.

19

30.

Claim 30

20

In Claim 30, Lisle claims that his “trial, conviction, sentence, appeal and all post-

21

conviction proceedings are and were fundamentally unfair,” and in violation of the federal

22

constitution, “because severe mental and physical illness rendered him incompetent

23

during those proceedings,” and because of “maltreatment while incarcerated.” (Fourth

24

Amended Petition (ECF No. 292) at 444-64.) In subpart A of Claim 30, Lisle claims: “Mr.

25

Lisle had known mental and physical issues . . . before his trial.” (Id. at 445-48.) In subpart

26

B, Lisle claims: “Circumstances of Mr. Lisle’s confinement at Ely State Prison have

27

exacerbated Mr. Lisle’s physical and mental health issues.” (Id. at 448-63.)

28

///
52

1

Lisle makes no argument, specific to Claim 30, that the claim relates back to his

2

original petition. Claim 30 does not relate back to Lisle’s original petition. Claim 30, in its

3

entirety, is barred by the statute of limitations.

4

Lisle did not raise Claim 30 on either his direct appeal or the appeal in his first state

5

habeas action; it is, therefore, subject to dismissal as procedurally defaulted. Lisle does

6

not make any argument specific to Claim 30 that he can overcome the procedural default

7

of that claim.

8

Claim 30 will be dismissed on both statute of limitations grounds and procedural

9

default grounds.

10

31.

Claim 31

11

In Claim 31, Lisle claims that his federal constitutional rights were violated

12

“because Mr. Lisle’s attorneys failed to object to the admission of evidence during the

13

penalty phase of his trial which recounted events that did not result in a criminal conviction

14

and that occurred before Mr. Lisle reached the age of eighteen.” (Fourth Amended

15

Petition (ECF No. 292) at 465-68.)

16

Lisle makes no argument, specific to any of the claims in Claim 31, that any of

17

these claims relate back to his original petition. The claims in Claim 31 do not relate back

18

to Lisle’s original petition. All of Claim 31 is barred by the statute of limitations.

19

Lisle argues that the Nevada Supreme Court necessarily considered this claim as

20

part of its mandatory review of his case on direct appeal pursuant to NRS § 177.055. (See

21

Opposition to Motion to Dismiss (ECF No. 298) at 133-34.) As is discussed above, in

22

section III(B)(2), the Court finds that Lisle has not shown that these claims were “clearly

23

encompassed” within the scope of NRS § 177.055 and “readily apparent” in the record

24

reviewed by the Nevada Supreme Court. See Comer, 463 F.3d at 954-56.

25

The claims in Claim 31 were not asserted by Lisle on either his direct appeal or the

26

appeal in his first state habeas action. Therefore, these claims are subject to the

27

procedural default doctrine. With respect to the claims of ineffective assistance of trial

28

counsel in Claim 31, Lisle could possibly show cause and prejudice to overcome the
53

1

procedural default, under Martinez; that determination, though, is intertwined with the

2

merits of the claims, such that it cannot be properly addressed at this point in this action.

3

Therefore, the Court does not, in this Order, consider the question of the procedural

4

default of the claims of ineffective assistance of trial counsel in Claim 31. Regarding the

5

other claims in Claim 31—those not asserting ineffective assistance of trial counsel—Lisle

6

does not make any argument, specific to those claims, that he can overcome the

7

procedural default.

8

Therefore, all claims in Claim 31, other than claims of ineffective assistance of trial

9

counsel, are dismissed on both statute of limitations grounds and procedural default

10

grounds; the claims of ineffective assistance of trial counsel in Claim 31 are dismissed on

11

statute of limitations grounds.

12

32.

Claim 32

13

In Claim 32, Lisle claims that his federal constitutional rights were violated

14

“because the State committed prosecutorial misconduct in presenting testimony that

15

improperly bolstered its witnesses; the trial court erred in allowing that testimony; and trial

16

counsel provided ineffective assistance in failing to object to that testimony, move to strike

17

that testimony, and move for a mistrial following the jury’s exposure to that testimony.

18

(Fourth Amended Petition (ECF No. 292) at 469-78.)

19

Lisle makes no argument, specific to Claim 32, that the claim relates back to his

20

original petition. Claim 32 does not relate back to Lisle’s original petition. Claim 32, in its

21

entirety, is barred by the statute of limitations.

22

The claims in Claim 32 were not asserted by Lisle on either his direct appeal or the

23

appeal in his first state habeas action. Therefore, these claims are subject to the

24

procedural default doctrine. With respect to the claims of ineffective assistance of trial

25

counsel in Claim 32, Lisle could possibly show cause and prejudice to overcome the

26

procedural default, under Martinez; that determination, though, is intertwined with the

27

merits of the claims, such that it cannot be properly addressed at this point in this action.

28

Therefore, the Court does not, in this Order, consider the question of the procedural
54

1

default of the claims of ineffective assistance of trial counsel in Claim 32. Regarding the

2

other claims in Claim 32—those not asserting ineffective assistance of trial counsel—Lisle

3

does not make any argument, specific to those claims, that he can overcome the

4

procedural default.

5

Therefore, all claims in Claim 32, other than claims of ineffective assistance of trial

6

counsel, are dismissed on both statute of limitations grounds and procedural default

7

grounds; the claims of ineffective assistance of trial counsel in Claim 32 are dismissed on

8

statute of limitations grounds.

9

33.

Claim 33

10

In Claim 33, Lisle claims that his federal constitutional rights were violated

11

“because the trial court erroneously admitted hearsay evidence of an alleged prior bad

12

act committed by Mr. Lisle.” (Fourth Amended Petition (ECF No. 292) at 479-85.)

13

Lisle makes no argument, specific to Claim 33, that the claim relates back to his

14

original petition. Claim 33 does not relate back to Lisle’s original petition. Claim 33, in its

15

entirety, is barred by the statute of limitations.

16

The claims in Claim 33 were not asserted by Lisle on either his direct appeal or the

17

appeal in his first state habeas action. Therefore, these claims are subject to the

18

procedural default doctrine. With respect to the claims of ineffective assistance of trial

19

counsel in Claim 33, Lisle could possibly show cause and prejudice to overcome the

20

procedural default, under Martinez; that determination, though, is intertwined with the

21

merits of the claims, such that it cannot be properly addressed at this point in this action.

22

Therefore, the Court does not, in this Order, consider the question of the procedural

23

default of the claims of ineffective assistance of trial counsel in Claim 33. Regarding the

24

other claims in Claim 33—those not asserting ineffective assistance of trial counsel—Lisle

25

does not make any argument, specific to those claims, that he can overcome the

26

procedural default.

27

Therefore, all claims in Claim 33, other than claims of ineffective assistance of trial

28

counsel, are dismissed on both statute of limitations grounds and procedural default
55

1

grounds; the claims of ineffective assistance of trial counsel in Claim 33 are dismissed on

2

statute of limitations grounds.

3

34.

Claim 34

4

In Claim 34, Lisle claims that his federal constitutional rights were violated

5

“because the trial court erred in allowing the State to present evidence of Mr. Lisle’s gang

6

membership; trial counsel were ineffective when they failed to object to evidence of Mr.

7

Lisle’s gang membership and even elicited some evidence about that issue themselves;

8

and the State committed misconduct when it elicited evidence about Mr. Lisle’s gang

9

membership in violation of the trial court’s pretrial order.” (Fourth Amended Petition (ECF

10

No. 292) at 486-94.)

11

Lisle makes no argument, specific to Claim 34, that the claim relates back to his

12

original petition. Claim 34 does not relate back to Lisle’s original petition. Claim 34, in its

13

entirety, is barred by the statute of limitations.

14

The claims in Claim 34 were not asserted by Lisle on either his direct appeal or the

15

appeal in his first state habeas action. Therefore, these claims are subject to the

16

procedural default doctrine. With respect to the claims of ineffective assistance of trial

17

counsel in Claim 34, Lisle could possibly show cause and prejudice to overcome the

18

procedural default, under Martinez; that determination, though, is intertwined with the

19

merits of the claims, such that it cannot be properly addressed at this point in this action.

20

Therefore, the Court does not, in this Order, consider the question of the procedural

21

default of the claims of ineffective assistance of trial counsel in Claim 34. Regarding the

22

other claims in Claim 34—those not asserting ineffective assistance of trial counsel—Lisle

23

does not make any argument, specific to those claims, that he can overcome the

24

procedural default.

25

Therefore, all claims in Claim 34, other than claims of ineffective assistance of trial

26

counsel, are dismissed on both statute of limitations grounds and procedural default

27

grounds; the claims of ineffective assistance of trial counsel in Claim 34 are dismissed on

28

statute of limitations grounds.
56

1

35.

Claim 35

2

In Claim 35, Lisle claims that his federal constitutional rights were violated

3

“because trial counsel rendered constitutionally deficient assistance when they failed to

4

cover their client’s tattoos for trial and failed to object to the State’s gratuitous and

5

inflammatory references to the tattoos; and because the trial court erred in admitting

6

State’s Exhibit 31.” (Fourth Amended Petition (ECF No. 292) at 495-501.)

7

Lisle makes no argument, specific to Claim 35, that the claim relates back to his

8

original petition. Claim 35 does not relate back to Lisle’s original petition. Claim 35, in its

9

entirety, is barred by the statute of limitations.

10

The claims in Claim 35 were not asserted by Lisle on either his direct appeal or the

11

appeal in his first state habeas action. Therefore, these claims are subject to the

12

procedural default doctrine. With respect to the claims of ineffective assistance of trial

13

counsel in Claim 35, Lisle could possibly show cause and prejudice to overcome the

14

procedural default, under Martinez; that determination, though, is intertwined with the

15

merits of the claims, such that it cannot be properly addressed at this point in this action.

16

Therefore, the Court does not, in this Order, consider the question of the procedural

17

default of the claims of ineffective assistance of trial counsel in Claim 35. Regarding the

18

other claims in Claim 35—those not asserting ineffective assistance of trial counsel—Lisle

19

does not make any argument, specific to those claims, that he can overcome the

20

procedural default.

21

Therefore, all claims in Claim 35, other than claims of ineffective assistance of trial

22

counsel, are dismissed on both statute of limitations grounds and procedural default

23

grounds; the claims of ineffective assistance of trial counsel in Claim 35 are dismissed on

24

statute of limitations grounds.

25

36.

Claim 36

26

In Claim 36, Lisle claims that his federal constitutional rights were violated because

27

“the trial court erroneously admitted the testimony of Edward Ortiz, and trial counsel

28

rendered deficient performance when they failed to request a limiting instruction on the
57

1

jury’s use of that testimony, and the trial court erroneously admitted the testimony of Jeff

2

Kurtz.” (Fourth Amended Petition (ECF No. 292) at 502-09.)

3

Lisle makes no argument, specific to Claim 36, that the claim relates back to his

4

original petition. Claim 36 does not relate back to Lisle’s original petition. Claim 36, in its

5

entirety, is barred by the statute of limitations.

6

The claims in Claim 36 were not asserted by Lisle on either his direct appeal or the

7

appeal in his first state habeas action. Therefore, these claims are subject to the

8

procedural default doctrine. With respect to the claims of ineffective assistance of trial

9

counsel in Claim 36, Lisle could possibly show cause and prejudice to overcome the

10

procedural default, under Martinez; that determination, though, is intertwined with the

11

merits of the claims, such that it cannot be properly addressed at this point in this action.

12

Therefore, the Court does not, in this Order, consider the question of the procedural

13

default of the claims of ineffective assistance of trial counsel in Claim 36. Regarding the

14

other claims in Claim 36—those not asserting ineffective assistance of trial counsel—Lisle

15

does not make any argument, specific to those claims, that he can overcome the

16

procedural default.

17

Therefore, all claims in Claim 36, other than claims of ineffective assistance of trial

18

counsel, are dismissed on both statute of limitations grounds and procedural default

19

grounds; the claims of ineffective assistance of trial counsel in Claim 36 are dismissed on

20

statute of limitations grounds.

21
22

E.

Lisle’s Motion for Leave to Conduct Discovery and Motion for Orders
for Medical Examination and Site Inspection

23

Lisle filed, with his opposition to the motion to dismiss, a motion for discovery, and

24

a motion for medical examination and site inspection. (ECF Nos. 300, 305.) Respondents

25

filed oppositions to those motions, and Lisle filed replies. (ECF Nos. 310, 311, 314, 315.)

26

A habeas petitioner is not entitled to discovery “as a matter of ordinary course.”

27

Bracy v. Gramley, 520 U.S. 899, 904 (1997); see also Campbell v. Blodgett, 982 F.2d

28

1356, 1358 (9th Cir. 1993). However, “[a] judge may, for good cause, authorize a party to
58

1

conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of

2

discovery.” Rule 6(a) of the Rules Governing § 2254 Cases. There is good cause for

3

discovery “where specific allegations before the court show reason to believe that the

4

petitioner may, if the facts are fully developed, be able to demonstrate that he

5

is . . . entitled to relief.” Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S.

6

286, 300 (1969)). The ultimate question whether discovery is justified is within the

7

discretion of the Court. Id.

8

In his motion for discovery, Lisle first requests leave of court to conduct discovery

9

related to the Logan murder, which is the murder that is the subject of Lisle’s other capital

10

habeas corpus action in this Court (Case No. 2:03-cv-1005-JCM-CWH). (See Motion for

11

Leave to Conduct Discovery (ECF No. 300) at 5-7.) Lisle contends that the discovery will

12

demonstrate that he is actually innocent of the Logan murder, and, therefore, will support

13

his claim of actual innocence in Claim 2 in this case. (See id.; see also Fourth Amended

14

Petition (ECF No. 292) at 69-229 (Claim 2).) However, the Court determines that this

15

discovery is unnecessary to the resolution of the motion to dismiss. The Court denies the

16

motion to dismiss with respect to Claim 2, without need for this discovery. (See supra

17

section III(D)(2).)

18

Next, in his motion for discovery, and also in his motion for medical examination

19

and site inspection, Lisle requests discovery concerning his physical and mental

20

condition, and the conditions of his confinement, from August 5, 2002, the date on which

21

his first state habeas action was completed, to August 20, 2003, the date on which his

22

original petition in this case was filed, in order to show that he is entitled to equitable

23

tolling during that time period. (See Motion for Leave to Conduct Discovery (ECF No. 300)

24

at 7-20; Motion for Orders for Medical Examination and Site Inspection (ECF No. 305).)

25

The Court determines that this discovery, as well, is unnecessary to the resolution of the

26

motion to dismiss. Without need for further factual development, the Court grants Lisle

27

equitable tolling from August 5, 2002, to June 23, 2005, the date of the Supreme Court’s

28

Mayle decision. (See supra sections III(A)(4) and III(A)(5).)
59

1

Therefore, the Court will deny Lisle’s motion for discovery, and his motion for

2

medical examination and site inspection. The denial of these motions is without prejudice

3

to Lisle seeking discovery relative to the merits of his remaining claims, as contemplated

4

in the scheduling order entered on March 17, 2017. (ECF No. 284.)
Lisle’s Motion for Evidentiary Hearing

5

F.

6

Lisle also filed, with his opposition to the motion to dismiss, a motion for evidentiary

7

hearing. (ECF No. 303.) Respondents filed an opposition to that motion, and Lisle filed a

8

reply. (ECF Nos. 312, 316.)

9

Evidentiary hearings are authorized in federal habeas corpus actions by Rule 8 of

10

the Rules Governing § 2254 Cases. However, an evidentiary hearing is not required if the

11

issues can be resolved by reference to the state court record. See Totten v. Merkle, 137

12

F.3d 1172, 1176 (9th Cir. 1998) (“It is axiomatic that when issues can be resolved with

13

reference to the state court record, an evidentiary hearing becomes nothing more than a

14

futile exercise.”); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record

15

refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district

16

court is not required to hold an evidentiary hearing.”). Moreover, “an evidentiary hearing

17

is not required if the claim presents a purely legal question and there are no disputed

18

facts.” Beardslee v. Woodford, 358 F.3d 560, 585 (9th Cir. 2004); see also Hendricks v.

19

Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992).

20

Lisle first requests an evidentiary hearing “to demonstrate that [he] is actually

21

innocent of the death penalty.” (See Motion for Evidentiary Hearing (ECF No. 303) at 4.)

22

This request relates to Claim 2. (See Fourth Amended Petition (ECF No. 292) at 69-229

23

(Claim 2).) The Court denies the motion to dismiss with respect to Claim 2 without need

24

for further factual development. (See supra section III(D)(2).)

25

Next, Lisle requests an evidentiary hearing “to demonstrate that [he] has suffered

26

prejudice from the delayed focus on the statute of limitations.” (See Motion for Evidentiary

27

Hearing (ECF No. 303) at 5-6.) This request relates to Lisle’s contention that “the State

28

waived its right to assert a statute of limitations defense against his initial federal petition
60

1

because it failed to raise that issue in the motion to dismiss that it filed on October 4,

2

2004.” (See id.; see also supra section III(A)(3).) However, the Court declines to rule on

3

the waiver argument because, as a result of equitable tolling, Lisle’s original petition was

4

timely filed. (See supra section III(A)(3).)

5

Lisle also requests an evidentiary hearing to show that he is entitled to equitable

6

tolling during 2002 and 2003. (See Motion for Evidentiary Hearing (ECF No. 303) at 5-

7

18.) As with Lisle’s request for discovery for this purpose (see supra section III(D)), the

8

Court finds that further factual development in this regard is unnecessary. Without need

9

for further factual development, the Court grants Lisle equitable tolling from August 5,

10

2002, to June 23, 2005, the date of the Supreme Court’s Mayle decision. (See supra

11

sections III(A)(4) and III(A)(5).)

12

Finally, Lisle requests an evidentiary hearing to show that he can overcome the

13

procedural default of any of his claims of ineffective assistance of trial counsel, under

14

Martinez. (See Motion for Evidentiary Hearing (ECF No. 303) at 18-19.) Here too, further

15

factual development is unnecessary to resolve the motion to dismiss. The Court denies

16

the motion to dismiss Lisle’s claims of ineffective assistance of trial counsel on procedural

17

default grounds, determining that the question whether Lisle can overcome the procedural

18

default, under Martinez, is intertwined with the merits of the claims, such that the question

19

of the procedural default will be better addressed along with the merits of the claims.

20

Therefore, the Court will deny Lisle’s motion for evidentiary hearing. The denial of

21

this motion is without prejudice to Lisle seeking an evidentiary hearing relative to the

22

merits of his remaining claims, as contemplated in the scheduling order entered on March

23

17, 2017. (ECF No. 284.)

24

IV.

CONCLUSION

25

It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 293) is

26

granted in part and denied in part. All the claims in Petitioner’s fourth amended habeas

27

petition are dismissed except the following:

28

///
61

1

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the guilt
phase of the trial, for failing to object to the prosecutor’s expressions of
personal opinion and aligning of himself with the jury, in closing arguments;

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the
penalty phase of the trial, for failing to object to the prosecutor’s expressions of
personal opinion and aligning of himself with the jury, in closing arguments;

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the
penalty phase of the trial, for failing to object to the prosecutor’s argument that
allegedly improperly shifted to the defense the burden to prove that mitigating
circumstances did not outweigh aggravating circumstances;

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the
penalty phase of the trial, for failing to object to the prosecutor’s argument that
the jury should “send a message;”

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the
penalty phase of the trial, for failing to object to the prosecutor’s argument that
Lisle would present a danger in the future;

-

Claim 2;

-

Claim 8A;

-

Claim 8B1;

-

Claim 8C;

-

Claim 8E;

-

Claim 8G (regarding Claims 8A, 8B1, 8C, and 8E);

-

the claims of ineffective assistance of trial counsel in Claim 8H (regarding
Claims 8A, 8B1, 8C, and 8E);

-

Claim 10, except for the claims of ineffective assistance of appellate and postconviction counsel;

-

Claim 16, except for the claims of ineffective assistance of appellate and postconviction counsel;

22

-

Claim 22B;

23

-

Claim 28; and

24

-

Claim 29.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

25

In all other respects, the motion to dismiss is denied.
It is further ordered that Petitioner’s Motion for Leave to Conduct Discovery (ECF

26
27

No. 300) is denied.

28

///
62

It is further ordered that Petitioner’s Motion for Evidentiary Hearing (ECF No. 303)

1
2

is denied.
It is further ordered that Petitioner’s Motion for Orders for Medical Examination and

3
4

Site Inspection (ECF No. 305) is denied.

5

It is further ordered that Respondents are to, within ninety (90) days from the date

6

of this Order, file an answer, responding to the remaining claims in Petitioner’s fourth

7

amended habeas petition, which are the following:

8

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the guilt
phase of the trial, for failing to object to the prosecutor’s expressions of
personal opinion and aligning of himself with the jury, in closing arguments;

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the
penalty phase of the trial, for failing to object to the prosecutor’s expressions of
personal opinion and aligning of himself with the jury, in closing arguments;

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the
penalty phase of the trial, for failing to object to the prosecutor’s argument that
allegedly improperly shifted to the defense the burden to prove that mitigating
circumstances did not outweigh aggravating circumstances;

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the
penalty phase of the trial, for failing to object to the prosecutor’s argument that
the jury should “send a message;”

-

the claim in Claim 1 asserting ineffective assistance of trial counsel in the
penalty phase of the trial, for failing to object to the prosecutor’s argument that
Lisle would present a danger in the future;

-

Claim 2;

-

Claim 8A;

-

Claim 8B1;

-

Claim 8C;

-

Claim 8E;

-

Claim 8G (regarding Claims 8A, 8B1, 8C, and 8E);

-

the claims of ineffective assistance of trial counsel in Claim 8H (regarding
Claims 8A, 8B1, 8C, and 8E);

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Claim 10, except for the claims of ineffective assistance of appellate and postconviction counsel;

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Claim 16, except for the claims of ineffective assistance of appellate and postconviction counsel;

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Claim 22B;

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Claim 28; and

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Claim 29.

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In all other respects, the schedule for further proceedings set forth in the order entered

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March 17, 2017 (ECF No. 284) remains in effect.

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DATED THIS 2nd day of July 2018.

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MIRANDA M. DU,
UNITED STATES DISTRICT JUDGE

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