KEVIN JAMES LISLE v. E.K. MCDANIEL

Filing 479

ORDERED that Petitioner's Motion for Evidentiary Hearing (ECF No. 337 ) is treated as renewed and is denied. It is further ordered that Claims 22B and 29 of Petitioners Fourth Amended Petition for Writ of Habeas Corpus (ECF No. [2 92]) are dismissed, as those claims are not ripe. It is further ordered that Petitioner's Fourth Amended Petition for Writ of Habeas Corpus (ECF No. 292 ) is denied. It is further ordered that Petitioner is granted a certificate of appealability with respect to Claim 16A of his Fourth Amended Petition for Writ of Habeas Corpus (ECF No. 292 ). As to all other issues, the Court denies Petitioner a certificate of appealability. The Clerk of Court is directed to enter judgment accordingly. Signed by Chief Judge Miranda M. Du on 8/29/2022. (Copies have been distributed pursuant to the NEF - DRM)

Case 2:03-cv-01006-MMD-DJA Document 479 Filed 08/29/22 Page 1 of 84

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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KEVIN JAMES LISLE,

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Petitioner,

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Case No. 2:03-cv-01006-MMD-DJA
ORDER

v.
WILLIAM REUBART, et al.,

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Respondents.

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I.

SUMMARY

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

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individual incarcerated at Nevada’s Ely State Prison who is sentenced to death. The case

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is fully briefed and before the Court for adjudication of the merits of the claims remaining

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in Lisle’s fourth amended habeas petition (ECF No. 292). The Court will deny Lisle’s

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petition and grant Lisle a certificate of appealability as to Claim 16A.

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II.

BACKGROUND

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This habeas corpus action is brought under 28 U.S.C. § 2254. Lisle’s conviction

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

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

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described the 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-yearold 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

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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.
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.
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 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.
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
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(“Vanella”). Lisle stated, in Evans’ presence, that he was going to kill a “snitch”
named Justin. Lopez was not present at this conversation.
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.
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.
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.
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, 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.
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.
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.]
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.
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.
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 at ECF No. 187-4).

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In a separate case, Case No. 2:03-cv-1005-JCM-DJA in this Court, Lisle sought

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relief with respect to his conviction and death sentence for the Logan murder. Lisle has

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been denied habeas corpus relief in that case, and Lisle has appealed. The Logan murder

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occurred after the Lusch murder, but Lisle was tried for the Logan murder before he was

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tried for the Lusch murder.

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

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on June 7, 1996. (ECF No. 186-15.) Lisle appealed to the Nevada Supreme Court, and

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the Nevada Supreme Court affirmed on June 17, 1997. See Lisle, 941 P.2d at 477. The

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Nevada Supreme Court denied Lisle’s petition for rehearing. (ECF No. 187-7.) Lisle

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petitioned to the United States Supreme Court for certiorari, and that petition was denied

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on October 5, 1998. (ECF No. 187-11.)

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

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filed a supplement to his petition. (ECF No. 187-22.) The state district court denied the

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petition. (ECF No. 187-26.) Lisle appealed, and the Nevada Supreme Court affirmed on

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July 9, 2002. (ECF No. 188-5.)

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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.) The Court appointed the Federal Public Defender for

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the District of Nevada (FPD) to represent Lisle. (ECF Nos. 5, 13, 15.) Lisle then filed a

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motion for leave to conduct discovery (ECF No. 47), and extensive discovery proceedings

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ensued. On May 20, 2008, Lisle filed a first amended habeas petition. (ECF No. 72.)

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On July 7, 2008, Lisle filed a motion to stay this case while he pursued certain

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claims in state court. (ECF No. 78.) Respondents did not oppose that motion, and on

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August 4, 2008, this case was stayed. (ECF No. 81.)

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On October 3, 2008, Lisle filed a second state habeas petition. (ECF Nos. 189-1,

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189-2, 189-3, 190-1, 190-2, 190-3, 190-4.) The state district court dismissed that petition

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on procedural grounds. (ECF No. 192-4.) Lisle appealed, and the Nevada Supreme Court

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affirmed on February 24, 2012. (ECF No. 193-4.)

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The stay of this case was lifted on December 12, 2012. (ECF No. 119.) On March

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25, 2013, Lisle filed a second amended petition for writ of habeas corpus (ECF No. 129),

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and on April 28, 2014, Lisle filed a third amended petition (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.) Lisle’s counsel—the FPD—then filed an ex parte

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motion to withdraw (ECF No. 213 (Sealed)), informing the Court that they had a conflict

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with respect to a potential argument for equitable tolling in response to Respondents’

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assertion of the statute of limitations defense. The Court ultimately denied the FPD’s

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motion to withdraw but appointed separate counsel to assert the equitable tolling

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argument for Lisle. (ECF Nos. 225 (Sealed), 231 (Sealed), 233.) Lisle’s separate counsel

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filed supplemental memoranda in response to the motion to dismiss. (ECF Nos. 240,

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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.) The Court granted that motion

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and directed Lisle to file a fourth amended petition including the new material. (ECF No.

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284.) The Court denied the motion to dismiss the third amended petition, without

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prejudice, as moot.

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On April 21, 2017, Lisle filed his fourth amended petition (ECF No. 292), the
operative petition in this action, asserting the following claims:
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1.

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Lisle’s federal constitutional rights were violated as a result of
ineffective assistance of counsel.
A.

Trial counsel were ineffective for failing to present
available mitigating evidence at the penalty phase of
Lisle’s trial.

B.

Trial counsel were ineffective at the guilt phase of
Lisle’s trial.

C.

Lisle’s federal constitutional rights were violated as a
result of the cumulative effect of ineffective assistance
of his counsel.

D.

Lisle received ineffective assistance of counsel on his
direct appeal and in his state post-conviction
proceedings.

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2.

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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.”

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A.

“The kidnapping aggravating circumstance
unconstitutional as applied to Mr. Lisle.”

B.

“The ‘previously convicted of another murder’
aggravator is unconstitutional as applied to Mr. Lisle.”

C.

“Counsel at all proceedings failed to raise the
unconstitutionality of the aggravating factors applied at
the Lusch proceedings.”

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3.

is

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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.

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A.

Lisle’s federal constitutional rights were violated as a
result of admission of evidence regarding the Logan
homicide.

B.

Lisle’s federal constitutional rights were violated as a
result of admission of evidence “that Melcher was an
‘enforcer’ for Lisle.”

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4.

Lisle’s federal constitutional rights were violated “because the trial
court admitted prejudicial extrajudicial statements of Mr. Lisle’s codefendant Jerry Lopez.”

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.”

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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.”

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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.”

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A.

“Mr. Lisle’s jury was death-biased.”

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B.

“A death-biased juror was seated.”

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C.

“The trial court erroneously denied trial counsel’s
motion for a sequestered jury.”

D.

“The errors in the voir dire process should be
considered singly and cumulatively.”

E.

Lisle’s counsel on direct appeal and in his state postconviction proceedings “failed to investigate, develop,
and present this claim.”

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Lisle’s federal constitutional rights were violated “because
prosecutorial misconduct deprived Mr. Lisle of fundamentally fair
proceedings.”

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A.

“The State improperly expressed personal opinions
during closing arguments.”

B.

“The State improperly commented on the lack of
mitigating evidence and the role of mitigating
circumstances.”

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1.

“The State made improper comments
regarding
Mr.
Lisle’s
mitigation
presentation.”

2.

“The State misstated the law regarding
mercy.”

C.

“The State improperly encouraged jurors to sentence
Mr. Lisle based on passion and prejudice.”

D.

“The State improperly disparaged trial counsel and Mr.
Lisle.”

E.

“The State argued the death penalty was necessary to
prevent Mr. Lisle from killing again.”

F.

“The State made a misrepresentation to the trial court.”
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G.

The State’s misconduct should be considered singly
and cumulatively.

H.

“Trial, appellate, and post-conviction counsel were
ineffective for failing to challenge the extensive
prosecutorial misconduct which occurred in Mr. Lisle’s
trial.”

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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.”

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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.”

B.

“Trial counsel were ineffective for failing to object to the
restraints.”

C.

“Appellate and post-conviction counsel were ineffective
in failing to raise this claim.”

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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.”

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.”

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.”

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A.

“The State failed to disclose material impeachment
evidence related to its witness Adam Evans.”

B.

“The State failed to disclose material impeachment
evidence related to its witness John Melcher.”

C.

“The State failed to turn over handwritten notes of a
conversation with Mr. Melcher.”

D.

“The CCDA’s ‘open file’ policy failed to comply with
constitutional discovery obligations.”

E.

“The State failed to disclose cash payments made to
witnesses.”

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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.”

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.”

15.

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Lisle’s federal constitutional rights were violated “because the trial
court erroneously instructed the jury at the guilt and penalty phase
proceedings.”

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A.

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The trial court improperly instructed the jury in the guilt
phase of the trial.
1.

The trial court improperly instructed the
jury regarding the elements of firstdegree murder.

2.

The trial court improperly instructed the
jury regarding reasonable doubt.

3.

The trial court failed “to give a curative
instruction
after
the
erroneous
introduction of prior bad act evidence.”

4.

The trial court “failed to properly instruct
the jury on the theories of aiding and
abetting and conspiracy to commit
murder.”

5.

The trial court did not properly instruct the
jury regarding possession of a deadly
weapon.

6.

The trial court gave an “equal and exact
justice instruction,” which “improperly
minimized the State’s burden of proof.”

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B.

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16.

The trial court improperly instructed the jury in the
penalty phase of the trial.
1.

The trial court gave an “anti-sympathy”
instruction.

2.

The trial court failed to instruct the jury
“regarding the limited use of prior bad act
evidence.”

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.”
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A.

“The denial of severance violated Mr. Lisle’s right to
confrontation.”

B.

“Evidence of the Logan homicide was admitted.”

C.

“False testimony was admitted.”

D.

“Mitigating evidence was precluded.”

E.

“Admission of evidence of Mr. Lopez’s alibi prejudiced Mr.
Lisle.”

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F.

“Denial of an individualized sentencing determination.”

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G.

“Considered singly or in combination with the other
constitutional errors identified in this petition, the failure to
sever Mr. Lisle’s trial from that his codefendant had a
substantial and injurious effect on Mr. Lisle’s conviction and
death sentence,” and Lisle’s trial, appellate and state postconviction counsel were ineffective in their handling of the
issue.

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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.”

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.”

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.”

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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.”

22.

Lethal injection is cruel and unusual punishment.

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23.

A.

“Lethal
injection
circumstances.”

is

unconstitutional

B.

“Lethal injection in Nevada is unconstitutional.”

in

all

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
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good behavior but whose tenure was dependent on popular
election.”
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.”

25.

Lisle’s death sentence is invalid under the federal constitution
“because the Nevada capital punishment system operates in an
arbitrary and capricious manner.”

26.

Lisle’s death sentence is invalid under the federal constitution
“because the death penalty is cruel and unusual punishment in all
circumstances.”

27.

“Mr. Lisle’s sentence violates the International Covenant on Civil and
Political Rights.”

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.”

29.

Lisle’s conviction and death sentence are invalid under the federal
constitution “because he may become incompetent to be executed.”

30.

17

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.”

18

A.

“Mr. Lisle had known mental and physical issues …
before his trial.”

B.

“Circumstances of Mr. Lisle’s confinement at Ely State
Prison have exacerbated Mr. Lisle’s physical and
mental health issues.”

3
4
5
6
7
8
9
10
11
12
13
14
15
16

19
20
21
22

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.”

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

23
24
25
26
27
28

12

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1
2
3
4
5

failing to object to that testimony, move to strike that testimony, and
move for a mistrial following the jury’s exposure to that testimony.”
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.”

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.”

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.”

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.”

6
7
8
9
10
11
12
13
14
15

On June 20, 2017, Respondents filed a motion to dismiss Lisle’s fourth amended

16

petition. (ECF No. 293.) In ruling on that motion, the Court took into consideration the

17

supplemental memoranda filed by Lisle’s separate counsel in response to the motion to

18

dismiss the third amended petition. (ECF Nos. 240, 262.) On July 2, 2018, the Court

19

granted the motion to dismiss in part and denied it in part. (ECF No. 317.) The Court

20

dismissed all claims in Lisle’s fourth amended petition except the following:

21

-

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

22
23
24
25
26
27
28

13

Case 2:03-cv-01006-MMD-DJA Document 479 Filed 08/29/22 Page 14 of 84

argument that allegedly improperly shifted to the defense the burden
to prove that mitigating circumstances did not outweigh aggravating
circumstances;

1
2

-

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 post-conviction counsel;

-

Claim 16, except for the claims of ineffective assistance of appellate
and post-conviction counsel;

17

-

Claim 22B;

18

-

Claim 28; and

19

-

Claim 29.

20

(ECF No. 317.)

3
4
5
6
7
8
9
10
11
12
13
14
15
16

21

On October 1, 2018, Respondents filed an answer, responding to Lisle’s remaining

22

claims. (ECF No. 318.) Lisle filed a reply on March 1, 2019. (ECF No. 329.) Respondents

23

filed a response to Lisle’s reply on April 1, 2019. (ECF No. 343.)

24

On March 7, 2019, Lisle filed a motion for evidentiary hearing, requesting an

25

evidentiary hearing regarding certain of his remaining claims. (ECF No. 337.)

26
27
28

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1

Respondents filed an opposition to that motion on April 1, 2019. (ECF No. 344.) Lisle filed

2

a reply in support of the motion on April 22, 2019. (ECF No. 350.)

3

In the meantime, on February 19, 2019, Lisle filed a pro se motion to waive further

4

proceedings and voluntarily dismiss this action. (ECF No. 359.) Proceedings regarding

5

that matter ensued, including an evidentiary hearing on November 12 and 13, 2020,

6

regarding the question whether Lisle’s waiver was knowing, intelligent, and voluntary.

7

(ECF Nos. 447, 448.) At the conclusion of the evidentiary hearing, Lisle withdrew his

8

motion.

9

Then, on April 2, 2021, Lisle’s counsel filed a notice (ECF No. 454) stating that

10

they received a declaration from Lisle (ECF No. 455-1) alleging retaliation on account of

11

the proceedings regarding his motion to waive further proceedings. At a hearing on

12

October 13, 2021, concerning that matter, the Court ordered that a separate civil rights

13

action under 42 U.S.C. § 1983 would be opened for adjudication of Lisle’s claims of

14

retaliation. (ECF No. 471.) Proceedings regarding that matter are ongoing in Case No.

15

3:21-cv-00445-MMD-CLB in this Court.

16

In the course of the proceedings on Lisle’s motion to waive further proceedings,

17

the Court denied Lisle’s motion for evidentiary hearing (ECF No. 337) without prejudice

18

and subject to renewal. (ECF No. 358.) The Court considers that motion to be renewed,

19

and addresses that motion in this order, in conjunction with the merits of Lisle’s remaining

20

claims.

21

On May 6, 2022, the Court ordered Lisle to show cause as to why certain of his

22

remaining claims—Claims 8A, 8C (in part), 16B, 16C, 16E and 16F—should not be

23

denied as procedurally defaulted. (ECF No. 474.) Lisle filed a response to that order on

24

July 6, 2022 (ECF No. 477), and Respondents filed a response on August 5, 2022 (ECF

25

No. 478).

26

///

27
28

15

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1

III.

DISCUSSION

2

A.

3

Because this action was initiated after April 24, 1996, the amendments to 28

4

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

5

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

6

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

7

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

8

the AEDPA:

9
10
11
12
13
14
15

Standard of Review

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

16

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

17

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

18

a rule that contradicts the governing law set forth in [the Supreme Court’s] cases” or “if

19

the state court confronts a set of facts that are materially indistinguishable from a decision

20

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

21

Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362,

22

405-06 (2000)). A state court decision is an unreasonable application of clearly

23

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

24

the state court identifies the correct governing legal principle from [the Supreme Court’s]

25

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.

26

at 75 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause requires

27
28

16

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1

the state court decision to be more than incorrect or erroneous; the state court’s

2

application of clearly established law must be objectively unreasonable. Id. (quoting

3

Williams, 529 U.S. at 409). The analysis under section 2254(d) looks to the law that was

4

clearly established by United States Supreme Court precedent at the time of the state

5

court’s decision. See Wiggins v. Smith, 539 U.S. 510, 520 (2003).

6

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

7

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

8

on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101

9

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

10

has also instructed that “even a strong case for relief does not mean the state court’s

11

contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see

12

also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (AEDPA standard is “a difficult to meet

13

and highly deferential standard for evaluating state-court rulings, which demands that

14

state-court decisions be given the benefit of the doubt”) (internal quotation marks and

15

citations omitted).

16
17
18
19

B.

Alleged Prosecutorial Misconduct and Related Claims of Ineffective
Assistance of Counsel
1.

Expressing Personal Opinion and Aligning with Jury (Claims 1
(in Part), 8A, 8H (in Part))

20

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

21

of prosecutorial misconduct. (ECF No. 292 at 293-94.) In subpart A of Claim 8, Lisle

22

claims that, in closing argument in both the guilt and penalty phases of his trial, the

23

prosecutors improperly expressed personal opinions and aligned themselves with the

24

jury. (Id. at 294-95.) In parts of Claims 1 and 8H, Lisle claims that his trial counsel were

25

ineffective because they failed to object to this misconduct and failed to request the court

26

to instruct the jury to disregard the improper argument. (Id. at 76-77, 304.)

27
28

17

Case 2:03-cv-01006-MMD-DJA Document 479 Filed 08/29/22 Page 18 of 84

1

In Claim 8A, Lisle identifies four kinds of arguments made by the prosecutors in

2

which he claims they expressed personal opinions or aligned themselves with the jury.

3

First, Lisle points out that one of the prosecutors repeatedly used first-person plural

4

pronouns such as “we” and “us.” (Id. at 295.) Second, Lisle points out that one of the

5

prosecutors used phrases such as “I think,” “I believe,” and “I know.” (Id. at 294-95.) Third,

6

Lisle points out that one of the prosecutors stated, “I want you to understand that the

7

death penalty, according to the evidence, is available to both of them.” (Id. at 294.) And

8

fourth, Lisle points out that one of the prosecutors said “[t]hat’s ridiculous,” in response to

9

a defense argument that a witness was lying. (Id.)

10

Of the claims in Claim 8A and the related parts of Claims 1 and 8H, only one

11

presents no issue with respect to possible procedural default, that being the claim that

12

Lisle’s trial counsel was ineffective for not objecting to the prosecutor’s use of pronouns

13

such as “we” and “us.” Lisle asserted that claim on the appeal in his first state habeas

14

action (ECF No. 188-2 at 37-42), and the Nevada Supreme Court ruled on the claim as

15

follows:

16
17
18
19
20
21
22
23
24
25
26
27
28

Lisle claims that trial counsel was ineffective for failing to object to
the prosecutor’s allegedly improper statements. [Footnote: We will not
revisit Lisle’s independent claims that the district court abused its discretion
by not sua sponte tempering the prosecutor’s statements. We rejected
these claims on direct appeal. Lisle, 113 Nev. at 705-07, 941 P.2d at 47677. The law of the case doctrine precludes reconsideration. Hall v. State,
91 Nev. 314, 535 P.2d 797 (1975).]
When addressing the jury in his closing arguments, the prosecutor
repeatedly used the words “we” and “us.” Lisle claims that by addressing
the jury this way, the prosecutor suggested he was aligned with the jury and
interjected his personal opinion.
Due to the risk that the jury will unduly rely on the prosecutor’s
conclusions because of his or her greater experience and knowledge, a
prosecutor may not assert his personal opinions during his arguments.
[Footnote: Collier v. State, 101 Nev. 473, 480, 705 P.2d 1126, 1130 (1985).]
For the same reasons, a prosecutor should not speak in a manner that
suggests that he or she has the same duties as or is aligned with the jury in
determining a defendant’s guilt or punishment. [Footnote: Snow v. State,
101 Nev. 439, 447-48, 705 P.2d 632, 639 (1985).] While this court has
condemned prosecutors’ use of the words “we” and “us” in this way, the use
18

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1
2
3
4
5

of those words is not always improper. [Footnote: See Schoels v. State, 114
Nev. 981, 987-88, 966 P.2d 735, 739 (1988), modified on rehearing 115
Nev. 33, 975 P.2d 1275 (1999).] In this case, we conclude that the
prosecutor’s use of the words “we” and “us” did not suggest that he was
aligned with the jury. Rather, the prosecutor frequently emphasized the
jury’s duty to decide Lisle’s guilt and punishment. Because the prosecutor’s
rhetoric was not improper, trial counsel was not ineffective for declining to
object.
(ECF No. 188-5 at 3-4.)

6

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

7

a two-prong test for claims of ineffective assistance of counsel. The petitioner must

8

demonstrate (1) that the attorney’s representation “fell below an objective standard of

9

reasonableness,” and (2) that the attorney’s deficient performance prejudiced the

10

defendant such that “there is a reasonable probability that, but for counsel’s

11

unprofessional errors, the result of the proceeding would have been different.” Strickland,

12

466 U.S. at 688, 694. A court considering a claim of ineffective assistance of counsel

13

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

14

range” of reasonable professional assistance. Id. at 689. The petitioner’s burden is to

15

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

16

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

17

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

18

errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather,

19

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

20

result is reliable.” Id. at 687. Where a state court previously adjudicated the claim of

21

ineffective assistance of counsel under Strickland, establishing that the decision was

22

unreasonable is especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington,

23

the Supreme Court instructed:

24
25
26
27
28

Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both highly deferential, [Strickland,
466 U.S. at 689]; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059,
138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is
“doubly” so, [Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)]. The
19

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1
2
3
4

Strickland standard is a general one, so the range of reasonable
applications is substantial. 556 U.S., at 123, 129 S.Ct. at 1420. Federal
habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under §
2254(d). When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.

5

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

6

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

7

claims).

8
9
10

Examples of the arguments of the prosecutors, using pronouns such as “we” and
“us,” cited by Lisle, are the following:
-

“In other words, a killing can occur if there’s a good reason for
it, and in this particular case we’ve got to ask ourselves some
of the questions that this first sentence asks.” (ECF No. 198-2 at 20.)

-

“There was an unlawful motive or purpose to injure another and we
know now that Justin Lusch is no longer with us because of that.”
(Id. at 21.)

-

“Well, that pretty much matches up to what Jeff Kurtz told us and
what Adam Evans told us.” (Id. at 41.)

-

“Why would they want to buy a car cover for a car window that had
been broken for some period of time, in August where we don’t have
a lot of rain[?]” (Id. at 45.)

-

“We’re here to decide the penalty of two individuals that stand before
you convicted of murder in the first degree.” (ECF No. 199-3 at 19.)

19

-

“In our system for a decade, been in prison with adults.” (Id. at 30.)

20

-

“But for the participation of Jerry Lopez, we’re not here today.” (Id. at
32.)

11
12
13
14
15
16
17
18

21
22

(See also ECF Nos. 198-2 at 20-44, 199-3 at 19-42.)

23

Lisle cites no authority holding that a prosecutor’s use of first-person plural

24

pronouns necessarily unfairly aligns the prosecution with the jury. On the other hand,

25

there is authority to the contrary. See United States v. Martinez, 484 F. App'x 177, 178-

26

79 (9th Cir. 2012) (“The prosecutor’s ‘we know’ statements did not depict the prosecutor

27
28

20

Case 2:03-cv-01006-MMD-DJA Document 479 Filed 08/29/22 Page 21 of 84

1

as part of the investigatory team but rather were a rhetorical device used to summarize

2

the evidence and describe permissible inferences”); United States v. Younger, 398 F.3d

3

1179, 1190-91 (9th Cir. 2005) (the prosecutor’s repeated use of the phrase “we know” in

4

closing argument was not improper and did not materially affect the fairness of the trial).

5

Here, the prosecutors’ use of such pronouns appears primarily to have been a

6

rhetorical device used to summarize the evidence and describe permissible inferences

7

and conclusions. (ECF Nos. 198-2 at 20, 23, 25, 30, 39, 41, 199-3 at 21, 30, 31, 41.) In

8

some cases, the prosecutors’ use of such pronouns referred to everyone who heard

9

particular testimony or instructions from the judge. (ECF Nos. 198-2 at 27, 39-41, 199-3

10

at 24.) In other cases, the use of “we” or “us” referred only to the prosecution. (ECF Nos.

11

198-2 at 25, 27, 199-3 at 30, 33.) In other cases, the use of such pronouns simply referred

12

to people who live in Las Vegas. (ECF Nos. 198-2 at 45, 199-3 at 34-35.)

13

After careful examination of the usage by the prosecutors of first-person pronouns

14

such as “we” and “us” in their arguments, and applying the deference required under the

15

AEDPA and Strickland, the Court concludes that fair-minded jurists could argue that the

16

Nevada Supreme Court was correct in ruling that Lisle’s trial counsel did not perform

17

unreasonably in declining to object or in declining to request a curative instruction, and

18

that there is no reasonable probability that, had counsel objected or requested a curative

19

instruction, the result of the trial would have been different. The Court will, therefore, deny

20

Lisle habeas corpus relief on this part of Lisle’s claims of ineffective assistance of trial

21

counsel in Claims 1 and 8H.

22

Turning now to the substantive claim regarding the prosecutors’ use of pronouns

23

such as “we” and “us” in their arguments, the parties disagree as to whether that claim is

24

procedurally defaulted.

25

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

26

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

27
28

21

Case 2:03-cv-01006-MMD-DJA Document 479 Filed 08/29/22 Page 22 of 84

1

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

2

corpus in federal court. 501 U.S. 722, 731-32 (1991) (“Just as in those cases in which a

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

(1986).

11

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

12

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

13

procedural rule. Id. at 488. For cause to exist, the external impediment must have

14

prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467,

15

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

16

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

17

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

18

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

19

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

20

In the May 6, 2022, order to show cause, the Court ordered Lisle to show cause

21

as to why Claim 8A should not be denied as procedurally defaulted. (ECF No. 474.) In

22

response, Lisle argues that Respondents waived the procedural default defense with

23

respect to Claim 8A. The Court determines, however, that there was no waiver. (ECF No.

24

293 at 23.) And, at any rate, regardless of whether or not Respondents’ motion to dismiss

25

is read to assert the procedural default defense to all or part of Claim 8A, the Court has

26

discretion to raise the issue sua sponte if the circumstances warrant and the Court gives

27
28

22

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1

the petitioner notice and an opportunity to respond, as the Court has done here. See Boyd

2

v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998).

3

Nevertheless, with respect to the argument that the prosecution committed

4

misconduct by using pronouns such as “we” and “us,” Lisle did raise that claim on his

5

direct appeal, and it is not procedurally defaulted. As the Court reads the Nevada

6

Supreme Court’s rulings on the claim on Lisle’s direct appeal and on the appeal in his first

7

state habeas action, the Court concludes that the Nevada Supreme Court ruled on the

8

claim on its merits, albeit without discussion. (ECF No. 188-5 at 3 n.7 (appeal in first

9

habeas action)). See Lisle, 941 P.2d at 474, 476 (direct appeal). On the appeal in Lisle’s

10

first state habeas action, the Nevada Supreme Court stated that it would not revisit the

11

claim because it was barred by the law of the case doctrine, meaning that the Nevada

12

Supreme Court saw the claim as having been resolved on its merits on the direct appeal.

13

Therefore, the Court addresses this claim on its merits, affording the state court’s denial

14

of relief on the claim the deference required under 28 U.S.C. § 2254(d)(1).

15

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

16

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

17

is reason to think some other explanation for the state court’s decision is more likely.”

18

Harrington, 562 U.S. at 99-100. In such a case, applying § 2254(d)(1), the federal habeas

19

court “must determine what arguments or theories supported or . . . could have supported,

20

the state court’s decision; and then it must ask whether it is possible fairminded jurists

21

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

22

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

23

The Supreme Court precedent that applies here is Darden v. Wainwright, 477 U.S.

24

168 (1986). In Darden, the Supreme Court held that prosecutorial misconduct rises to the

25

level of a constitutional violation where it “so infect[s] the trial with unfairness as to make

26

the resulting conviction a denial of due process.” 477 U.S. at 181. This is obviously a very

27
28

23

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1

general standard. Regarding application of such a general standard under § 2254(d)(1),

2

the Supreme Court has stated:

3
4
5
6
7

Applying a general standard to a specific case can demand a substantial
element of judgment. As a result, evaluating whether a rule application was
unreasonable requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes in case-bycase determinations. Cf. Wright v. West, 505 U.S. 277, 308–309, 112 S.Ct.
2482, 120 L.Ed.2d 225 (1992) (KENNEDY, J., concurring in judgment).
Yarborough v. Alvarado, 541 U.S. 652, 663-64 (2004).

8

As is discussed above in the context of the related claim of ineffective assistance

9

of trial counsel, the prosecution’s use of first-person plural pronouns such as “we” and

10

“us” was not such as to align the prosecution with the jurors to such a degree as to infect

11

Lisle’s trial with unfairness and violate his federal constitutional right to due process of

12

law. See Darden, 477 U.S. at 181. The Court will deny Lisle habeas corpus relief on this

13

part of Claim 8A.

14

Turning to the other prosecutorial misconduct alleged in Claim 8A, and the related

15

claims of ineffective assistance of trial counsel, none of those claims were raised on

16

Lisle’s direct appeal or on the appeal in his first state habeas action, and all of them are

17

subject to dismissal as procedurally defaulted unless Lisle can overcome the procedural

18

default. Lisle does not make any colorable argument that he can overcome the procedural

19

default of these substantive claims, and those will therefore be denied as procedurally

20

defaulted.

21

As for the related claims of ineffective assistance of trial counsel, Lisle asserts that

22

he can overcome the procedural defaults under Martinez v. Ryan, 566 U.S. 1 (2012).

23

In Martinez, the Supreme Court ruled that ineffective assistance of post-conviction

24

counsel may serve as cause to overcome the procedural default of a claim of ineffective

25

assistance of trial counsel. To establish cause and prejudice regarding the procedural

26
27
28

24

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1

default of a claim of ineffective assistance of trial counsel, under Martinez, a petitioner

2

must show that:

3

6

(1) post-conviction counsel performed deficiently; (2) there was a
reasonable probability that, absent the deficient performance, the result of
the post-conviction proceedings would have been different, and (3) the
underlying ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim has some
merit.

7

Ramirez v. Ryan, 937 F.3d 1230, 1242 (9th Cir. 2019) (internal quotation marks omitted).

8

Lisle claims that his trial counsel was ineffective for not objecting, or not requesting a

9

curative instruction, when the prosecutors stated personal opinions in their closing

10

arguments by using phrases such as “I think,” “I believe,” and “I know.” (ECF No. 292 at

11

76-77, 294-95, 304.) Examples of these comments by the prosecutors, cited by Lisle, are

12

the following:

13

-

“Well to shoot anybody—there aren’t any among us, I think, who
would not agree that is a wrongful act. Was that shooting intentional
as this instruction requires? I don’t think after hearing the evidence
that you would consider this to have been an accident, some sort of
mischance.” (ECF No. 198-2 at 20.)

-

“She was a gang counselor in school, talked to hundreds of them, I
think she said.” (Id. at 42.)

-

“I believe Mr. Seaton alluded to it, but you’ve got a car with a broken
window for, quote, unquote, some time; yet it’s all of a sudden in Las
Vegas where it never rains that these people are going to go out and
buy a car cover the day after this murder is committed.” (Id. at 37.)

-

“I think we could see that in the mom when she took the stand.” (ECF
No. 199-3 at 28.)

4
5

14
15
16
17
18
19
20
21
22

(See also ECF Nos. 198-2 at 30, 35, 38, 43, 199-3 at 33, 37.)

23

As a general rule, a prosecutor may not express a personal opinion regarding the

24

guilt of a defendant or regarding the credibility of a witness. See United States v. McKoy,

25

771 F.2d 1207, 1210-11 (9th Cir. 1985). In this case, the prosecutors used the phrases “I

26

think,” “I believe,” and “I know,” in most instances, in reference to their recollection of the

27
28

25

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testimony, or their recollection of what the other prosecutor had said. (ECF Nos. 198-2 at

2

30, 35, 38, 42, 43, 199-3 at 33, 37.) At other times, the prosecutors used such phrases to

3

suggest inferences or conclusions that could be drawn from the evidence. (ECF Nos. 198-

4

2 at 20, 199-3 at 28.) It does not appear that the prosecutors ever used such language to

5

suggest that they had information beyond the testimony or other evidence admitted at

6

trial. And the prosecutors never used such language to express their opinion on the

7

ultimate question of Lisle’s guilt. Moreover, the prosecutors repeatedly used the pronoun

8

“you” when indicating that it was ultimately up to the jurors to decide what inferences and

9

conclusions should be drawn. (ECF No. 198-2 at 26, 27, 29, 30, 32, 33, 46.) While it was

10

arguably improper for the prosecutors to frame arguments in terms of their own beliefs or

11

thoughts, the phrasing of the prosecution’s arguments was nowhere near such as to affect

12

the outcome of Lisle’s trial. This Court determines that the claim of ineffective assistance

13

of counsel for trial counsel’s failure to object to these arguments, or for counsel’s failure

14

to request a curative instruction, is insubstantial. The Court determines that Lisle does

15

not overcome the procedural default of this ineffective assistance of counsel claim under

16

Martinez. The claim will be denied on the ground of procedural default.

17
18
19
20
21
22

Lisle also claims that his trial counsel was ineffective for not taking action when,
during closing argument in the penalty phase of the trial, the prosecutor stated:
So we’re about to talk about what penalties are appropriate for each
of these two individuals. But as we do, I want you to understand that the
death penalty, according to the evidence, is available to both of them. If you
choose, you can give either one of these defendants or both of them the
death penalty. Whether you choose to or not obviously is going to be your
own choice.

23

(ECF Nos. 199-3 at 33, 292 at 76-77, 294, 304.) This argument was not improper. The

24

prosecutor stated what penalties were “available,” “according to the evidence.” The

25

prosecutor did not say which penalty should, in his opinion, be imposed; the prosecutor

26

stated that the decision was the jury’s. This claim of ineffective assistance of trial counsel

27
28

26

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1

is insubstantial. Lisle does not overcome the procedural default of this ineffective

2

assistance of counsel claim under Martinez. This claim, too, will be denied on the ground

3

of procedural default.

4

Lisle also claims that his trial counsel was ineffective for not taking action when

5

one of the prosecutors argued, with regard to a defense argument that a witness was

6

lying, “[t]hat’s ridiculous.” (ECF Nos. 198-3 at 26, 292 at 76-77, 294, 304.) That, however,

7

was an acceptable argument that the inference that the witness was lying should not be

8

drawn. This claim of ineffective assistance of trial counsel is also insubstantial. Lisle does

9

not overcome the procedural default of this claim under Martinez, and it, too, will be

10
11
12

denied on the ground of procedural default.
Therefore, the Court will deny Lisle habeas corpus relief on all of Claim 8A and the
related claims of ineffective assistance of trial counsel in Claims 1 and 8H.

13

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

14

the claims of ineffective assistance of counsel. (ECF No. 337 at 5-6.) Lisle’s motion for

15

evidentiary hearing, though, is presented in a conclusory fashion, without any indication

16

as to what specific factual question would be addressed and what testimony or other

17

evidence would be presented. The prosecutorial misconduct alleged in Claim 8A is in the

18

record, and the Court resolves these claims based on the record without need for an

19

evidentiary hearing. Moreover, Lisle does not make any showing that an evidentiary

20

hearing would be justified under 28 U.S.C. § 2254(e). See 28 U.S.C. § 2254(e)(2); Shinn

21

v. Ramirez, 142 S. Ct. 1718, 1734, 1739-40 (2022). The Court concludes that an

22

evidentiary hearing is unwarranted on these claims.

23
24

Shifting Burden of Proof Regarding Weighing of Aggravating
and Mitigating Circumstances (Claims 1 (in Part), 8B1, 8H (in
Part))

25

In subpart B1 of Claim 8, Lisle claims that, in closing argument in the penalty phase

26

of his trial, the prosecution committed misconduct by making arguments that had the

27
28

2.

27

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1

effect of improperly shifting to him the burden of proof regarding the weighing of

2

aggravating and mitigating circumstances. (ECF No. 292 at 296.) In parts of Claims 1 and

3

8H, Lisle claims that his trial counsel were ineffective for failing to object to this argument

4

and failing to request the court to instruct the jury to disregard it. (Id. at 76-77, 304.)

5

Claim 8B1, in its entirety, is as follows:

6
7
8

The State improperly shifted its burden to prove that mitigating
circumstances did not outweigh aggravating circumstances. In penalty
phase closing argument, the State argued that Mr. Lisle had failed to call
experts to substantiate his evidence of mitigating circumstances:
I don’t remember the psychiatrist who came in and said that
there was some sort of an interrelationship between whatever
acts happened back in Kevin Lisle’s childhood . . .

9
10
11
12

ECF No. 199-3 at 27. Trial counsel objected, but the trial court denied the
objection, stating, “I think that it’s the subject of fair comment by Mr.
Seaton.” Id. at 28. Mr. Seaton continued:
If you are to be asked to believe that there is some sort of
psychological problem, something that arose out of the
childhood abuse, be it physical or mental, certainly there could
be a mental health expert who could explain that to you and
none has come in . . .

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

Id. Consequently, the jury did not consider Mr. Lisle’s abusive childhood as
a mitigating circumstance. See ECF No. 73-3 at 28-29.
(Id. at 296.)
The portion of the prosecution penalty-phase closing argument that is the subject
of this claim, in its full context, is the following:
[MR. SEATON (prosecutor):] The defendant’s physically and
sexually abusive childhood and adolescence. Now, we’ve heard a little bit
about it, thumbtacks and the diaper and getting beat up by the older brother
and things that probably—I don’t know that thumbtacks go on in every family
and I don’t know that they went on in this family. It came only from Mrs.
Lisle, who told us about it. But we didn’t hear anything of great serious
consequence. I don’t remember the psychiatrist who came in and said that
there was some sort of an interrelationship between whatever acts
happened back in Kevin Lisle’s childhood—
MS. BLASKEY [Lisle’s counsel]: Judge, I object. We have absolutely
no burden to bring in a psychiatrist or a professional witness to say that.
Absolutely not.
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2
3
4
5
6
7
8
9
10
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12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

MR. SEATON: I’m not suggesting they do. I’m suggesting what the
evidence isn’t.
THE COURT: The objection is noted for the record. I think that it’s
the subject of fair comment by Mr. Seaton.
MR. SEATON: If you are to be asked to believe that there is some
sort of psychological problem, something that arose out of childhood abuse,
be it physical or mental, certainly there could be a mental health expert who
could explain that to you and none has come in short of the mother. This
was probably a dysfunctional family. I think we could see that in the mom
when she took the stand. But certainly you have not been given anything
on behalf of the Defendant Lisle which would show you that his physically
and sexually abusive childhood and adolescence contributed to what
happened here, even that it ever existed to the extent that Mrs. Lisle would
want you to believe that it existed.
(ECF No. 199-3 at 27-28.)
Lisle asserted this claim on his direct appeal (ECF No. 186-23 at 90, 92-93), and
the Nevada Supreme Court ruled as follows:
One of the mitigating circumstances that Lisle put forth was his
physically and sexually abusive childhood and adolescence. During closing
arguments, the prosecutor commented that the only evidence of this abuse
was from Lisle’s mother. He further stated, “I don’t remember the
psychiatrist who came in and said that there was some sort of an
interrelationship between whatever acts happened back in Kevin Lisle’s
childhood.” The court overruled defendant’s objection, stating it was the
subject of fair comment. The jury did not find Lisle’s abusive childhood as a
mitigating factor. Lisle contends on appeal that the prosecutor’s comment
improperly shifted the burden of proof.
This court held that it is generally improper for a prosecutor to
comment on the defendant’s failure to call witnesses because that shifts the
burden of proof to the defense. Whitney v. State, 112 Nev. 499, 502, 915
P.2d 881, 882 (1996). In Whitney, the prosecutor made numerous remarks
about the defense failing to produce particular fact witnesses. Here, the
prosecutor made only a few general remarks about the lack of expert
witnesses, not a specific person.
In People v. Kelly, 51 Cal.3d 931, 275 Cal.Rptr. 160, 182, 800 P.2d
516, 538 (1990), cert. denied, 502 U.S. 842, 112 S.Ct. 134, 116 L.Ed.2d
101 (1991), during the penalty hearing, the prosecutor commented that the
defendant did not present evidence of his longstanding psychological and
social pathologies or that such pathologies caused his violent nature. The
court held that the prosecutor merely pointed out that the defendant failed
to substantiate his claim that the crime he committed was a result of his
psychological problems. Id.
We conclude that, likewise, the prosecutor in the instant matter was
merely pointing out that Lisle did not substantiate his claim of abuse as a
29

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1
2

mitigator and was contrasting the weight of evidence. Accordingly, the
district court did not err in allowing the comments.
Lisle, 941 P.2d at 477.

3

Under Nevada law, in the penalty phase of a capital case, the defendant has the

4

burden of presenting mitigating evidence. See Sonner v. State, 930 P.2d 707, 717 (Nev.

5

1996). In Sonner, in closing arguments in the penalty phase of the trial, the prosecutor

6

commented on the defendant’s failure to call his mother as a witness; the Nevada

7

Supreme Court rejected the argument that the prosecutor’s comment improperly shifted

8

the burden of proof:

9

12

The harmless comment did not occur during the guilt phase, where the
State has the exclusive burden of proving the defendant guilty beyond a
reasonable doubt. During the penalty phase, the defendant has the burden
of presenting mitigating evidence, if any exists. See Bishop v. State, 95 Nev.
511, 517, 597 P.2d 273, 276 (1979). Therefore, the prosecutor's brief
expression of interest in the mother’s failure to testify could not have
improperly shifted the burden to the defense. This issue is without merit.

13

Id. (emphasis added). Moreover, under Nevada law, the determination whether mitigating

14

circumstances outweigh aggravating circumstances is not considered a factual

15

determination subject to proof but is rather a moral determination to be made by the jury;

16

there is no burden of proof imposed on the prosecution with respect to the weighing of

17

aggravating and mitigating circumstances. See McConnell v State, 212 P.3d 307, 314-15

18

(Nev. 2009); Nunnery v. State, 263 P.3d 235, 250-53 (Nev. 2011).

10
11

19

Lisle’s assertion in Claim 8B1 that “[t]he State improperly shifted its burden to

20

prove that mitigating circumstances did not outweigh aggravating circumstances” (ECF

21

No. 292 at 296) is premised on a misstatement of Nevada law. The State had no “burden

22

to prove that mitigating circumstances did not outweigh aggravating circumstances,” so

23

there was no such burden to be shifted to Lisle.

24

Taking a somewhat different approach in his reply, Lisle argues that the

25

prosecutor’s argument “restricted the jury’s duty to consider all mitigating evidence by

26

arguing that there needed to be a causal nexus between mitigation evidence and the

27
28

30

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offense.” (ECF No. 329 at 50.) In addition, Lisle argues that the prosecutor “told the jury

2

that they should not consider evidence of Lisle’s childhood abuse because Lisle had not

3

presented an expert to testify as to the effect of that abuse.” (Id. at 49 (citing ECF No.

4

199-3 at 27-28).) But the prosecutor said no such thing. (ECF No. 199-3 at 27-28.) The

5

prosecutor pointed out that there was no causal nexus shown, and he pointed out that

6

there was no expert witness testimony presented regarding the abuse Lisle suffered, but

7

he did not say that there had to be either in order for the jury to consider the evidence of

8

Lisle’s childhood abuse as a mitigating circumstance. As the Nevada Supreme Court

9

found, the prosecutor’s comments went only to the nature and strength of Lisle’s

10

mitigating evidence—“we didn’t hear anything of great serious consequence,” the

11

prosecutor said. (Id. at 27.)

12

Lisle bases this part of Claim 8B1 primarily on Abdul-Kabir v. Quarterman, 550

13

U.S. 233 (2007). In Abdul-Kabir, a capital case in Texas, the trial court instructed the jury

14

to make findings on two “special issues”: whether the defendant’s conduct was committed

15

deliberately and with the reasonable expectation it would result in the death of the victim

16

or another, and whether it was probable the defendant would commit future acts of

17

violence constituting a continuing threat to society. See 550 U.S. at 238. Under Texas

18

law, affirmative findings on both of those special issues would result in imposition of the

19

death penalty. See id. at 239. The defendant presented mitigating evidence in the form

20

of lay witness testimony about his unhappy childhood and expert witness testimony about

21

the effects of childhood neglect and abandonment and neurological damage. See id. at

22

239-41. The prosecutor, however, discouraged the jurors from taking the defendant’s

23

mitigating evidence into account, asking them to make findings only on the special issues

24

and to disregard any other considerations. See id. at 241-42, 244 n.5. The jury found in

25

the affirmative on both special issues, and the defendant was sentenced to death.

26
27
28

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The Texas courts denied the defendant relief on his claim that the jury was

2

prevented from giving meaningful consideration to constitutionally relevant mitigating

3

evidence, as did the federal district court and federal court of appeals in the defendant’s

4

federal habeas action. See id. at 242-46. The Supreme Court reversed and remanded,

5

reaffirming a rule established earlier in Penry v. Lynaugh, 492 U.S. 302 (1989), overruled

6

on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002), that special jury instructions

7

are necessary when the jury might not otherwise give meaningful effect to a defendant’s

8

mitigating evidence, or, in the context of the Texas scheme, when the defendant’s

9

evidence may have meaningful relevance to the defendant’s moral culpability beyond the

10

scope of the special issues. See id. at 252-58.

11

In Lisle’s case, there was no Nevada law or jury instruction potentially limiting the

12

jury’s consideration of Lisle’s evidence of abuse in his background as a mitigating

13

circumstance. (ECF No. 186-6 (jury instructions).) Defining “mitigating circumstances,”

14

the jury instructions in this case stated: “Mitigating circumstances are those factors which,

15

while they do not constitute a legal justification or excuse for the commission of the

16

offense in question, may be considered, in the estimation of the jury, in fairness and

17

mercy, as extenuating or reducing the degree or a defendant’s moral culpability.” (Id. at

18

10.) The jury instructions stated further: “The jury is instructed that in determining the

19

appropriate penalties to be imposed in this case that it may consider all evidence

20

introduced and instructions given at both the penalty hearing phase of these proceedings

21

and at the trial of this matter.” (Id. at 18.) And, most importantly with respect to the issue

22

at hand, the instructions stated:

23
24
25
26
27
28

As to the Defendant Lisle, Murder of the first degree may be
mitigated by any of the following circumstances, even though the mitigating
circumstance is not sufficient to constitute a defense or reduce the degree
of the crime:
(1)

The defendant’s physically and sexually abusive childhood
and adolescence.
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2
3
4
5

(2)

The defendant’s special education status.

(3)

The defendant’s vulnerability to the influence of others.

(4)

The youth of the defendant at the time of the crime.

(5)

Any other mitigating circumstances.

Mitigating circumstances do not have to be proven beyond a
reasonable doubt.

6

(Id. at 16 (emphasis added).) So, the jury instructions in Lisle’s case defined “mitigating

7

circumstances” broadly, stated that the jury could consider all evidence admitted in the

8

trial, and specifically stated, without limitation, that Lisle’s physically and sexually abusive

9

childhood and adolescence was a mitigating circumstance to be considered. And, again,

10

the prosecutor did not say that there was any restriction on the jury’s consideration of

11

mitigating evidence presented by Lisle.

12

Lisle cites no authority to the effect that it is prosecutorial misconduct and a

13

violation of the defendant’s constitutional right to due process of law for a prosecutor to

14

point out weaknesses of the defendant’s mitigating evidence. It was reasonable for the

15

Nevada Supreme Court to conclude that “the prosecutor in the instant matter was merely

16

pointing out that Lisle did not substantiate his claim of abuse as a mitigator and was

17

contrasting the weight of evidence,” and that there was no shifting of a burden of proof,

18

and no restriction placed on the jury’s consideration of Lisle’s mitigating evidence. See

19

Lisle, 941 P.2d at 477.

20

Fair-minded jurists could argue that the Nevada Supreme Court correctly ruled that

21

the prosecutor’s argument did not violate Lisle’s federal constitutional rights. See

22

Harrington, 562 U.S. at 101. Lisle has not shown the Nevada Supreme Court’s ruling on

23

this claim to be contrary to, or an unreasonable application of, Abdul-Kabir, or any other

24

Supreme Court precedent. The Court will deny Lisle habeas corpus relief on Claim 8B1.

25
26
27
28

33

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1

Turning to Lisle’s related claim of ineffective assistance of trial counsel, Lisle

2

asserted this ineffective assistance of counsel claim on the appeal in his first state habeas

3

action (ECF No. 188-2 at 45-47), and the Nevada Supreme Court ruled as follows:

4
5
6
7
8

Also during his penalty phase closing argument, the prosecutor
asked the jury to “send a message” to society and other would-be criminals
and commented on Lisle’s failure to substantiate his claim that he suffered
from an abusive childhood. Trial counsel objected, and Lisle challenged the
prosecutor’s statements on direct appeal. We determined that neither
statement was improper. [Footnote: Lisle, 113 Nev. at 705–07, 941 P.2d at
476–77.] Our decisions on direct appeal are law of the case. [Footnote: Hall
v. State, 91 Nev. 314, 535 P.2d 797 (1975).]

9

(ECF No. 188-5 at 5.) This Court understands the Nevada Supreme Court’s ruling to be

10

that, because that court previously held that the prosecutor’s argument was not improper,

11

trial counsel did not perform unreasonably in not taking further action, beyond the

12

objection posed with respect to that argument, and Lisle was not prejudiced. The Nevada

13

Supreme Court’s ruling in this regard was not contrary to, or an unreasonable application

14

of, Strickland or any other Supreme Court precedent. The Court will deny Lisle habeas

15

corpus relief on these parts of Claims 1 and 8H.

16

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

17

the question of whether his counsel was ineffective for failing to object to the prosecutorial

18

misconduct alleged in Claim 8B1. (ECF No. 337 at 5-6.) Here again, however, the alleged

19

prosecutorial misconduct is in the trial record, and the Court determines, based on the

20

record, that the Nevada Supreme Court’s denial of relief on the claim was not objectively

21

unreasonable. Lisle’s motion for evidentiary hearing is presented in a conclusory fashion,

22

without any indication as to what specific factual question would be addressed and what

23

testimony or other evidence would be presented. Moreover, Lisle does not make any

24

showing that an evidentiary hearing would be justified under 28 U.S.C. § 2254(e). See 28

25

U.S.C. § 2254(e)(2); Ramirez, 142 S. Ct. at 1739-40. The Court concludes that an

26

evidentiary hearing is unwarranted on these claims.

27
28

34

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1

3.

Argument that Jury Should Send a Message (Claims 1 (in Part),
8C, 8H (in Part))

2

In Claim 8C, Lisle claims that the prosecution committed misconduct by improperly

3

encouraging the jurors to sentence Mr. Lisle based on passion and prejudice.” (ECF No.

4

292 at 297-99.) Specifically, Lisle contends that the following argument by the prosecutor

5

was such misconduct:

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

Your verdicts here today do a lot of things, one of which is to send a
message—a message to society and it’s incumbent upon you to think about
what that message is going to be. Let me ask you this: Is your message
going to be that if you deal drugs, if you carry guns, if you belong to gangs,
if you conspire to kill and indeed you do go out and kill that we’re going to
give you life with the possibility of parole and one day let you perhaps be
walking the streets a free person at the same time the Lusch[es] are visiting
their son’s grave? Is that the message you want to send? If it is, then be
lenient on poor Jerry Lopez. Or might you prefer to send a message to the
gang-bangers and the dope dealers and the gun carriers and the killers to
be that you’re not going to tolerate this type of action in our society.
(ECF Nos. 292 at 297-98, 199-3 at 45.)
Defense counsel objected to this argument, and the trial court sustained the
objection and ordered the jury to disregard the argument. (ECF No. 199-3 at 45.)
Lisle asserted this claim on his direct appeal (ECF No. 186-23 at 90-91), and the
Nevada Supreme Court ruled as follows:
Lisle’s attorney made an objection, the judge sustained it, and
admonished the jury to disregard those statements. Lisle contends,
nonetheless, on appeal that the statements were patently improper.
This court held, “[T]he relevant inquiry is whether the comments were
so unfair that they deprived the defendant of due process.” Witter v. State,
112 Nev. 908, 923, 921 P.2d 886, 897 (1996), cert. denied, [520 U.S. 1217]
(1997). In Witter, during the penalty phase closing argument, the prosecutor
commented,

24

It is important to send a message to people in the community
and to would[-]be murderers that there are lines that you do
not cross in Nevada; that there is some conduct that simply
will not be tolerated and will be met with a very, very severe
penalty.

25

...

26

What message does this punishment send today? Will we tell
would[-]be murderers, will we tell this community, that you can

23

27
28

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2
3
4
5
6
7
8
9

kill a man, thrust a knife into his skull 16 times, one time
through his skull, 16 times into his body, that you can
perpetrate unspeakable, despicable deeds upon his wife in
her own car and that you, the husband, can drive upon that
crime scene and witness your wife bleeding to death,
struggling for your life, what message does it send to say the
man that perpetrates those crimes can live his life in prison,
can write his family, see his family, speak to his family?
Id. at 924–25, 921 P.2d at 897 (emphasis added). This court held that in a
penalty hearing the comments “properly focus on what would be an
appropriate punishment under the facts and circumstances of this case, as
well as what would be necessary to deter others from committing such a
brutal act. These are entirely proper areas for comment.” Id. at 926, 921
P.2d at 898. As the comments in Witter are substantially similar to the ones
in the present case, we conclude that Lisle’s argument is without merit.
Lisle, 941 P.2d at 476-77.

10

The Nevada Supreme Court ruled that the prosecutor’s argument was not

11

improper as a matter of Nevada state law. With regard to the federal constitutional aspect

12

of the claim, the Nevada Supreme Court denied relief without discussion. Therefore, this

13

Court “must determine what arguments or theories supported or . . . could have

14

supported, the state court’s decision; and then it must ask whether it is possible

15

fairminded jurists could disagree that those arguments or theories are inconsistent with

16

the holding in a prior decision of [the Supreme] Court.” Harrington, 562 U.S. at 102.

17

This Court finds the send-a-message argument to be improper. That argument

18

tended to draw the jury into imposing the death penalty for reasons unrelated to Lisle or

19

the crimes he committed; in other words, the argument tended to turn the jury away from

20

their duty to make “an individualized determination.” See Zant v. Stephens, 462 U.S. 862,

21

879 (1983). However, the question here is not simply whether the prosecutor committed

22

misconduct. As the Supreme Court put it in Darden:

23
24
25
26
27
28

These comments undoubtedly were improper. But as both the
District Court and the original panel of the Court of Appeals (whose opinion
on this issue still stands) recognized, it “is not enough that the prosecutors’
remarks were undesirable or even universally condemned.” Darden v.
Wainwright, [699 F.2d 1031, 1036 (1983)]. The relevant question is whether
the prosecutors’ comments “so infected the trial with unfairness as to make
the resulting conviction a denial of due process.” Donnelly v. DeChristoforo,
416 U.S. 637, [643,] 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Moreover, the
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2
3

appropriate standard of review for such a claim on writ of habeas corpus is
“the narrow one of due process, and not the broad exercise of supervisory
power.” Id., at 642, 94 S.Ct., at 1871.
477 U.S. at 180-81.

4

The prosecutor’s offending argument was not extensive or prominent within the

5

context of the prosecution’s entire closing arguments. The prosecutor did not misstate

6

evidence. The argument was not amplified by any improper jury instruction, but rather

7

was contradicted by instructions to the jury about what they were to consider in choosing

8

a sentence. (ECF No. 186-6 at 8-9 (regarding consideration of aggravating and mitigating

9

circumstances), 18 (“The jury is instructed that in determining the appropriate penalties

10

to be imposed in this case that it may consider all evidence introduced and instructions

11

given at both the penalty hearing phase of these proceedings and at the trial of this

12

matter”). Moreover, Lisle’s counsel objected to the improper argument and the trial court

13

sustained the objection and ordered the jury to disregard it. It is generally presumed that

14

“a jury will follow an instruction to disregard inadmissible evidence.” Greer v. Miller, 483

15

U.S. 756, 766 n.8 (1987) (citations omitted), see also, Doe v. Busby, 661 F.3d 1001, 1017

16

(9th Cir. 2011) (“A habeas court must presume that jurors follow the jury instructions”). In

17

Floyd v. Filson, 949 F.3d 1128 (9th Cir. 2020), the Ninth Circuit Court of Appeals

18

addressed improper prosecution argument much like the send-a-message argument in

19

this case. The Ninth Circuit ruled as follows in that case:

20
21
22
23
24
25
26
27
28

The prosecution also argued during the penalty phase that the death
penalty “sends a message to others in our community, not just that there is
a punishment for a certain crime, but that there is justice.” This statement
inappropriately implies that the jury could sentence Floyd to death to send
a message, rather than making “an individualized determination.” Zant v.
Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The
harm of this statement was mitigated in part by jury instructions that
emphasized the jury’s responsibility to weigh the specific aggravating and
mitigating circumstances of the case. Both the defense and the prosecution
also repeatedly emphasized and relied on the specific details of the crime
at hand, encouraging the jury to make a determination based on the
individual facts of the case. Finally, we agree with the district court’s holding
that, in context, these comments did not “incite the passions of the jurors”
and “did not include any overt instruction to the jury to impose the death
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2
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penalty . . . to send a message to the community.” In light of the other
arguments made at trial, and the strong evidence against Floyd, the
improper argument by the prosecution did not “so infect[ ] the trial with
unfairness as to make the resulting conviction a denial of due process.”
Darden, 477 U.S. at 181, 106 S.Ct. 2464 (quotation marks omitted).

4

Id. at 1151-52. Similarly, in this case, in view of the relatively limited nature of the

5

prosecutor’s improper argument, the instructions given to the jury, and the fact that the

6

trial court sustained the objection and ordered the jury to disregard the argument, the

7

Court concludes that the improper argument did not so infect Lisle’s trial with unfairness

8

as to violate his constitutional right to due process of law.

9

Applying the AEDPA standard, the ultimate question is whether the Nevada

10

Supreme Court’s denial of relief on this claim was an unreasonable application of clearly

11

established Supreme Court precedent, or, stated differently, whether fair-minded jurists

12

could disagree about the correctness of the ruling. See 28 U.S.C. § 2254(d); Harrington,

13

562 U.S. at 101.

14

Lisle cites Viereck v. United States, 318 U.S. 236, 247-48 (1943), for the general

15

proposition that “[a] prosecutor . . . commits misconduct by making comments calculated

16

to arouse the passions or prejudices of the jury.” (ECF No. 329 at 58.) Viereck, though,

17

was not a habeas corpus action involving a state-court conviction and sentence, and there

18

was no analysis in that case of whether the prosecutor’s argument constituted a due

19

process violation. Also, the prosecutor’s argument in Viereck was far different from the

20

argument at issue in this case. The Nevada Supreme Court’s denial of relief on this claim

21

was not contrary to any holding in Viereck for purposes of 28 U.S.C. § 2254(d)(1).

22

Rather, the Supreme Court precedent to be applied under § 2254(d)(1) appears to

23

be Darden, in which, again, the Supreme Court held that prosecutorial misconduct rises

24

to the level of a constitutional violation where it “so infect[s] the trial with unfairness as to

25

make the resulting conviction a denial of due process.” 477 U.S. at 181. Applying the

26

AEDPA standard, the Court concludes that fair-minded jurists could argue that the

27
28

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Nevada Supreme Court’s denial of relief on this claim was consistent with Darden. The

2

Court will deny Lisle habeas corpus relief on this part of Claim 8C.

3

In Claim 8C, Lisle also complains of two other arguments made by the prosecution.

4

He contends that, in making the following argument, the prosecutor “tried to lessen the

5

jurors’ responsibility for voting to impose the death penalty by comparing the judicial

6

sanction of the death penalty with Mr. Lisle’s actions”:

7
8
9
10

The death penalty is something that has been approved not only by our
society but our Legislatures and upheld by the courts. It is a legal way of
doing something that the none of us wants to do. Now, compare and
contrast that with the judge and jury sitting over at the other table. Think
about how he took Justin Lusch out in the desert and shot him in the back.
How he looked Kip Logan in the eye.

11

(ECF Nos. 292 at 299, 199-3 at 39.) And Lisle notes that “Mr. Seaton also went on to

12

argue, ‘[t]ell Mr. Lopez there’s a new gang in town and [it’s] called a jury.’” (ECF Nos. 292

13

at 299, 199-3 at 46.) But on his direct appeal and his appeal in his first state habeas

14

action, Lisle did not claim prosecutorial misconduct with respect to either of these

15

arguments. (ECF Nos. 186-23, 188-2.) Lisle’s claims as to these arguments are therefore

16

subject to denial as procedurally defaulted. In response to the Court’s order to show

17

cause, Lisle made no argument that these parts of Claim 8C are not procedurally

18

defaulted, or that he can overcome their procedural default. (ECF No. 477.) The Court

19

will deny relief on these parts of Claim 8C on the ground that they are procedurally

20

defaulted.

21

In parts of Claims 1 and 8H, Lisle claims that his trial counsel performed

22

ineffectively with respect to the alleged improper prosecution arguments identified in

23

Claim 8C. (ECF No. 292 at 76-77, 304.)

24

On the appeal in his first state habeas action, Lisle asserted the claim that his trial

25

counsel was ineffective in handling the prosecutor’s send-a-message argument (ECF No.

26

188-2 at 42-45), and the Nevada Supreme Court ruled as follows:

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28

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Also during his penalty phase closing argument, the prosecutor asked the
jury to “send a message” to society and other would-be criminals and
commented on Lisle’s failure to substantiate his claim that he suffered from
an abusive childhood. Trial counsel objected, and Lisle challenged the
prosecutor’s statements on direct appeal. We determined that neither
statement was improper. [Footnote: Lisle, 113 Nev. at 705–07, 941 P.2d at
476–77.] Our decisions on direct appeal are law of the case. [Footnote: Hall
v. State, 91 Nev. 314, 535 P.2d 797 (1975).]

1
2
3
4
5

(ECF No. 188-5 at 5.)

6

Given that the Nevada Supreme Court determined that the prosecutor’s send-a-

7

message argument was not improper under Nevada law, given that Lisle does not cite

8

any authority to support his claim that the argument violated his federal constitutional right

9

to due process of law, and recognizing that trial counsel did in fact object to the argument

10

and the trial court ordered the jury to disregard it, the Court determines that the Nevada

11

Supreme Court’s ruling on this ineffective assistance of counsel claim was not objectively

12

unreasonable. The Court will deny Lisle habeas corpus relief on this part of Claims 1 and

13

8H.

14

As for Lisle’s claim that his trial counsel were ineffective in handling the other

15

allegedly improper arguments identified in Claim 8C, Lisle did not make any such claim

16

on the appeal in his first state habeas action. (ECF No. 188-2.) And while these comments

17

of the prosecutor were improper, Lisle has not shown that they were so egregious that

18

objection by counsel or a curative instruction would have raised any reasonable

19

probability of a different result at trial. The Court determines that these claims of

20

ineffective assistance of counsel are insubstantial. Lisle does not overcome the

21

procedural default of these ineffective assistance of counsel claims under Martinez.

22

These claims will be denied on the ground of procedural default.

23

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

24

the question whether his counsel was ineffective for failing to object to the prosecutorial

25

misconduct alleged in Claim 8C. (ECF No. 337 at 5-6.) Again though, Lisle’s motion for

26

evidentiary hearing is presented in a conclusory fashion, without any indication as to what

27
28

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specific factual question would be addressed and what testimony or other evidence would

2

be presented, and the Court resolves these claims of ineffective assistance of counsel

3

without need for an evidentiary hearing. Also, here again, Lisle does not make any

4

showing that an evidentiary hearing would be justified under 28 U.S.C. § 2254(e). See 28

5

U.S.C. § 2254(e)(2); Ramirez, 142 S. Ct. at 1739-40. The Court concludes that an

6

evidentiary hearing is unwarranted on these claims.

7

4.

8

Argument that Lisle Would Present Danger in the Future (Claims
1 (in Part), 8E, 8H (in Part))

9

In Claim 8E, Lisle claims that, in closing argument in the penalty phase of his trial,

10

the prosecution committed misconduct by arguing that the death penalty was necessary

11

to prevent Mr. Lisle from killing again. (ECF No. 292 at 301-03.) In Claim 8E itself, and in

12

parts of Claims 1 and 8H, Lisle asserts that his trial counsel were ineffective in their

13

handling of this misconduct. (Id. at 76-77, 303, 304.)

14

Lisle claims that the prosecutor committed misconduct in the following portion of

15

his closing argument, and it rendered his trial unfair and violated his constitutional right to

16

due process of law:

17
18
19
20
21
22
23
24
25
26
27
28

MR. SEATON [prosecutor]: How he put a .357 caliber bullet into the
brain of Kip Logan. Think about the difference between the methodology of
the death penalty. His death penalty and your death penalty—society’s
[death] penalty. He has the capacity that I asked all of you about. He has
demonstrated it willingly and twice and he has the capacity to kill again. And
I submit to you the question is not will he but when, if given the opportunity.
Life with the possibility of parole is laughable as it pertains to Kevin
Lisle. Life without the possibility of parole is something which should not be
considered. He is going to come into contact with guards in the prison, with
inmates. Neither of those groups deserve to die.
MR. BAKER [Lisle’s counsel]: Objection, Your Honor. There’s been
no evidence of any violence by Kevin Lisle in custody.
THE COURT: Objection is sustained.
MR. SEATON: He has the capacity to kill again and the only way—
the only way to make sure that he doesn’t is to sentence him to death. And
think about this for just a moment because we are talking about the
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character of a person that you’re about to sentence. Think about the
character of a person who has the ability to pick up a loaded gun knowing
its potential and can point it—that empty barrel at the head of another or the
back of another human being and who can squeeze that trigger knowing
that a bullet is going to come out and do unimaginable damage. That is a
special kind of a human being. That is someone you don’t come into contact
with in your everyday life. Thank God. Think of who you have been sitting
in this courtroom with for the last couple of weeks. A month ago could you
have imagined [ever] being in the company of such people?
(ECF Nos. 292 at 301-02, 199-3 at 39-40.)

7

Lisle did not assert this claim on his direct appeal. (ECF No. 186-23.) However, on

8

the appeal in his first state habeas action, Lisle arguably asserted both the substantive

9

prosecutorial misconduct claim and the related ineffective assistance of counsel claim.

10
11
12
13
14
15
16
17
18
19
20
21

(ECF No. 188-2 at 41-42.) The Nevada Supreme Court appears to have ruled on both:
As he discussed Lisle’s possible punishments, the prosecutor
encouraged the jury to impose a sentence of death. The prosecutor also
stated that a death sentence was the only way to ensure that Lisle cannot
kill again. Lisle contends that the prosecutor’s statements were improper
because they misled the jury to believe that death is the presumed sentence
and assumed that Lisle would pose a future danger to society. We disagree.
The prosecutor did not imply that a death sentence is the presumed
sentence. Instead, the prosecutor properly asked the jury to return a
sentence of death. [Footnote: See Williams v. State, 113 Nev. 1008, 1022,
945 P.2d 438, 446 (1997) overruled on other grounds by Byford v. State,
116 Nev. 215, 994 P.2d 700 (2000); Domingues v. State, 112 Nev. 683,
698–99, 917 P.2d 1364, 1375 (1996).] Also, a prosecutor may properly base
that request on the defendant’s possible future dangerousness. [Footnote:
See, e.g., Harte v. State, 116 Nev. 1054, 1071–72, 13 P.3d 420, 431 (2000);
Redmen v. State, 108 Nev. 227, 828 P.2d 395 (1992), overruled on other
grounds by Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995); Riley v.
State, 107 Nev. 205, 808 P.2d 551 (1991).] Thus, the prosecutor’s
statements were not improper, and trial counsel was not ineffective for not
challenging them.
(ECF No. 188-5 at 4-5.)

22

In their answer, with respect to the substantive claim in Claim 8E, Respondents

23

apply the AEDPA standard, citing Darden as the applicable Supreme Court precedent.

24

(ECF No. 318 at 52-54.) In his reply, Lisle also treats the substantive claim as exhausted

25

on the appeal in his first state habeas action, and he applies the AEDPA standard as well,

26
27
28

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citing no Supreme Court authority beyond Darden for his claim that the prosecutor’s

2

argument violated his federal constitutional rights. (ECF No. 329 at 68-72.)

3

The Nevada Supreme Court ruled that the prosecutor’s argument was not

4

improper under state law. As to the federal constitutional aspect of the claim, the Nevada

5

Supreme Court denied relief, but did not specifically discuss that aspect of the claim. (ECF

6

No. 188-5 at 4-5.)

7

The Nevada Supreme Court’s denial of relief on this claim was not an

8

unreasonable application of Darden or any other Supreme Court precedent. Lisle has not

9

identified any applicable Supreme Court authority for his claim beyond the general

10

standard announced in Darden. Respondents, on the other hand, cite Simmons v. South

11

Carolina, 512 U.S. 154 (1994). In that case, the Supreme Court stated that future

12

dangerousness is an appropriate consideration for the jury in the sentencing phase of a

13

capital trial. See Simmons, 512 U.S. at 163, 165 n.5. Therefore, the Supreme Court

14

authority specific to the kind of alleged prosecutorial argument at issue in Claim 8E is

15

contrary to Lisle’s claim. In the sentencing phase of a capital case, prosecutorial argument

16

about the defendant’s potential for future violence is not improper. And further, applying

17

Darden, the Court determines that fair-minded jurists could argue that Lisle’s trial was not

18

rendered unfair, and his federal constitutional rights were not violated, by the prosecutor’s

19

argument that Lisle would present a danger in the future. The Court will deny Lisle relief

20

on Claim 8E.

21

Turning to the related claim of ineffective assistance of trial counsel, because the

22

prosecutor’s argument was not improper, the Nevada Supreme Court’s ruling that Lisle’s

23

trial counsel was not ineffective for not taking further action regarding the prosecutor’s

24

argument, beyond the objection trial counsel did make, was not unreasonable. The Court

25

will deny Lisle habeas corpus relief on the ineffective assistance of counsel claims in

26

Claim 8E and parts of Claims 1 and 8H.

27
28

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Lisle requests an evidentiary hearing on the question of whether his counsel was

2

ineffective. (ECF No. 337 at 5-6.) Again, though, the alleged prosecutorial misconduct is

3

in the trial record, and the Court determines, based on the record, that it was not

4

unreasonable for Lisle’s counsel to not take any action beyond the objection. Moreover,

5

the Court determines, from the record, that Lisle was not prejudiced by his counsel not

6

taking any further action as to the prosecutor’s argument. Lisle’s motion for evidentiary

7

hearing is presented in a conclusory fashion, without any indication as to what specific

8

factual question would be addressed and what testimony or other evidence would be

9

presented. Lisle also does not make any showing that an evidentiary hearing would be

10

justified under 28 U.S.C. § 2254(e). See 28 U.S.C. § 2254(e)(2); Ramirez, 142 S. Ct. at

11

1739-40. The Court concludes that an evidentiary hearing is unwarranted on these

12

claims.

13
14
15

5.

Cumulative Error from Prosecutorial Misconduct (Claim 8G)

In Claim 8G, Lisle claims that the alleged prosecutorial misconduct should be
considered both singly and cumulatively. (ECF No. 292 at 303-04.)

16

As to the cumulative consideration of such claims, “[t]he Supreme Court has clearly

17

established that the combined effect of multiple trial court errors violates due process

18

where it renders the resulting criminal trial fundamentally unfair.” Parle v. Runnels, 505

19

F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410 U.S. 284, 298, 302-03

20

(1973)). Thus, “[t]he cumulative effect of multiple errors can violate due process even

21

where no single error rises to the level of a constitutional violation or would independently

22

warrant reversal.” Id. To evaluate a due process challenge based on the cumulative effect

23

of multiple trial errors, “a reviewing court must determine the relative harm caused by the

24

errors.” Id. at 927-28.

25

The Court determines that whether considered individually or cumulatively, the

26

allegedly improper arguments that Lisle raised in claims 8A, 8B1, 8C and 8E were not

27
28

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such as to “infect the trial with unfairness as to make the resulting conviction a denial of

2

due process.” Darden, 477 U.S. at 181. The Court will deny Lisle habeas corpus relief on

3

Claim 8G.

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

C.

Aggravating Circumstances (Claims 2A and 2B)

The jury found two statutory aggravating circumstances, supporting imposition of
the death penalty: (1) murder committed while engaged in the commission of, or attempt
to commit, first-degree kidnapping, and (2) murder committed by a person previously
convicted of another murder. (ECF No. 186-8.) In Claim 2A, Lisle claims that the first of
these, the kidnapping aggravator, is unconstitutional as applied in this case. (ECF No.
292 at 81-83.) In Claim 2B, Lisle claims that the other aggravator found by the jury—that
Lisle had been previously convicted of another murder—is unconstitutional as applied in
this case. (Id. at 83-243.)
In ruling on Respondents’ motion to dismiss, the Court determined that Claims 2A
and 2B are potentially barred by the statute of limitations and the procedural default
doctrine, but the Court deferred ruling on those issues, because Lisle argued he could
overcome the statute of limitations and procedural default bars by showing he is actually
innocent of the death penalty, and because the issue of his actual innocence of the death
penalty is intertwined with the merits of the claims. (ECF No. 317 at 29-30).
A habeas petitioner can overcome a procedural default or a statute of limitations
bar, allowing consideration of the merits of the otherwise barred claim, by showing that
he is actually innocent. See Schlup v. Delo, 513 U.S. 298, 324-29 (1995); see also
McQuiggin v. Perkins, 569 U.S. 383, 399 (2013). To demonstrate actual innocence to
overcome a procedural bar, a petitioner must present “new reliable evidence—whether it
be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Schlup, 513 U.S. at 324. By means of that
evidence, and in light of all the evidence in the case, the petitioner “must show that it is
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more likely than not that no reasonable juror would have convicted him in the light of the

2

new evidence.” Id. at 327, 329 (“[A] petitioner does not meet the threshold requirement

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

at 317.

15

The Court determines that Lisle does not show either aggravator to be invalid, or

16

that he is actually innocent of the death penalty. Therefore, the Court denies Claims 2A

17

and 2B as procedurally defaulted and barred by the statute of limitations.

18
19
20
21
22
23
24
25
26
27
28

1.

The Kidnapping Aggravator (Claim 2A)

In Claim 2A, Lisle claims, as follows, that the kidnapping aggravator is
unconstitutional as applied to him:
The jury was instructed that the definition of first degree kidnapping required
that the defendant kidnap the victim “for the purpose of killing the person or
inflicting substantial bodily harm upon him . . .” See [ECF No. 73-4] at 50.
At the penalty phase, the State emphasized that the kidnapping of the victim
Lusch was committed in order to perpetrate the killing. See ECF No. 199-3
at 26; ECF No. 199-4 at 11-12.
The first-degree kidnapping charge is constitutionally inadequate
because it is inconsistent with the murder conviction and the murder
conviction it was being used to aggravate. If the purpose of the kidnapping
was to commit murder, the murder cannot have occurred in the commission
of the kidnapping. That is the murder cannot serve as a predicate to the
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10
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15
16
17
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19
20
21
22
23
24
25
26
27
28

kidnapping and then the murder said to have been aggravated by occurring
in the commission of the murder [sic - “kidnapping” may have been intended
here].
The jury was instructed that “Kidnapping in the First Degree is a
specific intent crime.” ECF No. 73-4 at 51. It was necessary then, that the
State prove that Mr. Lisle specifically intended to kidnap Mr. Lusch for the
purpose of killing him. The State emphasized that the evidence
demonstrated that the kidnaping was committed only to facilitate the
murder: “This jury has found that there was a conspiracy beforehand
indicates that these two defendants intended to kill Justin Lusch prior to the
time they went over there . . . They went over there with the intent to murder
Justin Lusch, and that’s what ultimately took place . . .” See ECF No. 198-5
at 116–117. Thus, instead of the murder being committed in the [course] of
a [kidnapping]; this was a kidnaping committed in the course of a murder[.]
Because the prosecution’s theory was that there was no independent
purpose to the kidnaping and it was solely intended to facilitate the murder,
allowing the kidnaping to be used as an aggravating circumstance to the
murder violates the constitutional guarantees of due process of law by
disregarding the constitutionally-mandated rule of lenity in interpreting penal
statutes and by imposing liability for the aggravating factor that is
unconstitutionally vague [ ]. The felony-murder factor must therefore be
vacated.
Furthermore, the use of kidnapping to prove murder and murder to
prove kidnapping means that the aggravating circumstance of kidnapping
does not rationally narrow the class of death-eligible offenders. Instead, all
murders that involve holding a victim or moving a victim (beyond what is
necessary for the killing) prior to the homicide would make someone deatheligible.
(ECF No. 292 at 81-83.)
Lisle did not assert this claim on his direct appeal or on the appeal in his first state
habeas action. (ECF Nos. 186-23, 188-2.) However, Lisle did assert this claim on the
appeal in his second state habeas action, and the Nevada Supreme Court denied relief
on the claim as follows:
Lisle argues that the felony aggravating circumstance based on
kidnapping is invalid because it is premised on the felony-murder rule but
the State’s theory in this case is inconsistent with the rationale for the felonymurder rule--“‘to deter dangerous conduct by punishing as a first degree
murder a homicide resulting from dangerous conduct in the perpetration of
a felony, even if the defendant did not intend to kill.’” [Nay v. State, 123 Nev.
326, 332, 167 P.3d 430, 434 (2007) (quoting State v. Allen, 875 A.2d 724,
729 (Md. 2005)); Payne v. State, 81 Nev. 503, 506, 406 P.2d 922, 924
(1965); see People v. Washington, 402 P.2d 130, 133 (Cal. 1965).
According to Lisle, the State’s theory at trial was that he kidnapped Lusch
to facilitate the murder and therefore the murder did not occur “in the
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commission of” a kidnapping; rather, the kidnapping occurred in the
commission of the homicide.
Relying primarily on this court’s decision in Nay, Lisle suggests that
this aggravating circumstance is not applicable when the homicide is the
purpose behind committing the felony. In Nay, we held that a felony-murder
conviction cannot be based on a felony that was committed as an
afterthought to homicide. 123 Nev. at 333, 167 P.3d at 435. We reasoned
that basing a felony-murder conviction on an afterthought felony would not
be consistent with the two rationales supporting the felony-murder rule—
that the rule’s purpose is to deter people from committing dangerous
felonies and that the intent to commit the felony provides the malice for the
murder—because those rationales hinge on the perpetrator having the
intent to commit the felony before or during the killing. Id. at 332-33, 167
P.3d at 434–35. Although Nay addresses the felony-murder statute, not the
felony aggravating circumstance set forth in NRS 200.033(4), the statutes
have similar language: felony murder is a murder “[c]ommitted in the
perpetration or attempted perpetration of” certain enumerated felonies,
NRS 200.030(1)(b), and the felony aggravating circumstance applies when
a murder is committed “in the commission of, or an attempt to commit or
flight after committing or attempting to commit” certain enumerated felonies,
including kidnapping, NRS 200.033(4). Based on this language, Lisle tries
to extend the reasoning in Nay to support his argument.
We reject Lisle’s efforts to extend Nay in the manner he suggests for
two reasons. First, Nay focuses on the felony-murder rule’s purpose, but
the purposes for the felony-murder rule and the felony aggravating
circumstance are not the same. The felony-murder rule’s purpose is “to
deter dangerous conduct by punishing as a first degree murder a homicide
resulting from dangerous conduct in the perpetration of a felony,” Nay, 123
Nev. at 332, 167 P.3d at 34, (internal quotations omitted), while aggravating
circumstances determine which defendants convicted of first-degree
murder are eligible for the death penalty, NRS 175.554(3); NRS
200.030(4)(a). Second, Nay is focused on the timing of the intent to commit
the felony (before or during the murder as opposed to an afterthought),
whereas Lisle’s argument is more about the nature of the kidnapping in this
case—that the murder provided the specific intent for the kidnapping—
rather than the timing of that intent because clearly Lisle intended to commit
the murder at the time the kidnapping occurred. For these reasons, the
analysis in Nay does not carry over to the felony aggravating circumstance.
At its core, Lisle’s argument is that the murder did not occur in the
commission of the kidnapping; instead, the kidnapping occurred in the
commission of the murder. We disagree. The felony aggravating
circumstance applies when the murder “was committed while the person
was engaged . . . in the commission of . . . any . . . kidnapping in the first
degree.” NRS 200.033(4). And the kidnapping statute provides that
kidnapping is in the first degree when a person “willfully seizes, confines,
inveigles, entices, decoys, abducts, conceals, kidnaps or carries away a
person by any means whatsoever with the intent to hold or detain, or who
holds or detains, the person . . . for the purpose of killing the person.” NRS
200.310(1). Here, the first-degree kidnapping is based on evidence that
Lisle lured Lusch to the desert with the promise of a drug deal so that he
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could kill Lusch without witnesses. While the kidnapping clearly facilitated
the killing and was part of the premeditated plan to kill Lusch, the kidnapping
was a separate offense, see Pascua v. State, 122 Nev. 1001, 1006, 145
P.3d 1031, 1034 (2006), that was ongoing until Lusch was killed. Therefore
the killing occurred “in the commission of” the kidnapping. The kidnapping
is not incidental to the murder and the facts clearly established that Lisle
was engaged in the commission of kidnapping in the first-degree when he
killed Lusch, thereby satisfying the elements for the felony aggravating
circumstance. NRS 200.033(4); NRS 200.310; NRS 200.320(1); see also
Bridges v. State, 116 Nev. 752, 765, 6 P.3d 1000, 1009 (2000). [Footnote
set forth below.] We therefore conclude that the felony aggravating
circumstance is not invalid on the ground Lisle advances.

7

(ECF No. 193-4 at 7-10.) In a footnote, the Nevada Supreme Court addressed the federal

8

constitutional aspects of the claim:

1
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5

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Lisle contends that NRS 200.033(4) is unconstitutionally vague and
that imposing death based on this statute would violate due process and
the constitutional rule of lenity. NRS 200.033(4) clearly provides a person
of ordinary intelligence fair notice that if one engages in the commission of
a kidnapping in the first-degree when committing a murder, the murder may
be aggravated. See Holder v. Humanitarian Law Project, 561 U.S. [1], [18],
130 S.Ct. 2705, 2718 (2010); accord State v. Casteneda, 126 Nev. [478],
[481], 245 P.3d 550, 553 (2010). Because NRS 200.033(4) is unambiguous,
the rule of lenity has no bearing on the construction of this statute. State v.
Lucero, 127 Nev. [92], [99], 249 P.3d 1226, 1230 (2011).

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(Id. at 10 n.1.) The Nevada Supreme Court’s ruling was not an objectively unreasonable

16

application of United States Supreme Court precedent.

17

As the Court understands Lisle’s argument, it is that the kidnapping aggravator is

18

unconstitutionally vague and ambiguous, and that it fails to narrow the class of individuals

19

subject to the death penalty. (ECF Nos. 292 at 81-83, 329 at 17-26.) The Court finds that

20

argument to be meritless. The Court agrees with the Nevada Supreme Court that Lisle

21

makes no showing that the kidnapping aggravator is unconstitutionally vague and

22

ambiguous or that it fails to narrow the class of individuals subject to the death penalty.

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Lisle does not show the kidnapping aggravator to be invalid, and he does not show that

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he is actually innocent of the death penalty. The Court will therefore deny Lisle’s claim in

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Claim 2A as procedurally defaulted and barred by the statute of limitations.

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2.

The Previously Convicted of Another Murder Aggravator
(Claim 2B)

In Claim 2B, Lisle claims that the other aggravator found by the jury—that Lisle
had been previously convicted of another murder—was unconstitutional as applied in this
case. (ECF No. 292 at 83-243.) Lisle makes two separate arguments in support of this
claim. First, Lisle argues that at the time of his conviction, under the statute establishing
the aggravator, in order for it to apply, it was necessary that the accused was convicted
of the other murder before the murder for which the aggravator is being sought; in this
case, Lisle was not yet convicted of the Logan murder (in fact, the Logan murder had not
yet occurred) when Lusch was killed. (Id. at 83-84.) Second, Lisle asserts that he is
actually innocent of the Logan murder and that his conviction for the Logan murder was
otherwise obtained in violation of his constitutional rights, and that, therefore, the Logan
murder conviction cannot stand as a basis for aggravation of his sentence for the Lusch
murder. (Id. at 87-243.)
In 1985, in Gallego v. State, 711 P.2d 856 (Nev. 1985), the Nevada Supreme Court
construed NRS § 200.033(2), the statute establishing the prior-murder-conviction
aggravator, and ruled that murder convictions entered after the murder at hand, but before
the sentencing—as in Lisle’s case—qualify as aggravating circumstances. The Nevada
Supreme Court’s holding in Gallego was as follows:
Gallego objected to the admission of two murder convictions
occurring in Contra Costa County Superior Court of California in 1983 as an
aggravating circumstance under NRS 200.033(2). Since the two murders
involved in the California judgment were committed subsequent to the
murders in the instant case, Gallego contends the former killings do not
qualify as an aggravating circumstance under the statute.
This issue is one of first impression in the State of Nevada. NRS
200.033(2) provides as follows:

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The only circumstances by which murder of the first
degree may be aggravated are:

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2. The murder was committed by a person who was
previously convicted of another murder or of a felony involving
the use or threat of violence to the person of another.
Gallego argues that the statute simply provides that a person who is
convicted of murder and thereafter commits another murder will have the
second offense aggravated by the first. Thus, Gallego concludes that since
the June 1983 California convictions did not precede the 1980 killings of
Redican and Twiggs, the admission of the former offenses as a statutory
aggravating circumstance was error. Gallego is wrong.
Aggravating circumstances, as defined by the statute, provide
direction to the sentencing authority as it considers an appropriate
punishment for the defendant. The statute was never intended to operate
on the vagaries of conviction sequences. Instead, the focal point is the time
of sentencing. The sentencing panel is entitled to consider all relevant
aspects of the defendant’s criminal background prior to rendering sentence.
The fact that Gallego murdered two victims after killing the two victims in
the instant case is not relevant to the dictates of the statute. The clear
language of the statute required only that Gallego stood convicted of the
California murders at the time of the introduction of that evidence in the
penalty phase of the present proceeding. It would be both absurd and
counterproductive for this Court to construe the plain language of the statute
so as to exclude convictions of murders or crimes of violence occurring after
the primary offense but prior to the penalty phase of a defendant’s trial. This
we refuse to do. The trial court did not err.
Gallego, 711 P.2d at 863-64.

15

The language of the statute construed in Gallego was identical to the language of

16

the statute at the time of Lisle’s trial. (ECF No. 193-4 at 10 n.2.) The Nevada Supreme

17

Court decided Gallego on December 20, 1985, more than eight years before the Lusch

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and Logan killings.

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On the appeal in Lisle’s second state habeas action, applying its holding in
Gallego, the Nevada Supreme Court rejected Lisle’s claim, as follows:
Lisle argues that the murder conviction related to Logan’s death does
not qualify as an aggravating circumstance under the version of NRS
200.033(2) in place during his trial because the Logan conviction did not
precede the Lusch murder. [Footnote: At the time of Lisle’s original penalty
hearing, NRS 200.033(2) provided that first-degree murder may be
aggravated if “[t]he murder was committed by a person who was previously
convicted of another murder or of a felony involving the use or threat of
violence to the person of another.” 1993 Nev. Stat., ch. 44, § 1, at 76.] He
acknowledges that this argument was rejected in Gallego v. State, 101 Nev.
782, 792–93, 711 P.2d 856, 863–64 (1985); see also Leonard v. State, 117
Nev. 53, 82, 17 P.3d 397, 415 (2001), but contends that this court failed to
provide any statutory construction analysis, “including the application of the
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rule of lenity, which is constitutionally required.” We disagree. In Gallego,
this court concluded that NRS 200.033(2)’s plain language only required
that the defendant has been convicted of the other murders at the time of
the penalty hearing. Gallego, 101 Nev. at 792–93, 711 P.2d at 863–64.
Since Gallego, this court has consistently rejected challenges similar to
Lisle’s, reaffirming its reasoning in Gallego. E.g., [Leonard v. State, 117
Nev. 53, 82, 17 P.3d 397, 415 (2001)]; Calambro v. State, 114 Nev. 106,
109–10, 952 P.2d 946, 948 (1998); Emil v. State, 105 Nev. 858, 865, 784
P.2d 956, 960 (1989); Crump v. State, 102 Nev. 158, 162, 716 P.2d 1387,
1389 (1986). As Gallego relied on the plain language of NRS 200.0033(2),
Lisle’s argument that the statute is ambiguous is without merit and the rule
of lenity does not factor into interpretation of that statute. [State v. Lucero,
127 Nev. 92, 99, 249 P.3d 1226, 1230 (2011)]; Moore v. State, 122 Nev.
27, 32, 126 P.3d 508, 511 (2006). [Footnote omitted.]
(ECF No. 193-4 at 10-11.)

9

In this case, Lisle argues, as he did before the Nevada Supreme Court, that the

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Nevada Supreme Court erred in Gallego in not properly applying the rule of lenity in

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interpreting NRS § 200.033(2). However, a state court’s interpretation of state law is

12

authoritative and binds the federal habeas court. See Bradshaw v. Richey, 546 U.S. 74,

13

76 (2005) (“We have repeatedly held that a state court’s interpretation of state law,

14

including one announced on direct appeal of the challenged conviction, binds a federal

15

court sitting in habeas corpus”) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991));

16

Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). In Gallego, in interpreting NRS §

17

200.033(2), the Nevada Supreme Court held that the rule of lenity did not apply because

18

the statute was unambiguous, and the Nevada Supreme Court reaffirmed that holding in

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Lisle’s case. In both cases, that was an interpretation of a Nevada statute by the Nevada

20

Supreme Court, and this Court is bound by that interpretation.

21

Lisle argues that the Nevada Supreme Court was constitutionally required in

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Gallego to apply the rule of lenity in interpreting NRS § 200.033(2), and because that

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court did not do so, Lisle’s federal constitutional rights were violated by application of the

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prior-murder-conviction aggravator in his case more than eight years later. Lisle, however,

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cites no authority supporting that proposition, and this Court finds this argument to be

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without merit. The Nevada Supreme Court reasonably ruled that its interpretation of NRS

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§ 200.033(2) in Gallego did not render his conviction and sentence for the Lusch murder

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unconstitutional.

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Lisle’s other argument that the prior-murder-conviction aggravator was

4

unconstitutionally applied is that he is actually innocent of the Logan murder and that his

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conviction for the Logan murder was otherwise obtained in violation of his constitutional

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rights. (ECF No. 292 at 87-243.)

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The Nevada Supreme Court addressed this argument, as well, on the appeal in
Lisle’s second state habeas action, and rejected it as follows:
Lisle argues that he is actually innocent of Logan’s murder because
the persons who testified against him did so to secure lighter sentences and
that there was insufficient evidence to corroborate their testimony. On this
basis, he asserts that he is actually innocent of Logan’s murder and
therefore the prior murder aggravating circumstance is invalid. We rejected
Lisle’s challenge to his conviction for Logan’s murder. Lisle v. State, 113
Nev. 540, 555, 937 P.2d 473, 482 (1997), clarified on denial of rehearing,
114 Nev. 221, 954 P.2d 744 (1998). Lisle has presented nothing here to
alter that decision, and we therefore conclude that this attempt to invalidate
the prior-murder aggravating circumstance fails.
(ECF No. 193-4 at 11 n.3.)

16

As in state court, so too here, Lisle challenged his conviction for the Logan murder

17

in a separate habeas action in this Court, Case No. 2:03-cv-1005-JCM-DJA. The Court

18

takes judicial notice of the proceedings in Case No. 2:03-cv-1005-JCM-DJA. In that case,

19

on September 8, 2021, the Court denied Lisle’s petition and entered judgment in favor of

20

the respondents. (ECF Nos. 292, 293.) Lisle filed a motion to alter or amend the judgment

21

under Fed. R. Civ. P. 59(e), and the Court denied that motion. (ECF Nos. 295, 311.) Lisle

22

has now appealed (ECF Nos. 297, 312), and the case is on appeal in the Ninth Circuit

23

Court of Appeals.

24

All the challenges to Lisle’s conviction for the Logan murder that he asserts in

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Claim 2B in this case were asserted in his habeas petition in Case No. 2:03-cv-1005-

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JCM-DJA. (Compare ECF No. 292 at 87-243 with ECF No. 197 in Case No. 2:03-cv-

27
28

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1005-JCM-DJA.) Those claims have been fully litigated and resolved in favor of the

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respondents in Case No. 2:03-cv-1005-JCM-DJA. In that case, the court addressed

3

Lisle’s claim that he is actually innocent of the Logan murder, and the court denied that

4

claim, both as a means of overcoming the statute of limitations and procedural default

5

bars in that case and as a separate claim. (ECF No. 260 at 15-18, 28-30 (Case No. 2:03-

6

cv-1005-JCM-DJA).) The court also denied relief on all of Lisle’s other claims that his

7

conviction for the Logan murder violated his federal constitutional rights. (ECF Nos. 260,

8

292 (Case No. 2:03-cv-1005-JCM-DJA).) The Court will not revisit those claims here. In

9

view of the proceedings and rulings of this court in Case No. 2:03-cv-1005-JCM-DJA,

10

Lisle’s challenges to his conviction for the Logan murder, as bases for Claim 2B, fail.

11

Lisle does not show the prior-murder-conviction aggravator to be invalid, and he

12

does not show that he is actually innocent of the death penalty. The Court will therefore

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deny Lisle’s claim in Claim 2B as procedurally defaulted and barred by the statute of

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limitations.

15

D.

16

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

17

the trial court erroneously failed to sever the charge of being an ex-felon in possession of

18

a firearm from the charges of conspiracy to commit murder and murder with use of a

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deadly weapon. (ECF No. 292 at 311.) Lisle’s claim is as follows:

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Joinder of Charges (Claim 10)

Prior to trial, Mr. Lisle’s trial counsel filed a motion to sever Count III [exfelon in possession of a firearm] from Counts I and II [conspiracy to commit
murder and murder with use of a deadly weapon]. Mr. Lisle’s attorneys
argued that in order for the State to prove Count III, they necessarily had to
inform the jury that he had previously been convicted of the felony of
conspiring to sell a controlled substance, unduly prejudicing Mr. Lisle. ECF
No. 194-1 at 3–4; see also ECF No. 130-1 at 1–8[.] Had Mr. Lisle been
charged solely with Counts I and II, evidence regarding his prior conviction
for conspiring to sell a controlled substance would not have been
admissible. The trial court improperly denied the motion to sever the
charges. ECF No. 194-1 at 4.
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The Constitution forbids the general use of prior criminal acts in the
guilt phase. Leavitt v. Arave, 383 F.3d 809, 829 (9th Cir. 2004). Evidence
of prior crimes unduly burdens a jury with the prejudicial inference that an
individual has the general character to commit the instant crime and
undermines the fundamental safeguard of the presumption of innocence.
Id.; see also McKinney v. Rees, 993 F.2d 1378, 1380 (9th Cir. 1993);
Jammal v. Van de Kamp, 926 F.2d 919, 929–20 & n.2 (9th Cir. 1992)). By
relieving the State of proving essential elements of its charges against Mr.
Lisle, the trial court’s failure to sever Mr. Lisle’s charges violated his right to
due process of law.
Considered singly or in combination of with the other constitutional
errors identified in this petition, the trial court’s failure to sever the ex-felon
in possession charge from the remaining charges had a substantial and
injurious effect on Lisle’s conviction and death sentence.
(ECF No. 292 at 311-12.)

10

Before trial, Lisle moved to have the charge of ex-felon in possession of a firearm

11

tried separately, and the trial court denied that motion. (ECF Nos. 183-13 at 5-7, 185-4 at

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12-14, 185-5 at 3.) The record reflects that a copy of the prior judgment of conviction was

13

admitted into evidence. (ECF No. 195-3 at 18-19.)

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Lisle asserted this claim on his direct appeal (ECF No. 186-23 at 55-58), and the
Nevada Supreme Court denied relief on the claim, ruling as follows:
On December 29, 1995, Lisle filed his motion to sever his ex-felon in
possession of a firearm count from the murder and conspiracy counts. Lisle
alleged that submitting evidence of his prior felony, conspiracy to sell a
controlled substance, as an element of the firearm charge would unduly
prejudice the jury against him with respect to the murder and conspiracy
charges. On March 21, 1996, the district court denied this motion. Lisle
asserts that the district court erred because joinder of the counts was
prejudicial.
We have held that joinder decisions are within the district court’s
discretion and that this court will not reverse that decision absent an abuse
of discretion. Robins v. State, 106 Nev. 611, 619, 798 P.2d 558, 563 (1990),
cert. denied, 499 U.S. 970, 111 S.Ct. 1608, 113 L.Ed.2d 670 (1991). The
Ninth Circuit held that “the test is whether joinder was so prejudicial that the
trial judge was compelled to exercise his discretion to sever.” United States
v. Lewis, 787 F.2d 1318, 1321 (9th Cir. 1986), amended by 798 F.2d 1250
(1986). In addition, the defendant has the burden to prove that the prejudice
was “of such magnitude that the defendant's right to a fair trial was
abridged.” Id.
In United States v. Jiminez, 983 F.2d 1020, 1022 (11th Cir. 1993),
cert. denied, 510 U.S. 925, 114 S.Ct. 330, 126 L.Ed.2d 276 (1993), a charge
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of being an ex-felon in possession of a firearm was joined with a count
charging conspiracy to distribute a controlled substance. Defendant alleged
that he was unduly prejudiced by admission of his prior felony because that
previous conviction was unrelated to the conspiracy charge. The court held
that the lower court did not abuse its discretion by denying defendant’s
motion to sever counts because the prior felony conviction was not unduly
emphasized. Id. at 1023.
In the present case, the prior felony conviction was not emphasized.
It was merely read in a jury instruction naming the charges against Lisle.
We conclude, therefore, that manifest prejudice did not result from
the information that Lisle had previously been convicted of conspiracy to
sell a controlled substance. It is doubtful that the jury convicted Lisle of
murdering Justin based solely on the fact that Lisle had previous dealings
with narcotics. In addition, admissible evidence was presented that Lisle
participated in a drug transaction with Sullivan. Therefore, even if the
charges had been severed and the jury remained unaware of Lisle's prior
felony conviction, the jury would still have been mindful of Lisle’s
involvement with drug sales.
Lisle, 941 P.2d at 469.

12

Lisle raised this issue again on the appeal in his first state habeas action, relying

13

on Nevada Supreme Court cases decided following his direct appeal, and the Nevada

14

Supreme Court ruled as follows:

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. . . Lisle argues that the district court improperly failed to sever the
charge of ex-felon in possession of a firearm from the murder charges. We
rejected this claim on direct appeal. [Footnote: Lisle, 113 Nev. at 693–94,
941 P.2d at 469.] Later, in Brown v. State, [Footnote: 114 Nev. 1118, 1126,
967 P.2d 1126, 1131 (1998)], we held that in “future cases where the State
seeks convictions on multiple counts, including a count of possession of a
firearm by an ex-felon pursuant to NRS 202.360, … severance of counts
pursuant to NRS 202.360 is required.” Although Brown announced a
prospective rule, we applied its reasoning and granted relief in a thenpending case, Schoels v. State [Footnote: 115 Nev. 33, 975 P.2d 1275
(1999)]. Lisle compares his case to Schoels and argues that Brown should
be retroactively applied to him. We disagree.
The circumstances of Schoels are completely different from those in
this case. Before trial, Schoels moved to plead guilty to the charge of exfelon in possession of a firearm; the district court denied the motion because
it would be “highly detrimental to the state.” [Footnote: Id. at 35–36, 975
P.2d at 1277.] Other than the unfair prejudicial effect of informing the jury
that Schoels was an ex-felon, we saw no support in the record for the district
court’s finding. [Footnote: Id. at 37, 975 P.2d at 1277.] Thus, we concluded
that the district court abused its discretion in refusing to accept Schoel’s
guilty plea and that the error undermined the reliability of the first-degree
murder verdict. [Footnote: Id. at 37–38, 975 P.2d at 1277–78.]
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Although the district court also denied Schoel’s motion to sever the
charge, we reached the issue independently of Brown and granted relief
based on the district court's refusal to accept the guilty plea. Here, Lisle did
not attempt to plead guilty, he only requested severance. Thus, Schoels
does not apply. Moreover, on direct appeal we determined that Lisle was
not prejudiced by the jury being informed that he was previously convicted
of conspiracy to sell a controlled substance and, therefore, the district court
did not abuse its discretion in denying Lisle’s motion to sever. [Footnote:
Lisle, 113 Nev. at 694, 941 P.2d at 469.]
(ECF No. 188-5 at 8-10.)

7

Lisle has not cited any Supreme Court authority establishing that joinder of charges

8

in a criminal case can deny a defendant’s federal constitutional rights, and the Court is

9

aware of none. See Grajeda v. Scribner, 541 F. App'x 776, 778 (9th Cir. 2013) (“The

10

Supreme Court has not held that a state or federal trial court’s denial of a motion to sever

11

can, in itself, violate the Constitution”); Hollie v. Hedgpeth, Case No. 10–55331, 2011 WL

12

5142956, at *1 (9th Cir. Oct. 31, 2011) (“The Supreme Court has never held that a trial

13

court’s failure to provide separate trials on different charges implicates a defendant’s right

14

to due process”). Indeed, the United States Supreme Court has held that “[i]mproper

15

joinder does not, in itself, violate the Constitution.” United States v. Lane, 474 U.S. 438,

16

446 n.8 (1986). The Supreme Court in Lane stated that “misjoinder would rise to the level

17

of a constitutional violation only if it results in prejudice so great as to deny a defendant

18

his Fifth Amendment right to a fair trial,” but the Ninth Circuit has characterized that

19

statement as dicta not constituting clearly established law under Section 2254(d)(1). See

20

id.; Brewer v. Adams, 412 F. App’x 30, 32 (9th Cir. 2011); Collins v. Runnels, 603 F.3d

21

1127, 1132 (9th Cir. 2010). Lane does not clearly establish federal law within the meaning

22

of 28 U.S.C. § 2254(d) (1), regarding when, if ever, severance is constitutionally required.

23

It therefore appears that there is no controlling Supreme Court precedent, and Lisle’s

24

claim fails for this reason.

25

Moreover, even if Lisle’s claim was not foreclosed for lack of controlling Supreme

26

Court precedent, this Court would still find that the claim fails. This Court agrees with the

27
28

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Nevada Supreme Court that Lisle does not show that his trial was fundamentally unfair

2

because of the joinder of the firearm charge with the murder and conspiracy charges. In

3

the guilt phase of the trial, there was strong evidence showing that Lisle was involved in

4

drug sales; the evidence of Lisle’s prior conviction for conspiracy to sell a controlled

5

substance added little to that. Moreover, the murder and conspiracy to commit murder

6

charges were of a completely different nature, and much more serious, than Lisle’s prior

7

conviction for conspiracy to sell a controlled substance. It is inconceivable that the jury

8

was influenced in any significant manner in its finding of guilt on the murder and

9

conspiracy to commit murder charges by his prior conviction for conspiring to sell a

10

controlled substance.

11

With respect to the penalty phase of the trial, regarding the jury’s finding that Lisle

12

was eligible for the death penalty—that is, that there were aggravating circumstances and

13

the aggravating circumstances were not outweighed by mitigating circumstances—the

14

jury was instructed by the trial court how to make that decision, and there is no reason to

15

believe that the jury considered Lisle’s prior conviction for conspiring to sell a controlled

16

substance. And regarding the jury’s selection of the death penalty, even if the charges

17

had been severed, the jury would have learned of Lisle’s criminal record before deciding

18

upon the sentence, so there was no unfairness caused by the joinder of charges at the

19

selection-of-penalty stage.

20

The Court concludes that the Nevada Supreme Court’s denial of relief on this claim

21

was not an unreasonable application of Supreme Court precedent and was not otherwise

22

objectively unreasonable. The Court will deny Lisle relief on Claim 10.

23

E.

Joinder of Defendants (Claim 16)

24

In Claim 16, Lisle claims that his federal constitutional rights were violated

25

“because the trial court erroneously denied Mr. Lisle’s motion to sever his trial from that

26
27
28

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of his co-defendant.” (ECF No. 292 at 371-81.) Lisle also claims, in Claim 16, that his trial

2

counsel were ineffective with respect to their handling of this issue. (Id. at 380-81.) Claim

3

16 includes seven subclaims, designated by Lisle in his fourth amended petition as

4

Claims 16A through 16G.

5

In Claim 16A, Lisle claims that the trial court’s denial of his motion to sever his trial

6

from Lopez’s trial violated his federal constitutional right to confrontation because of

7

testimony by witness John Melcher regarding statements made by Lopez to Melcher out

8

of Lisle’s presence. (Id. at 372-73.)

9

Before trial, Lisle filed a motion to sever his trial from Lopez’s trial. (ECF No. 183-

10

13.) His motion was based on his expectation that Melcher would testify that Lopez told

11

him that he saw Lisle shoot Lusch; Lisle argued that admission of that testimony would

12

violate his constitutional right of confrontation under Bruton v. United States, 391 U.S.

13

123 (1968). (Id. at 4-5.) The prosecution filed an opposition to Lisle’s motion, citing

14

Richardson v. Marsh, 481 U.S. 200 (1987), for the proposition that admission of a non-

15

testifying codefendant’s out-of-court confession does not violate the defendant’s right to

16

confrontation where the trial court instructs the jury not to use the confession against the

17

defendant and the confession is redacted to eliminate not only the defendant’s name, but

18

also any reference to the defendant’s existence. (ECF No. 183-14 at 10-11.) The

19

prosecution suggested, “[a] redaction of co-defendant Lopez’s statement to John Melcher

20

could very easily cure any problems defendant Lisle complains of.” (Id. at 11.) Lisle filed

21

a reply, arguing that “[m]erely substituting a neutral pronoun for the Defendant’s name

22

does not protect [Lisle’s] rights when it is clear from the statements that the neutral

23

pronoun refers to the Defendant.” (ECF No. 183-15 at 3.) Lisle argued in the reply that it

24

would be apparent that the unnamed person referred to in a redacted statement of Lopez

25

would be Lisle. (Id. at 4-5.) The trial court heard argument on the motion to sever (ECF

26

No. 185-4 at 3-12), and then denied the motion and ordered that Lopez’s statement to

27
28

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Melcher would be redacted to replace Lisle’s name with a neutral pronoun. (ECF Nos.

2

185-4 at 10-12, 185-5 at 3.)

3
4

At trial, the testimony of Melcher, “redacted” to refer to Lisle with nonidentifying
phrases such as “the other guy,” was as follows:

5

Q.

(By Mr. Seaton [prosecutor]): When did you meet Mr. Lopez?

6

A.

Around September, beginning of September.

7

Q.

Could it have been as early as late August?

8

A.

I believe so.

9

Q.

So it would be late August, early September of what year?

10

A.

’94.

11

Q.

’94. Did you take a trip to California with Mr. Lopez?

12

A.

Yes.

13

Q.

Prior to that trip were you in a place where you had a conversation
with him?

A.

Yes.

Q.

Where was that place?

A.

Sophia Martinez.

Q.

At her house or apartment?

14
15
16
17
18
19

*

*

*

A.

Yes.

Q.

When you had the conversation with Mr. Lopez, where were you
within her house?

22

A.

Me and Mr. Lopez, we were in the front living room.

23

Q.

In the living room?

24

A.

Yes.

25

Q.

Were there any other people in the living room at that time?

26

A.

Yes—no, I mean.

20
21

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28

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3
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6

Q.

But there were other people in the house—

A.

Yes.

Q.

—but not in the living room, correct?

A.

Yes.

Q.

Did he say anything to you about having gone to an individual’s
house to pick him up?

A.

Yes.

7

*

*

*

8

Q.

(By Mr. Seaton [prosecutor]): What did he say?

9

A.

He said that him and this guy went to go pick this guy up and they
went out. They stopped the car. The person that was in—I guess in
the passenger’s seat got out of the car, went to the back of the car.

11

Q.

Who got out of the car—the other guy or Mr. Lopez?

12

A.

The other guy.

13

Q.

And who else got out of the car?

14

A.

Lusch. I guess was Lusch. He didn’t mention no name at that time.

15

Q.

But later did he mention a name?

16

A.

Yes.

17

Q.

So the other guy and Mr. Lusch got out of the car?

18

A.

They went to the back of the car.

19

Q.

How was Mr. Lopez able to watch this? Did he tell you?

20

A.

Through the rear view mirror.

21

Q.

What did he say he saw?

22

A.

Saw this person start shoot this guy. He said—

23

Q.

The guy being shot was Mr. Lusch?

24

A.

Yes.

25

Q.

The other guy is the one who was doing the shooting?

A.

Yes.

10

26
27
28

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Q.

And did he say that he actually saw the shooting?

2

A.

Yes.

3

Q.

What was your reaction when he said these things to you?

4

A.

Like what? I don’t know nothing about it really and he told me, you
don’t know nothing about the murder of the chief’s son and I told him
no.

6

Q.

The murder of the chief’s son?

7

A.

Yes.

8

Q.

Is that how you understood it to be Justin Lusch that was the other
person in the car?

A.

Yes.

Q.

When Mr. Lopez told you these things, how did he act?

A.

No big deal.

Q.

No big deal?

A.

No big deal.

Q.

Was he excited about it?

A.

Not really.

Q.

Was he worried about it?

A.

I didn’t see it.

Q.

Did he ever say anything that he didn’t have anything to do with it?

A.

Not that I remember.

5

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(ECF No. 197-3 at 14-17.)
Lisle asserted this claim on his direct appeal (ECF No. 186-23 at 52-55), and the
Nevada Supreme Court ruled as follows:
On December 29, 1995, Lisle filed a motion to sever his trial from
that of Lopez. He based this motion on the statement that Lopez made to
Melcher, incriminating Lisle; specifically, Lopez told Melcher that he
observed Lisle shoot Justin at the rear of the car. On March 21, 1996, the
district court filed its order denying Lisle’s motion. However, the court
ordered that when Melcher testified as to Lopez’s statement, the statement
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must be redacted so as to exclude any reference to Lisle. Accordingly, when
Melcher testified, he stated that Lopez observed “the other guy” shoot
Justin.
Lisle cites Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20
L.Ed.2d 476 (1968), for the proposition that Lisle’s constitutional right to
cross-examine the witness was violated when Lopez’s hearsay statements,
which inculpate Lisle, were admitted. However, Lisle fails to cite Richardson
v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Richardson
held that if a statement is redacted to exclude defendant’s existence and
the statement is not incriminating on its face, but only when linked with other
evidence introduced later at trial, then a limiting instruction will cure any
prejudice. Id. at 211, 107 S.Ct. at 1709. Therefore, a redacted version of the
statement may be admitted. Id.
The United States Court of Appeals for the Ninth Circuit extended
this concept to allow defendant’s name to be replaced by a neutral word,
such as “individual.” Therefore, although the statement referred to
defendant’s existence, the court allowed it to be admitted as long as his
name was not used. United States v. Enriquez–Estrada, 999 F.2d 1355,
1359 (9th Cir. 1993).
Here, Melcher’s testimony that Lopez observed “the other guy” shoot
Justin is not incriminating on its face because it does not, in and of itself,
reference Lisle. Only when other evidence introduced at trial linked that
statement to Lisle did it incriminate him. Under Richardson and Enriquez–
Estrada, this is not a violation of Lisle’s constitutional rights.
Lisle also cites Stevens v. State, 97 Nev. 443, 444, 634 P.2d 662,
663 (1981), which reversed a co-defendant’s conviction because “[i]t
appears likely that the jury read the appellant’s name into the blanks” in her
co-defendant’s statement. This case is distinguishable because no direct
evidence, only circumstantial evidence, was introduced of Stevens’
involvement in the crime; therefore, her co-defendant’s statement, although
redacted, was extremely damaging. In the instant matter, regardless of
Lopez’s statement, four other witnesses heard Lisle confess to killing Justin.
[Footnote: These witnesses are Evans, Prince, Vanella’s mother, and
Melcher.] See id. at 445, 634 P.2d at 664 (holding harmless error analysis
applies).
Accordingly, we conclude that the district court did not abuse its
discretion in denying Lisle’s motion to sever.
Lisle, 941 P.2d at 468-69.

23

Lisle asserted the claim, again, on the appeal in his first state habeas action (ECF

24

No. 188-2 at 52-59), as the Supreme Court had decided the case of Gray v. Maryland,

25

523 U.S. 185 (1998), on June 17, 1997, which was after the Nevada Supreme Court ruled

26
27
28

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on Lisle’s direct appeal but before his conviction became final. (ECF No. 317 at 14.) The

2

Nevada Supreme Court then ruled as follows on the claim:

3
4
5
6
7
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Lisle . . . claims that his right to confront and cross-examine
witnesses against him was violated when the district court admitted Lopez’s
out-of-court confession that inculpated Lisle. Although Lisle concedes that
this court rejected this claim on direct appeal, he contends that [Gray], a
recent United States Supreme Court opinion, requires us to remand for a
new trial. We disagree. Gray does not alter our prior analysis of this issue.
[Footnote: We address this issue because Lisle’s direct appeal was not final
when Gray was decided. See Garner v. State, 116 Nev. 770, 788 & n.8, 6
P.3d 1013, 1025 & n.8 (1999).]
In Gray, a police detective that read the codefendant’s confession
into the record substituted the word “deleted” or “deletion” for the nonconfessing defendants’ names. [Footnote: Gray, 523 U.S. at 188.]
Immediately after the detective read the confession, the prosecutor asked,
“‘after he gave you that information, you subsequently were able to arrest
[one of the non-confessing defendants]; is that correct?’ The officer
responded, ‘That is correct.’” [Footnote: Id. at 188–89.] The Court compared
the redacted confession to the ones at issue in [Bruton] and [Richardson].
And the Court determined that a confession with obvious deletions has the
same impact as a confession that names the non-confessing defendant
because (1) the jury will often realize that the confession refers specifically
to the defendant, (2) the obvious deletion could call the jury’s attention to
the removed name, and (3) they function the same way grammatically.
[Footnote: Gray, 523 U.S. at 192–94.] Therefore, the Court held that a
confession with obvious deletions falls under Bruton’s protective rule.
[Footnote: Id. at 195.]
Unlike Gray, the confession in this case was not obviously altered.
Melcher testified that Lopez told him that Lopez and “another guy” drove the
victim to the desert and that “the other guy” shot the victim. The jury could
have reasonably thought that when discussing the crime with Melcher,
Lopez omitted his accomplice’s name. Thus, even under Gray’s alteration
test, the confession alone is not incriminating.
Lisle argues that the context in which Lopez’s redacted confession
was admitted made it obvious that he was “the other guy.” However, the
Gray decision was not based on the context in which the redacted
confession was admitted but the manner in which it was redacted. The
Supreme Court’s analysis focused on the close resemblance of the
unredacted confession and the one with obvious alterations, holding that
they are functionally equivalent. [Footnote: Id. at 192–95.] In fact, the
Supreme Court held that the obviously altered statement violated Gray’s
Sixth Amendment rights independently of the prosecutor’s follow-up
question. [Footnote: Id. at 193.] Our prior analysis remains sound because
Gray did not affect the primary holding in Richardson. [Footnote: See
generally Gray, 523 U.S. 185.] That is, it is not improper to admit a
codefendant’s confession redacted so that it does not facially incriminate
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the other defendant although the confession becomes incriminating when
linked with other evidence introduced at trial. [Footnote: See Richardson,
481 U.S. at 208-209.] Thus, we conclude that Lisle is not entitled to any
relief on this ground.
(ECF No. 188-5 at 6-8.)

4

Under the AEDPA standard, the question is whether the Nevada Supreme Court’s

5

application of Bruton, Richardson, and Gray is objectively unreasonable, that is, whether

6

it is beyond reasonable argument that the Nevada Supreme Court misapplied those

7

cases. This Court determines that it is not. A fair-minded jurist could reasonably argue

8

that the Nevada Supreme Court correctly applied Bruton, Richardson, and Gray.

9
10
11
12
13
14
15
16

In Richardson, the Supreme Court stated the basic prohibition of the Confrontation
Clause, and the problem of out-of-court confessions in joint trials, as follows:
The Confrontation Clause of the Sixth Amendment, extended against
the States by the Fourteenth Amendment, guarantees the right of a criminal
defendant “to be confronted with the witnesses against him.” The right of
confrontation includes the right to cross-examine witnesses. See Pointer v.
Texas, 380 U.S. 400, 404, 406–407, 85 S.Ct. 1065, 1068, 1069–1070, 13
L.Ed.2d 923 (1965). Therefore, where two defendants are tried jointly, the
pretrial confession of one cannot be admitted against the other unless the
confessing defendant takes the stand.
Richardson, 481 U.S. at 206.

17

In Gray, the Supreme Court described its holding in Bruton as follows:

18

Bruton involved two defendants accused of participating in the same crime
and tried jointly before the same jury. One of the defendants had confessed.
His confession named and incriminated the other defendant. The trial judge
issued a limiting instruction, telling the jury that it should consider the
confession as evidence only against the codefendant who had confessed
and not against the defendant named in the confession. Bruton held that,
despite the limiting instruction, the Constitution forbids the use of such a
confession in the joint trial.

19
20
21
22
23

Gray, 523 U.S. at 188. Notably, in Bruton, the codefendant’s out-of-court statement was

24

indisputably inculpatory of the defendant on its face and it was not redacted or otherwise

25

altered to prevent it from implicating the defendant. See 391 U.S. at 123-26.

26
27
28

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In Richardson, the Supreme Court considered the use of a redacted confession in

2

a joint trial. As the Richardson Court put it, the issue was “whether Bruton requires the

3

same result when the codefendant’s confession is redacted to omit any reference to the

4

defendant, but the defendant is nonetheless linked to the confession by evidence properly

5

admitted against him at trial.” 481 U.S. at 202. The Richardson Court explained the

6

essential difference between that case and Bruton:

7

10

In Bruton, the codefendant’s confession “expressly implicat[ed]” the
defendant as his accomplice. [Bruton, 391 U.S. at 124, n.1]. Thus, at the
time that confession was introduced there was not the slightest doubt that
it would prove “powerfully incriminating.” Id., at 135, 88 S.Ct., at 1627. By
contrast, in this case the confession was not incriminating on its face, and
became so only when linked with evidence introduced later at trial (the
defendant’s own testimony).

11

Id. at 208. The Richardson Court held “that the Confrontation Clause is not violated by

12

the admission of a nontestifying codefendant’s confession with a proper limiting

13

instruction when . . . the confession is redacted to eliminate not only the defendant’s

14

name, but any reference to his or her existence.” Id. at 211. The Court added, “[w]e

15

express no opinion on the admissibility of a confession in which the defendant’s name

16

has been replaced with a symbol or neutral pronoun.” Id. at 211 n.5.

8
9

17

In Gray, “the prosecution . . . redacted the codefendant’s confession by substituting

18

for the defendant’s name in the confession a blank space or the word ‘deleted,’” and the

19

Supreme Court addressed the question of the effect of such obvious alterations. 523 U.S.

20

at 188. The Court described the factual background in Gray as follows:

21
22
23
24
25
26
27
28

In 1993, Stacey Williams died after a severe beating. Anthony Bell
gave a confession, to the Baltimore City police, in which he said that he
(Bell), Kevin Gray, and Jacquin “Tank” Vanlandingham had participated in
the beating that resulted in Williams’ death. Vanlandingham later died. A
Maryland grand jury indicted Bell and Gray for murder. The State of
Maryland tried them jointly.
The trial judge, after denying Gray's motion for a separate trial,
permitted the State to introduce Bell’s confession into evidence at trial. But
the judge ordered the confession redacted. Consequently, the police
detective who read the confession into evidence said the word “deleted” or
“deletion” whenever Gray’s name or Vanlandingham’s name appeared.
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Immediately after the police detective read the redacted confession to the
jury, the prosecutor asked, “after he gave you that information, you
subsequently were able to arrest Mr. Kevin Gray; is that correct?” The
officer responded, “That's correct.” The State also introduced into evidence
a written copy of the confession with those two names omitted, leaving in
their place blank white spaces separated by commas. The State produced
other witnesses, who said that six persons (including Bell, Gray, and
Vanlandingham) participated in the beating. Gray testified and denied his
participation. Bell did not testify.

7

When instructing the jury, the trial judge specified that the confession
was evidence only against Bell; the instructions said that the jury should not
use the confession as evidence against Gray. The jury convicted both Bell
and Gray.

8

Id. at 188-89 (citations to record on appeal omitted). The Gray Court held that

9

“[r]edactions that simply replace a name with an obvious blank space or a word such as

10

‘deleted’ or a symbol or other similarly obvious indications of alteration, however, leave

11

statements that, considered as a class, so closely resemble Bruton’s unredacted

12

statements that, in our view, the law must require the same result.” Id. at 192.

6

13

The Gray Court recognized that Richardson “placed outside the scope of Bruton’s

14

rule those statements that incriminate inferentially,” and also recognized that inferences

15

were required for the out-of-court statement to incriminate the defendant in that case, but

16

still found the statement in Gray to violate the defendant's right of confrontation. Id. at

17

195-96. With respect to this point, the Court distinguished Gray from Richardson:

18

. . . Richardson must depend in significant part upon the kind of, not
the simple fact of, inference. Richardson’s inferences involved statements
that did not refer directly to the defendant himself and which became
incriminating “only when linked with evidence introduced later at trial.” 481
U.S., at 208, 107 S.Ct., at 1707. The inferences at issue here involve
statements that, despite redaction, obviously refer directly to someone,
often obviously the defendant, and which involve inferences that a jury
ordinarily could make immediately, even were the confession the very first
item introduced at trial. Moreover, the redacted confession with the blank
prominent on its face, in Richardson’s words, “facially incriminat[es]” the
codefendant. Id., at 209, 107 S.Ct., at 1708 (emphasis added). Like the
confession in Bruton itself, the accusation that the redacted confession
makes “is more vivid than inferential incrimination, and hence more difficult
to thrust out of mind.” 481 U.S., at 208, 107 S.Ct. at 1707.

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27
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Id. at 196. The Court in Gray held that the defendant’s Sixth Amendment right of

2

confrontation was violated by admission of the codefendant’s obviously redacted

3

confession.

4
5
6
7
8
9

In contrast to the statement considered in Gray, Melcher’s testimony about Lopez’s
statement was not obviously altered. The Nevada Supreme Court noted this:
Unlike Gray, the confession in this case was not obviously altered.
Melcher testified that Lopez told him that Lopez and “another guy” drove the
victim to the desert and that “the other guy” shot the victim. The jury could
have reasonably thought that when discussing the crime with Melcher,
Lopez omitted his accomplice’s name. Thus, even under Gray’s alteration
test, the confession alone is not incriminating.

10

(ECF No. 188-5 at 7.) This is a reasonable distinction. It appears likely that the jury did

11

not realize that Melcher’s testimony about Lopez’s statement had been redacted, altered,

12

or limited in any way; the jury likely understood Melcher to be saying that Lopez used the

13

phrase “the other guy,” and did not tell him in that conversation who the other guy was.

14

In Gray, the Supreme Court emphasized the obviousness of the redactions of the

15

statement at issue in that case. In Gray, a portion of the statement was redacted to read

16

“[m]e, deleted, deleted and a few other guys” and the Court suggested that a better

17

alteration would have had the statement simply read “[m]e and a few other guys.” 523

18

U.S. at 185; see also U.S. v. Peterson, 140 F.3d 819, 822 (9th Cir. 1998) (discussing this

19

part of Gray and stating that “Gray clarifies that the substitution of a neutral pronoun or

20

symbol in place of the defendant’s name is not permissible if it is obvious that an alteration

21

has occurred to protect the identity of a specific person”). The statement in this case was

22

not obviously altered; it was, in that respect, like the alteration suggested in Gray. A fair-

23

minded jurist could argue that this distinguishes this case from Gray and makes it more

24

like Richardson.

25

Moreover, Lopez’s out-of-court confession, as described to the jury by Melcher

26

(quoted in its entirety above), did not, on its face, implicate Lisle. As Melcher relayed it to

27
28

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1

the jury, Lopez told him that the “other guy” shot Lusch. Lopez’s statement, as relayed by

2

Melcher, did not indicate who “the other guy” was. It was only as a result of other evidence

3

that it would have been apparent to the jury that Lisle was the “other guy.” In Gray, the

4

Supreme Court stated that this, too, remains an important factor to be considered. See

5

523 U.S. at 195 (“We concede that Richardson placed outside the scope of Bruton’s rule

6

those statements that incriminate inferentially”) (citing Richardson, 418 U.S. at 208).

7

Applying an analysis suggested in Gray: If Melcher’s testimony had been the very first

8

evidence introduced at Lisle’s trial, Lopez’s out-of-court statement would not have

9

implicated Lisle. See Gray, 523 U.S. at 196. A fair-minded jurist could argue that this is

10

another key difference from the statement considered in Gray.

11

Therefore, the Court concludes that it could reasonably be argued that, under

12

Bruton, Richardson, and Gray, the denial of Lisle’s motion to sever his trial from Lopez’s

13

trial did not result in a violation of his constitutional right to confrontation. The Court will

14

deny Lisle habeas corpus relief on Claim 16A.

15

In Claims 16B and 16C, Lisle makes two related claims: that the trial court’s denial

16

of his motion to sever his trial from Lopez’s trial violated his federal constitutional right to

17

due process of law because, at their joint trial, the prosecution introduced evidence

18

implicating Lisle in the Logan murder, and, in an attempt to cure that, the trial court

19

required the prosecution to introduce false testimony of prosecution witness Larry Prince.

20

(ECF No. 292 at 373-74.) These claims, as set forth in Lisle’s fourth amended habeas

21

petition, are as follows:

22
23
24
25
26
27
28

The failure to grant a severance also resulted in the erroneous
admission of evidence of the Logan homicide. As stated in Claim Three, the
State erroneously adduced prejudicial evidence of an unrelated homicide in
the guilt phase of Mr. Lisle’s trial. The State connected Mr. Lisle to this
homicide through the testimony of William Skupa, Adam Evans, and Larry
Prince. Mr. Lisle hereby incorporates the allegations set forth in Claim Three
of this Petition as if set forth fully herein.
The trial court noted the prejudicial impact Mr. Prince’s references to
the Logan homicide had on the jury. The court warned the State against
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eliciting testimony regarding the Logan homicide. ECF No. 197-1 at 90-91.
The trial court erroneously denied Mr. Lisle’s renewed motion for a mistrial
based on the error. Rather, the trial court directed the State to have Mr.
Prince falsely testify that ten or fifteen other people were in Mr. Prince’s
apartment prior to the Logan homicide.

1
2
3

*

4

*

The failure to grant a severance also resulted in the trial court
ordering Larry Prince to present false testimony. Mr. Lisle hereby
incorporates the allegations set forth in Claim Five as if set forth fully herein.
As stated in that claim, the trial court noted that to not remedy the error from
the State’s repeated references to the Logan homicide would be reversible
error. The trial court, in an effort to remedy the error, ordered Mr. Prince to
falsely testify that ten to fifteen other white male adults lived with him in his
apartment. ECF No. 197-1 at 92.

5
6
7
8
9

The failure to grant a severance tainted the integrity of the judicial
system. False testimony was intentionally directed by the trial court. A
conviction and death sentence by such a system is fundamentally unfair
and a violation of due process of law. The trial court’s order to put on false
testimony also deprived Mr. Lisle of an opportunity to cross-examine the
State’s evidence against him. The false testimony deprived Mr. Lisle of an
opportunity to evaluate the reliability of Mr. Prince’s testimony under
adversarial procedures. Finally, the order that Mr. Prince testify falsely
required the presentation of inherently unreliable evidence; the use of this
evidence in capital sentencing violates the Eighth Amendment’s
prohibitions on cruel and unusual punishments. Accordingly, the failure to
sever Mr. Lisle’s trial from Mr. Lopez’s trial had a substantial and injurious
effect on Mr. Lisle’s conviction and death sentence.

10
11
12
13
14
15
16

*

(Id.)

17

The trial court had ordered that the prosecution be precluded from introducing

18

evidence implicating Lisle in the Logan murder. (ECF Nos. 185-4 at 36-38, 185-5.) Lisle

19

alleges though that the testimony of Evans, William S. Skupa, and Prince, violated that

20

order. Skupa was Evans’s attorney; he testified that Evans, Melcher, and an adult male

21

were charged with Logan’s murder, and that the adult was convicted of that murder. (ECF

22

No. 196-2 at 165, 174.) Evans testified that an adult white male fired the shot that killed

23

Logan and was convicted of that murder. (ECF No. 197-1 at 32-36.) Prince testified as

24

follows:

25
26
27
28

Q. [by the prosecutor]
A.

Was there another case as well that you were
going to be able to lend testimony to?

Yes.
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Q.

Did that case have to do with a situation where Adam Evans and
John Melcher along with another male adult were charged with a
murder?

3

A.

Yes.

4

Q.

Are you aware that that happened in an automobile?

5

A.

Yes.

6

Q.

Did you have certain information about that crime?

7

A.

No more than general information. I had no privileged information.

8

Q.

Did you have information that you could share with a jury in the trial
of that particular crime?

A.

Some of the events before the crime in my apartment.

Q.

Did you, in fact, so testify in that trial?

A.

Yes.

Q.

And Adam and John Melcher, did they testify as well?

A.

Yes.

2

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(ECF No. 197-1 at 88-89.)
After that testimony, the trial judge was apparently concerned about Prince’s
disclosure that he had information about the Logan murder that he learned from “[s]ome
of the events before the crime in my apartment,” and she spoke with counsel about this
matter during a break and without the jury present:
THE COURT:
from the courtroom.

The record will reflect that the jury has retired

The reason I asked you to stay is, Mr. Seaton [prosecutor], you are
getting right on the line here, and I’m going to tell you to back off of it and
back off of it by about 10 feet. You have now told the jury that not only was
it an unnamed adult, you’ve given it a sex and a race. That’s not necessary
and –
MR. SEATON [prosecutor]:

How did I give it a sex and a race?

THE COURT:
You said an unidentified white male was the last
one that you went—last description in front of Adam Evans, and now you
are narrowing it down to someone that Larry Prince had in his apartment,
and I’m telling you you’re on the line, and you better get off of it, and you
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2
3
4
5
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7
8
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10
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12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

better figure out something during the lunch hour to back that out and fix it
because you’re right on the line.
MR. SEATON:
say white male.
THE COURT:

Just to let the Court know, I had no intention to
But you did.

MR. SEATON:
It’s like when we talk about the guilt phase. I did
that accidently because it’s just words that come out. We have tried real
hard –
THE COURT:
recessed until 1:15.

Think of some remedial thing to do. We’re

MS. BLASKEY [Lisle’s counsel]: Based on the comments that you
made and based on what transpired this morning, we are compelled to ask
the Court for a mistrial, and I hope that for the years that our performance
is reviewed in this case, it will be understood that we were in a position
where we cannot possibly object in a contemporaneous fashion. It simply
would have the effect of drawing more attention to the question that we find
so objectionable.
THE COURT:
Your objection at this point in time is deemed to
be timely, and you’re right. If you had objected at that moment, it would have
made it even worse than it is now. Your motion for mistrial is denied at this
moment.
You craft something to get away from this, back up somehow.
MR. SEATON:
Before we leave while it’s on our minds, just let
me state the only thing I’m going to be able to come up with, and I have no
difficulty with this, is to simply say to the jury that the phraseology was
improper on my part and –
THE COURT:
You have Mr. Prince testify to 15 other people
that were in that apartment prior to this time, or ten other people, and I don’t
even care if it’s correct testimony or not correct testimony, but you put more
people in that apartment.
MS. BLASKEY:
Judge, for the record my motion for mistrial I’d
like to make it twice, based on Mr. Seaton’s comments of the white male
and also based on Mr. Prince’s testimony that he had knowledge because
of the people who were living in his apartment. It’s very clear that my client
was living there.
THE COURT:
It’s also going to be very clear when the jury
comes back that a number of other people were living there, and I don’t care
if you have to fabricate these people. I don‘t care if you have to fabricate
these people. I don’t care where you get them from, but they’re going to live
there. So we’ll be in recess until 1:15.
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2
3
4
5
6
7
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10
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12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(Id. at 90-92.) After the recess, the discussion continued without the jury present:
MS. BLASKEY:
Your Honor, prior to the noon recess we moved
for a mistrial, because of a comment of Mr. Seaton elicited during Larry
Prince’s testimony that a white male was actually the shooter in the other
case. That’s information that we have gone to great length to keep the jury
from piecing together. We would move for mistrial based on that and of
necessity that excludes Mr. Lopez.
It’s my understanding Mr. Schieck [Lopez’s counsel] was going to put
on witnesses that exonerated Mr. Lopez in that regard which we would have
objection to. Essentially, what has come out is that it was a white male
involved. According to Miss Hatcher a number of jurors were looking at Mr.
Lisle. All of this has not been lost on them, judge.
I would like to renew my motion for mistrial at this time. Additionally,
a comment came out. I am sorry. I didn’t mean to interrupt the Court.
THE COURT:

I didn’t say anything.

MS. BLASKEY:
Additionally, a comment came out while Mr.
Prince was testifying that he had information on the other homicide because
of information he was privy to because of who was living in his house and
Court instructed Mr. Seaton make curative attempts in that regard.
Mr. Baker [Lisle’s other attorney] and I discussed this. We are
concerned that the error cannot be cured, and we would object to any
further efforts to clear the air because we are afraid at this point it can only
make this worse. We would renew the motion, and I submit it with that.
THE COURT:
Thank you. As I understand it, based upon our
conversation with you all in chambers, that you are going to both have the
opportunity to cross-examine Mr. Prince and that on redirect the State will
specifically ask Mr. Prince if during the time period from August of 1994 up
until November of 1994 if he had other white male adults who stayed with
him off and on or from time to time, and that it’s my understanding his
response to the question will be, yes, he did, and it will be multiple other
white male adults.
I have cautioned Mr. Seaton, as you know, that he is to stay away
from any type of information or even a hint of an inference that Mr. Lisle
may be the unknown white male adult of whom Mr. Adams and Mr. Melcher
testified about and now Mr. Prince testified about in another murder case,
and, I believe, that to leave it alone would be absolutely reversible.
I don’t believe in giving cautionary instructions. I believe that, in fact,
would tend to make it worse than leaving it alone and that the preferable
way to do this is the way that it is going to be done, and that is going to be
that other than leaving the jury with the impression as they have now that
the kid Adam Evans stayed over there occasionally and that Jerry Lopez
and Kevin Lisle stayed there off and on for a couple of weeks, we will put
multiple adult white males in that household between August and
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1
2
3
4
5
6

November, and that is the preferable way to do it because that’s the most
neutral way, and that’s the best way to neutralize perhaps an inference that
the jury may have reached through Mr. Seaton’s questioning.
(ECF No. 197-2 at 6-8.)
Subsequently, during the prosecution’s redirect examination of Prince, Prince
testified as follows:
Q. [by the prosecutor]

7
8

Mr. Prince, from a couple months before August
the 22nd through and including November 1994,
did various white male adults stay at your
house?

A.

Oh, yes, not only white male adults but certainly including them. I
essentially had a party pad.

10

Q.

A fairly significant number of people were there on and off?

11

A.

At all hours. In fact, I was reprimanded a couple of times for having
that.

9

12
13

(Id. at 41.)

14

Lisle appears to have asserted claims like those in Claims 16B and 16C, on federal

15

law grounds, in state court, on the appeal in his first state habeas action (ECF No. 188-2

16

at 47-52), and the Nevada Supreme Court denied relief, ruling as follows:

17

23

On direct appeal, we also considered Lisle’s next argument. Lisle
alleges that the district court erred by allowing the prosecutor to elicit
evidence that the jury could have used to connect Lisle to another murder.
Lisle’s trial counsel objected and moved for a mistrial. The district court
denied the motion, but diffused the problem by ordering a curative remedy.
On direct appeal, Lisle argued that the district court abused its discretion by
denying the motion. [Footnote: Lisle, 113 Nev. at 699–700, 941 P.2d at
472–73.] We concluded that the district court sufficiently cured any
prejudice and properly denied Lisle’s motion. The doctrine of law of the case
cannot be avoided by a more detailed and precisely focused argument
made after reflecting on the previous proceeding. [Footnote: Hall, 91 Nev.
at 316, 535 P.2d at 799.] The district court properly denied relief on this
ground.

24

(ECF No. 188-5 at 5-6.) On Lisle’s direct appeal, it was not clear that he asserted a

25

federal-law ground for these claims (ECF No. 186-23 at 67-75), but the Nevada Supreme

26

Court’s ruling on the appeal in Lisle’s first habeas action indicates that the Nevada

18
19
20
21
22

27
28

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1

Supreme Court saw itself as having denied relief on the claims on their merits, and the

2

Court here gives effect to that ruling. Therefore, the Court addresses these claims on their

3

merits, affording the Nevada Supreme Court’s denial of relief on the claims the deference

4

required under 28 U.S.C. § 2254(d)(1). Because the Nevada Supreme Court denied relief

5

on these claims without discussion, this Court “must determine what arguments or

6

theories supported or . . . could have supported, the state court’s decision; and then it

7

must ask whether it is possible fairminded jurists could disagree that those arguments or

8

theories are inconsistent with the holding in a prior decision of [the Supreme] Court.”

9

Harrington, 562 U.S. at 102.

10

As the Court understands Lisle’s argument, it is that his trial was unfair because

11

the testimony of Skupa, Evans, and Prince implicated Lisle in the Logan murder, and

12

because Prince testified untruthfully that there were many “white male adults” who

13

“stayed” at his home, or who were “there on and off,” “at all hours,” during the months

14

prior to the Logan murder. (ECF Nos. 329 at 86-89, 92-94, 186-23 at 67-75, 188-2 at 47-

15

59.) Lisle appears to argue that the Nevada Supreme Court’s ruling was an unreasonable

16

determination of the facts, and was contrary to, or an unreasonable application of Fry v.

17

Pliler, 551 U.S. 112 (2007). The Court disagrees and finds these claims to be without

18

merit. The Nevada Supreme Court could reasonably have ruled that the testimony of

19

Skupa, Evans, and Prince did not implicate Lisle in the Logan murder. Viewing the

20

testimony of Skupa, Evans, and Prince in the context of the other evidence in the case, it

21

appears the jury was unlikely to deduce that the white male adult who shot Logan was

22

Lisle. And with respect to Prince’s testimony about various white male adults spending

23

time at his home, Lisle does not make any showing that testimony was untrue. It is true

24

that the trial judge compelled the prosecution to elicit this testimony from Prince and that

25

she expressed that she did not care whether the testimony was truthful or not—that being

26

the “curative remedy” referred to by the Nevada Supreme Court. This Court does not

27
28

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1

condone the judge’s comment that she did not care if this testimony by Prince was truthful

2

or not.

3

However, there is no claim that the trial judge’s comment itself violated Lisle’s

4

federal constitutional rights. Moreover, the fact that the judge made that comment does

5

not necessarily mean that Prince’s testimony was untruthful. Lisle has made no effort to

6

show that Prince’s testimony was in fact untrue. And in the context of all the evidence, it

7

is quite believable that various white male adults spent time at Prince’s home in the

8

months before the Logan murder. There is no showing that Lisle’s trial was rendered

9

unfair either by the testimony that a white male adult who might have spent time at

10

Prince’s home killed Logan or by Prince testifying that various white male adults spent

11

time at his home. Lisle makes no showing that the Nevada Supreme Court’s denial of

12

relief on these claims was based on an unreasonable determination of the facts or that it

13

was contrary to or an unreasonable application of Fry or any other Supreme Court

14

precedent. Applying 28 U.S.C. § 2254(d)(1), the Court finds Claims 16B and 16C to be

15

meritless and will deny Lisle habeas corpus relief on those claims.

16

In Claim 16D, Lisle claims that, in the penalty phase of his trial, because he was

17

tried jointly with Lopez, the trial court precluded the presentation of certain mitigating

18

evidence regarding his alleged vulnerability to influence by Lopez, violating his federal

19

constitutional rights. (ECF No. 292 at 374-75.) The evidence at issue in Claim 16D is the

20

testimony of Janice Sykes, a probation officer with the San Luis Obispo County,

21

California, Probation Department. Sykes’s testimony from the penalty phase of Lisle’s trial

22

for the Logan murder was read into the record in the penalty phase of Lisle’s trial in this

23

case because she was unavailable to testify in person. (ECF No. 198-4 at 28-39.) Sykes

24

supervised Lisle, as his probation officer, in 1988 and 1989, when Lisle was 17 to 18

25

years old. (Id. at 31-32.) Sykes’s testimony was admitted only as it concerned Lisle, not

26

Lopez, because Lopez had not had an opportunity to cross-examine Sykes. (Id. at 28.)

27
28

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Sykes’s testimony in the Logan murder trial mentioned Lopez, as the two were friends in

2

California in 1988 and 1989, and Lisle had lived with Lopez for a time during those years.

3

However, because Sykes’s testimony could not be used against Lopez in this case, it was

4

redacted to omit all references to Lopez. (ECF Nos. 198-4 at 29-39, 73-3 at 41-46.) Lisle’s

5

claim is that, therefore, because he was tried jointly with Lopez, his federal constitutional

6

rights were violated because the following was omitted from the reading of Sykes’s

7

testimony into the record in this case:

8
9
10

Q. [prosecutor]:
A. [Sykes]:

Okay. Was there any kind of a difficulty with this Jerry
Lopez, and his living with him at that time?

Kevin [Lisle] was ordered, as a ward of the Court, not to
associate with Jerry.

11

Q.

Jerry Lopez?

12

A.

Correct.

13

Q.

And had he been associating with him?

14

A.

He had been living with him.

15

(ECF Nos. 198-4 at 36, 73-3 at 44.) Lisle argues that this testimony—that Lisle was

16

ordered not to associate with Lopez in 1988 and 1989—would have been evidence

17

supporting his alleged “vulnerability to the influence of others” as a mitigating

18

circumstance. (ECF No. 73-3 at 29 (special verdict form, signed by jury foreperson,

19

indicating jury did not find that mitigator).)

20
21

Lisle objected to the redaction of Sykes’s testimony, and the trial court heard
argument regarding the objection and then overruled it. (ECF No. 198-5 at 5-7.)

22

Lisle subsequently asserted this claim, as a federal constitutional violation, on his

23

direct appeal (ECF No. 186-23 at 84-87), and the Nevada Supreme Court ruled as follows:

24

Lisle presented the former sworn testimony of Janice Sykes
(“Sykes”), Lisle’s juvenile probation officer when he was seventeen years
old, six years prior. Her testimony described Lisle’s involvement with the
criminal justice system when he was a juvenile. The district court redacted
certain portions of the testimony relating to Lisle’s relationship with Lopez.
Specifically omitted was testimony that Lisle was ordered, as a ward of the

25
26
27
28

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court, not to associate with Lopez. These statements were redacted
because they may have prejudiced Lopez, whose sentence was also at
issue in the penalty hearing.

1
2

One of the mitigating factors Lisle presented was his vulnerability to
the influence of others. The jury did not find that this mitigator existed. Lisle
contends on appeal that redacting the references to Lopez precluded him
from presenting mitigating evidence. See Harris v. State, 106 Nev. 667, 671,
799 P.2d 1104, 1106 (1990) (“The sentencing body may not be precluded
from considering any relevant mitigating evidence.”).

3
4
5
6

We conclude that Lisle was not precluded from presenting evidence
of his vulnerability to the influence of others. For example, his mother
testified that Lisle started having problems after he became friends with
Lopez and that she did not approve of their friendship.

7
8

Moreover, we conclude that Sykes’ testimony is irrelevant to whether
Lisle was currently vulnerable to Lopez because her acquaintance with Lisle
occurred six years ago. Further, her testimony does not state that Lopez
was a bad influence on Lisle; rather, it could easily be interpreted as Lisle
being a bad influence on Lopez. This is especially noteworthy in light of
testimony during the guilt phase that Lopez was very quiet and often not
present for conversations in which Lisle participated regarding obtaining
drugs or killing Justin. Accordingly, Lisle’s argument lacks merit.

9
10
11
12
13

Lisle, 941 P.2d at 475.

14

Lisle cites the Supreme Court case of Lockett v. Ohio, 438 U.S. 586 (1978), as the

15

primary support for his claim. In Lockett, the Court stated that “the Eighth and Fourteenth

16

Amendments require that the sentencer . . . not be precluded from considering, as a

17

mitigating factor, any aspect of a defendant’s character or record and any of the

18

circumstances of the offense that the defendant proffers as a basis for a sentence less

19

than death.” 438 U.S. at 604 (emphasis in original); see also Eddings v. Oklahoma, 455

20

U.S. 104, 112-16 (1982) (reaffirming rule of Lockett); Skipper v. South Carolina, 476 U.S.

21

1, 4 (1986) (same). The Lockett Court added in a footnote, “[n]othing in this opinion limits

22

the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the

23

defendant's character, prior record, or the circumstances of his offense.” 438 U.S. at 604

24

n.12.

25
26
27
28

The Court here determines that, for two reasons, the Nevada Supreme Court’s
ruling was not an unreasonable application of Lockett.
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1

First, a fair-minded jurist could argue, as the Nevada Supreme Court noted, that

2

“Lisle was not precluded from presenting evidence of his vulnerability to the influence of

3

others.” Lisle, 941 P.2d at 475. The testimony of Sykes was offered and admitted in the

4

prosecution’s case. There is nothing in Lockett, or in Eddings or Skipper, or any other

5

Supreme Court precedent as far as this Court is aware, requiring the prosecution to

6

introduce mitigating evidence. Lisle does not show that the trial court precluded the jury

7

from considering any mitigating evidence that he proffered. See Lockett, 438 U.S. at 604

8

(applying rule to evidence “that the defendant proffers as a basis for a sentence less than

9

death”) (emphasis added).

10

Second, a fair-minded jurist could argue that the Nevada Supreme Court was

11

correct in its ruling that, at any rate, the omitted portion of Sykes’s testimony was not

12

relevant to the question of whether Lisle was vulnerable to the influence of others. This is

13

because the unredacted testimony of Sykes was only that Lisle was ordered not to

14

associate with Lopez; Sykes did not say why that was. The evidence that Lisle was

15

ordered not to associate with Lopez does not necessarily provide any evidence that Lisle

16

was vulnerable to Lopez’s influence. As the Nevada Supreme Court put it:

17
18
19
20

Further, her testimony does not state that Lopez was a bad influence on
Lisle; rather, it could easily be interpreted as Lisle being a bad influence on
Lopez. This is especially noteworthy in light of testimony during the guilt
phase that Lopez was very quiet and often not present for conversations in
which Lisle participated regarding obtaining drugs or killing Justin.
Lisle, 941 P.2d at 475.

21

This Court concludes that Lisle’s Claim 16D fails under the AEDPA standard. The

22

Nevada Supreme Court’s ruling was not an objectively unreasonable application of

23

Lockett, Eddings, Skipper, or any other Supreme Court precedent cited by Lisle.

24

In Claim 16E, Lisle claims that, in his joint trial with Lopez, admission of evidence

25

of Lopez’s alibi defense prejudiced Lisle. (ECF No. 292 at 375-76.) In Claim 16F, Lisle

26

claims that, in the penalty phase of his joint trial with Lopez, his federal constitutional

27
28

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1

rights were violated because he was denied an individualized sentencing determination.

2

(Id. at 376-80.) Lisle did not assert either of these claims as grounds for relief based on

3

federal law on either his direct appeal or the appeal in his first state habeas action. (ECF

4

Nos. 186-23, 188-2.) In the May 6, 2022, order to show cause, the Court ordered Lisle to

5

show cause as to why Claims 16E and 16F should not be denied as procedurally

6

defaulted. (ECF No. 474.) In response to the order to show cause, Lisle concedes that

7

these claims were not raised as independent claims on his direct appeal or in his first

8

state habeas action. (ECF No. 477 at 9-10.) And in that response, Lisle made no attempt

9

to show that he can overcome the procedural default of these claims. (Id.) The Court

10

determines that Claims 16E and 16F are procedurally defaulted, and the Court will deny

11

relief on these claims on that ground.

12

In Claim 16G, Lisle claims that his trial counsel were ineffective with respect to

13

their handling of the issue of severance of his trial from Lopez’s trial. (ECF No. 292 at

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380-81.) In the order resolving Respondents’ motion to dismiss, the Court ruled that this

15

claim is procedurally defaulted, but that, because it is a claim of ineffective assistance of

16

trial counsel, Lisle could possibly overcome the procedural default under Martinez. (ECF

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No. 317 at 44-45.) The claim, however, is completely conclusory. The entire claim is

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stated in Lisle’s fourth amended petition as follows:

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22

To the extent that trial . . . counsel failed to raise this issue in the
state courts that previously heard this matter, their defective assistance
deprived Mr. Lisle of his state and federal due process and equal protection
right to effective assistance of counsel . . . as guaranteed by the Fifth, Sixth,
Eighth and Fourteenth Amendments to the Constitution. Competent
counsel would have objected to this issue at trial . . . Mr. Lisle is entitled to
relief.

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(ECF No. 292 at 380-81.) Trial counsel did “object to this issue at trial,” by filing a pretrial

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motion to sever, by moving for a mistrial based on Prince’s testimony, and by objecting

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to the redaction of Sykes’s testimony, as discussed above; Lisle does not state in his

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fourth amended petition what more counsel should have done. (Id.) Lisle did not address

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21

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this claim at all in his reply to Respondents’ answer. (ECF No. 329.) The Court determines

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that this claim of ineffective assistance of trial counsel is insubstantial, and that, therefore,

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Lisle does not overcome the procedural default of the claim under Martinez. The claim of

4

ineffective assistance of trial counsel in Claim 16G will be denied as procedurally

5

defaulted.

6

Also, in Claim 16G, Lisle claims that “[c]onsidered singly or in combination with the

7

other constitutional errors identified in this petition, the failure to sever Mr. Lisle’s trial from

8

that his codefendant had a substantial and injurious effect on Mr. Lisle’s conviction and

9

death sentence.” (ECF No. 292 at 380.) However, as is discussed above, the Court does

10

not find there to have been any constitutional error as alleged in Claim 16, so there are

11

no such errors to be considered cumulatively, and this claim fails. The cumulative-error

12

claim in Claim 16G will be denied.

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F.

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Claim 28 is another, more broad, cumulative error claim. In Claim 28, Lisle claims:

15

Mr. Lisle’s conviction and death sentence are invalid under the
constitutional guarantees of due process, equal protection, effective
assistance of counsel, a fair tribunal, an impartial jury, and a reliable
sentence 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.

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17
18
19

Cumulative Error (Claim 28)

(Id. at 455 (citing U.S. Const. amends. V, VI, VIII, and XIV).)

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The Court does not in this order find there to have been any constitutional error,

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so there are no such errors to be considered cumulatively, and this claim fails. The

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cumulative-error claim in Claim 28 will be denied.

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G.

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In Claim 22B, Lisle claims that lethal injection, as it would be carried out in his case,

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Lethal Injection (Claim 22B)

in Nevada, would violate the federal constitution. (Id. at 412-21.)

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27
28

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Respondents argue that this claim is unripe. (ECF No. 318 at 67.) The Court

2

agrees. This claim is not ripe because it is impossible at this time to know what Nevada’s

3

lethal execution protocol will be when Lisle’s execution becomes imminent. See Floyd v.

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Filson, 949 F.3d 1128, 1152-53 (9th Cir. 2020) (“We cannot determine what drugs

5

Nevada might attempt to use to execute Floyd, and we cannot adjudicate the

6

constitutionality of an unknown protocol”); see also Beardslee v. Woodford, 395 F.3d

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1064, 1069-70 (9th Cir. 2005) (“[T]he precise execution protocol is subject to alteration

8

until the time of execution”); Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568,

9

580 (1985) (Ripeness is “peculiarly a question of timing;” its “basic rationale is to prevent

10

the courts, through premature adjudication, from entangling themselves in abstract

11

disagreements”) (internal quotation marks and citations omitted). Claim 22B will be

12

dismissed on the ground that it is not ripe.

13

Lisle requests an evidentiary hearing on this claim. (ECF No. 337 at 6-7.) As this

14

claim is not ripe—it is unknown at this time what protocol the State would use to execute

15

Lisle—factual development of this claim at this time would be a waste of judicial

16

resources, would cause delay in the resolution of the remainder of Lisle’s habeas petition,

17

and would generally be inappropriate. The Court will deny this request for an evidentiary

18

hearing.

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H.

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In Claim 29, Lisle claims that his conviction and death sentence violate the federal

21

constitution “because he may become incompetent to be executed.” (ECF No. 292 at

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457.) Lisle’s claim, in its entirety, is as follows:

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Competence to Be Executed (Claim 29)

Mr. Lisle does not, at this time, assert that he is incompetent to be
executed. Mr. Lisle alleges that he may become incompetent before the
execution is carried out.
Under Ninth Circuit authority, it appears that a claim anticipating
incompetence to be executed must be raised in an initial federal petition for
writ of habeas corpus to be preserved for later review. See Martinez82

Case 2:03-cv-01006-MMD-DJA Document 479 Filed 08/29/22 Page 83 of 84

Villareal v. Stewart, 118 F.3d 628, 634 (9th Cir. 1997), aff. sub nom. Stewart
v. Martinez-Villareal, 523 U.S. 637 (1998).

1
2

Mr. Lisle hereby asserts this claim pursuant to Martinez-Villareal in
order to avoid implication that this claim has been waived in later federal
proceedings. See 118 F.3d at 634.

3
4

(Id.)

5

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

6

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

7

that his execution is based on a conviction for murder. However, for purposes of a Ford

8

claim, the determination whether the petitioner is incompetent cannot be made until an

9

execution warrant is issued, making his execution imminent. See Martinez-Villareal, 118

10

F.3d at 630 (citing Herrera v. Collins, 506 U.S. 390, 406 (1993)). Claim 29 is not ripe, and

11

it will be dismissed on that ground.

12

I.

Motion for Evidentiary Hearing

13

In his motion for evidentiary hearing (ECF No. 337), Lisle requests an evidentiary

14

hearing regarding his claims of ineffective assistance of trial counsel in Claims 1 and 8H,

15

and his claim in Claim 22B that lethal injection, as it would be carried out in Nevada, is

16

unconstitutional. As is discussed above, in Parts III.B.1., III.B.2., III.B.3., III.B.4., and IIIG,

17

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

18

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

19

J.

20

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

21

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

22

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

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25
26
27
28

Certificate of Appealability

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

3

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

4

1077-79 (9th Cir. 2000).

1

5

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

6

appealability is warranted with respect to Claim 16A. The Court will grant Lisle a certificate

7

of appealability with regard to that claim. Beyond that, the Court will deny Lisle a certificate

8

of appealability.

9

IV.

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11
12
13
14
15

CONCLUSION
It is therefore ordered that Petitioner’s Motion for Evidentiary Hearing (ECF No.

337) is treated as renewed and is denied.
It is further ordered that Claims 22B and 29 of Petitioner’s Fourth Amended Petition
for Writ of Habeas Corpus (ECF No. 292) are dismissed, as those claims are not ripe.
It is further ordered that Petitioner’s Fourth Amended Petition for Writ of Habeas
Corpus (ECF No. 292) is denied.

16

It is further ordered that Petitioner is granted a certificate of appealability with

17

respect to Claim 16A of his Fourth Amended Petition for Writ of Habeas Corpus (ECF No.

18

292). As to all other issues, the Court denies Petitioner a certificate of appealability.

19

The Clerk of Court is directed to enter judgment accordingly.

20

DATED THIS 29th Day of August 2022.

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23

MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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