IN THE SUPREME COURT OF THE STATE OF NEVADA
THOMAS WAYNE CRUMP, No. 63346
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
MAR 2 5 2016
TRADE K. LINDEMAN
CLERK OF SUPREME COURT
BY-S
DEPUTY CL R
ORDER OF AFFIRMANCE
This is an appeal from an order of the district court denying
appellant Thomas Wayne Crump's postconviction petition for a writ of
habeas corpus. Eighth Judicial District Court, Clark County; Kathleen E.
Delaney, Judge.
Crump was convicted of robbery with the use of a deadly
weapon and first-degree murder with the use of a deadly weapon for
robbing and strangling Jodie Jameson in October 1980. He was sentenced
to death. This court affirmed his conviction and sentence. Crump v. State,
102 Nev. 158, 716 P.2d 1387 (1986). Crump unsuccessfully sought
postconviction relief in two prior petitions. Crump v. Warden, Docket No.
46033 (Order of Affirmance, November 29, 2006); Crump v. State, Docket
No. 18226 (Order Dismissing Appeal, August 31, 1988). Crump filed the
instant petition in the district court on September 11, 2008. The district
court dismissed the petition as procedurally barred and this appeal
followed.
Procedural bars
Crump's postconviction petition for a writ of habeas corpus is
subject to several procedural bars. The petition was untimely as it was
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filed more than one year after this court issued its remittitur on direct
appeal. NRS 34.726(1). 1 To the extent that the petition raised the same
claims that were raised in prior petitions, it was successive. NRS
34.810(2). To the extent that the petition raised new claims that could
have been litigated in a prior proceeding, it constituted an abuse of the
writ. NRS 34.810(1)(b). The petition was therefore procedurally barred
absent a demonstration of good cause and prejudice. NRS 34.726(1); NRS
34.810(1)(b), (3).
In addition, the State pleaded laches. Under NRS 34.800, a
petition may be dismissed if the delay in filing the petition prejudices the
State. NRS 34.800(1). Prejudice is presumed when a petition is filed five
years after a decision on direct appeal of a judgment of conviction. See
NRS 34.800(2). NRS 34.800 bars claims unless the petitioner can
demonstrate that he was reasonably diligent in discovering the facts
underlying his petition to overcome the presumed prejudice to the State in
responding to the petition, see NRS 34.800(1)(a), and that the failure to
consider the petition amounts to a fundamental miscarriage of justice to
overcome the presumed prejudice to the State in retrying the defendant,
see NRS 34.800(1)(b).
As cause to overcome the procedural default rules, Crump
contends that the ineffective assistance of prior counsel and intervening
'The petition was also filed more than one year after the effective
date of NRS 34.726. See 1991 Nev. Stat., ch. 44, § 33, at 92; see also
Pellegrini v. State, 117 Nev. 860, 874-75, 34 P.3d 519, 529 (2001).
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changes in the law provided him with good cause to raise the claims in the
instant petition. 2
Ineffective assistance of prior counsel
Crump contends that the district court erred in denying his
petition as procedurally barred bebause the ineffective assistance of
appellate and postconviction counsel provided him with good cause to
excuse the procedural bars. 3 We disagree. "[Flo constitute adequate
cause, the ineffective assistance of counsel claim itself must not be
procedurally defaulted." Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d
503, 506 (2003); see also Edward v. Carpenter, 529 U.S. 446, 452-53 (2000)
(concluding that claim of ineffective assistance of counsel cannot serve as
cause for another procedurally defaulted claim where ineffective-
2 Crump argues that the district court erred by relying upon
procedural default rules because this court applies them inconsistently
and in its discretion. Because this court has repeatedly rejected this
argument, see, e.g., State v. Eighth Judicial Dist. Court (Riker), 121 Nev.
225, 236, 112 P.3d 1070, 1077 (2005); Pellegrini, 117 Nev. at 886, 34 P.3d
at 536, we reject it here as well. Crump also contends that the district
court's decisions during the litigation of his first postconviction petition
provide good cause for his failure to raise claims sooner. These allegations
are insufficient to establish good cause as they should have been raised on
appeal from that decision. See NRS 34.810(1)(b); Hathaway, 119 Nev. at
252-53, 71 P.3d at 506.
3 Crump cites Martinez v. Ryan, 566 U.S. , 132 S. Ct. 1309 (2012),
in support of his contention that the ineffectiveness of postconviction
counsel denied him• a full and fair opportunity to litigate his prior
petitions. In Martinez, the United States Supreme Court recognized that
the ineffective assistance of state postconviction counsel may establish
good cause to avoid federal procedural default rules based on the failure to
assert claims in a state petition. Id. at , 132 S. Ct. at 1320. Martinez
does not apply to habeas petitions filed in state court. Brown v. McDaniel,
130 Nev., Adv. Op. 60, 331 P.3d 867, 874 (2014).
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assistance claim also is subject to procedural default). In other words, a
petition must demonstrate cause for raising the ineffective-assistance-of-
counsel claims in an untimely fashion. See NRS 34.726(1); Riker, 121 Nev.
at 235, 112 P.3d at 1077 (applying NRS 34.726 to ineffective assistance of
postconviction counsel claims); Pellegrini, 117 Nev. 860, 34 P.3d 519
(holding that the time bar of NRS 34.726 applies to successive petitions).
Crump failed to explain how appellate and postconviction
counsels' alleged deficiencies precluded him from filing his third petition
until over 32 years after the resolution of his direct appeal and roughly 30
years after the order dismissing the appeal from the district court's denial
of his first postconviction petition. To the extent that he contends that
any procedural default should be excused due to second postconviction
counsel's ineffective assistance, he was not entitled to the effective
assistance of second postconviction counsel. See NRS 34.820(1) (requiring
appointment of counsel to represent capital petitioner on first petition);
Crump, 113 Nev. at 303, 934 P.2d at 253 (stating that "petitioner who has
counsel appointed by statutory mandate is entitled to the effective
assistance of that counsel"). Therefore, counsel's ineffectiveness, if any,
did not excuse any procedural default.
Intervening changes in the law
Crump argues that intervening changes in the law provide
good cause to excuse his untimely and successive petition. First, Crump
claims that the definition of premeditation relied upon in his case, as
defined by the Kazalyn instruction, 4 was erroneous under Byford and Hemn
4Kazalynv. State, 108 Nev. 67, 825 P.2d 578 (1992), prospectively
modified by Byford v. State, 116 Nev. 215, 236-37, 994 P.2d 700, 714
(2000).
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v. State, 97 Nev. 529, 635 P.2d 278 (1981). He contends that the Ninth
Circuit Court of Appeals' decision in Polk v. Sandoval, 503 F.3d 903 (9th
Cir. 2007), provides a basis for this court to revisit this claim. We
disagree. Crump's conviction was final roughly 14 years before this court
disapproved of the Kazalyn instruction and set forth instructions to use in
the future in Byford, and therefore, Byford does not apply. Moreover,
Byford did not alter the law in effect when Crump's conviction became
final; rather, it changed the law prospectively. And because that change
concerned a matter of state law, the Byford decision did not implicate
federal constitutional concerns. See Nika v. State, 124 Nev. 1272, 1284-85,
198 P.3d 839, 847-49 (2008). Therefore, Crump failed to demonstrate the
district court erred in concluding that Polk did not provide good cause to
excuse the procedural bars. To the extent that Crump relies on Hem, it
was decided before his conviction and therefore cannot support an
allegation of good cause for a petition filed 32 years after his conviction
became final. See Hathaway, 119 Nev. at 252-53, 71 P.3d at 506. 5
5Recently, the Ninth Circuit Court of Appeals decided Riley v.
McDaniel, 786 F.3d 719 (9th Cir. 2015), petition for cert. filed, No. 15-630
(U.S., Nov. 9, 2015). In Riley, the court concluded that prior to Powell v.
State, 108 Nev. 700, 838 P.2d 921 (1992), the Kazalyn instruction did not
accurately inform juries of the elements of first-degree murder but that
after the Powell decision, the Kazalyn correctly instructed juries on the
elements of first-degree murder until the By ford decision prospectively
changed the law. Id. at 723-24. Although we question the premise of the
decision in Riley, see Nika, 124 Nev. at 1280-87, 198 P.3d at 845-48
(discussing history of Nevada law on the phrase "willful, deliberate, and
premeditated," including Hem, and explaining that prior to By ford, this
court had not required separate definitions of the terms and had instead
viewed them as together conveying a meaning that was sufficiently
described by the definition of "premeditation" eventually approved in
continued on next page...
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Moreover, Crump admitted that the killing, by means of
strangulation, was premeditated. Crump v. State, 102 Nev. 158, 160, 716
P.2d 1387, 1388 (1986). Considering the time it took to strangle the victim
during the struggle and his admission, Crump failed to demonstrate that
he would not have been found guilty of first-degree murder had the Byford
instruction been given. See Cortinas v. State, 124 Nev. 1013, 1029, 195
P.3d 315, 326 (2008) ("[T]he use of a ligature and the time required to
strangle a person are legitimate circumstances from which to infer that a
killing is willful, deliberate, and premeditated."); Leonard v. State, 114
Nev. 1196, 1210-11, 969 P.2d 288, 297(1998) (providing that from the
medical testimony concerning the time it took to strangle the victim "Mlle
jury could reasonably infer from the evidence presented that the killing
was willful, deliberate, and premeditated"). Therefore, the district court
did not err in denying this claim as procedurally barred.
Second, Crump argues that this court's decision in Nay v.
State, 123 Nev. 326, 333, 167 P.3d 430, 435 (2007), in which we concluded
that "[robbery does not support felony murder where the evidence shows
that the accused kills a person and only later forms the intent to rob that
person," provides him with good cause to challenge the robbery
aggravating circumstance as invalid. He asserts that the robbery
aggravating circumstance does not apply when the accused only later
forms the intent to rob the person killed. We conclude that Crump has
failed to establish that Nay provides good cause to excuse his procedural
default. Nay focuses on the felony-murder rule's purpose, and the purpose
...continued
Kazalyn and Powell), Riley would not provide good cause as it relies on
Hem, which has been available for decades.
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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." Id. at 332, 167 P.3d at
434 (quoting State v. Allen, 875 A.2d 724, 729 (M.D. Ct. App. 2005)).
Although the general purpose of the death penalty is deterrence, the
aggravating circumstances serve an entirely different purpose—to
determine which defendants convicted of first-degree murder are eligible
for the death penalty NRS 175.554(3); NRS 200.030(4)(a). Given this
distinction in purpose, the district court did not err in denying Crump's
good-cause claim.
Moreover, Crump failed to demonstrate that the jury would
not have found the aggravating circumstance had it been instructed that
afterthought robbery could not support the aggravating circumstance.
The State argued that Crump used force or the threat of force to obtain the
victim's money and car keys. The evidence indicated that Crump intended
to rob the victim when he murdered her. See Norman v. Sheriff, Clark
Cty., 92 Nev. 695, 697, 558 P.2d 541, 542 (1976) ("Robbery is not confirmed
to a fixed locus, but is frequently spread over considerable and varying
periods of time."). Additional penalty hearing evidence established that
Crump routinely murdered or attempted to murder individuals for their
property. Therefore, the district court did not err in concluding that
Crump failed to demonstrate actual prejudice.
Fundamental miscarriage of justice
Crump argues that the district court erred in denying his
claims of actual innocence of first-degree murder and of the death penalty
When a petitioner cannot demonstrate good cause, the district court may
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nevertheless excuse a procedural bar if the petitioner demonstrates that
failing to consider the petition would result in a fundamental miscarriage
of justice. Pe//egrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
A fundamental miscarriage of justice requires "a colorable showing" that
the petitioner is "actually innocent of the crime or is ineligible for the
death penalty." Id. When claiming a fundamental miscarriage based on
actual innocence, the petitioner "must show that it is more likely than not
that no reasonable juror would have convicted him absent a constitutional
violation." Id. In this context, actual innocence means "factual innocence,
not mere legal insufficiency." Mitchell v. State, 122 Nev. 1269, 1273-74,
149 P.3d 33, 36 (2006) (internal quotation marks and citation omitted).
Similarly, when claiming a fundamental miscarriage based on ineligibility
for the death penalty, the petitioner "must show by clear and convincing
evidence that, but for a constitutional error, no reasonable juror would
have found him death eligible." Pellegrini, 117 Nev. at 887, 34 P.M at
537.
Actual innocence of first-degree murder
Crump argues that the district court's failure to consider his
claim that counsel was ineffective for failing to discover neurological
evidence amounted to a fundamental miscarriage of justice. He contends
that this evidence shows that he was unable to form the intent necessary
to convict him of first-degree murder.
In support of his claim, Crump submitted evidence showing
that he suffered from neurological impairments. Crump appeared to have
low-average intellectual functioning and could "be extremely impulsive in
the expression of anger." An evaluator concluded that Crump presented
with organic personality syndrome which rendered him "substantially
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unable to conform his conduct to the requirements of law, due to extreme
dyscontrol of impulsive anger secondary to disinhibition of the frontal-
executive-limbic inhibitory system." At the time he murdered Jameson, he
was likely in "extreme emotional duress as a direct consequence of his
brain damage/dysfunction."
We conclude that Crump failed to demonstrate that the
district court erred in denying this claim without holding an evidentiary
hearing. Even if the opinion, that Crump's impairments rendered him
unable to premeditate and deliberate, is credible, Crump did not "show
that it is more likely than not that no reasonable juror would have
convicted him beyond a reasonable doubt" given the• opinion. Berry v.
State, 131 Nev., Adv. Op. 96, at 14, P.3d (2015). The
circumstances of the crime and Crump's own confession contradicted this
opinion and showed that the murder was premeditated and Crump was
capable of premeditation. The preparation necessary to fill the tub and
bind Jameson in an attempt to drown her, as well as the time it took to
strangle her, suggested that the crime was a deliberate act, not a rash
impulse. See Cortinas, 124 Nev. at 1029, 195 P.3d at 326; Leonard, 114
Nev. at 1210-11, 969 P.2d at 297. Crump later stated, "I just wanted to
kill her . . . . I premeditated. I knew I was going to kill her and I did."
Crump, 102 Nev. at 160, 716 P.2d at 1388. Therefore, the district court
did not err in concluding, without conducting an evidentiary hearing, that
Crump failed to demonstrate that the failure to consider this claim would
result in a fundamental miscarriage of justice.
Ineligibility for the death penalty
Crump contends that there is a reasonable probability that the
jury would not have imposed the death penalty in light of the two invalid
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aggravating circumstances: robbery and depravity of mind. We disagree.
As discussed above, Crump failed to demonstrate that the robbery
aggravating circumstance was improperly found in his case. Because at
least one aggravating circumstance remains, Crump failed to demonstrate
that he was actually innocent of the death penalty. See Lisle v. State, 131
Nev., Adv. Op. 39, 351 P.3d 725, 732 (2015) (noting that gateway claim
that petitioner is actually innocent of the death penalty must focus on the
elements of the crime and the aggravating circumstances). Therefore, the
district court did not err in denying this claim.°
Having considered Grump's contentions and concluded that
they lack merit, we
ORDER the judgment of the district court AFFIRMED.
.J.
Parra guirre
ic--- LA Litlet\ , J.
Hardesty Douglas
\
/11\tit , J.
Saitta
bons
6 Crump also contends that the district court erred in rejecting his
claim of cumulative error. As he has failed to demonstrate good cause to
excuse the procedural defaults or to demonstrate a fundamental
miscarriage of justice, this claim does not afford him any relief.
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cc: Hon. Kathleen E. Delaney, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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