This is an appeal from a district court order denying a post-conviction petition for a writ of habeas corpus. Appellant Lawrence Colwell, Jr., faces a death sentence. He contends for various reasons that the district court erred in denying his habeas petition without holding an evidentiary hearing. We conclude that this contention lacks merit. He also contends that his sentencing by a three-judge panel violated his Sixth Amendment right to a jury trial under a recent United States Supreme Court decision, Ring v. Arizona.
On March 10, 1994, appellant Lawrence Colwell and his girlfriend, Merillee Paul, robbed and murdered a seventy-six-year-old man at the Tropicana Hotel in Las Vegas. Paul went with the victim to his room on the pretext of having sex with him. She then let Colwell into the room. He handcuffed and strangled the victim with a belt.
Colwell and Paul made their way to Oregon, where Paul turned herself in to authorities. She eventually agreed to plead guilty to first-degree murder and testify against Colwell; in exchange, the State recommended she receive a sentence of life with the possibility of parole.
After Colwell was arrested and arraigned, the State informed the district court it would not be seeking the death penalty. However, Colwell offered to plead guilty to all charges if the State changed its position and sought the death penalty. The State agreed and filed a notice of intent to seek death. Colwell also sought to represent himself. After canvassing Colwell on the matter, the court allowed him to represent himself but appointed standby counsel.
Colwell pleaded guilty to murder in the first degree, burglary, and robbery of a victim 65 years of age or older. He requested that the penalty hearing be conducted as soon as possible. During a two-day penalty hearing before a three-judge panel, Colwell did not conduct meaningful cross-examination of the State's witnesses and even attempted to elicit damaging evidence not presented by the prosecution. He made no objections to the State's evidence and refused to introduce any mitigating evidence. During closing argument, the State argued the existence of seven aggravating factors and the nonexistence of any mitigating evidence. Colwell asked that he be put to death. Before returning a sentence, the panel gave Colwell another chance to introduce mitigating evidence; he declined. The panel found four aggravating circumstances, found no mitigating circumstances, and sentenced Colwell to death.
This court affirmed his conviction and sentence.
I. The district judge had jurisdiction to consider appellant's habeas petition
In supplemental points and authorities, Colwell claims that District Judge Donald
Colwell failed to raise this claim with the district court, and we need not address it absent a showing of cause for the failure and prejudice.
II. The district court did not err in denying appellant post-conviction habeas relief
A petitioner for post-conviction relief cannot rely on conclusory claims for relief but must make specific factual allegations that if true would entitle him to relief.
Colwell contends that his trial attorneys were ineffective (before he was allowed to represent himself) because they did not have him psychologically evaluated and did not inform the district court that he suffered from prior serious mental instabilities. To establish ineffective assistance of counsel, a defendant must show that an attorney's representation fell below an objective standard of reasonableness and that the attorney's deficient performance prejudiced the defense.
In rejecting this claim, the district court relied on affidavits obtained from Colwell's former attorneys after he filed his habeas petition. This was improper. Such expansion of the record is allowed only if the court decides to conduct an evidentiary hearing.
Colwell also challenges the adequacy of the district court's canvass under Faretta v. California
Colwell further faults his trial attorneys for not filing appropriate pretrial motions. This claim remains conclusory; he does not show that any of the motions would have been meritorious. So again he fails to provide specific allegations and argument that would warrant relief. Moreover, he neglects to reconcile his present call for pretrial action by his attorneys with his prior decision to forgo counsel and represent himself.
Next, Colwell asserts that the three-judge panel that sentenced him did not make an independent and objective analysis of all the relevant evidence to determine if mitigating circumstances existed. He says that this was error under Hollaway v. State.
Colwell also states no cause why we should consider his remaining grounds for habeas relief, which were either already decided on direct appeal or could have been raised at trial or on direct appeal. We therefore decline to address the following claims:
III. Ring v. Arizona does not affect the validity of the three-judge panel's imposition of the death penalty in this case
On June 24, 2002, after briefing in this case was concluded, the United States Supreme Court issued an opinion in Ring v. Arizona holding that a capital sentencing scheme which places the determination of aggravating circumstances in the hands of a judge violates the Sixth Amendment right to a jury trial.
At issue in Ring was Arizona's capital sentencing scheme, in which, "following a jury adjudication of a defendant's guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty."
Colwell contends that Ring compels us to overturn his death sentence, which was determined by a three-judge panel. We disagree. We conclude both that Ring does not require retroactive application and that it is distinguishable on its facts since Colwell waived his right to a jury trial.
A. Ring does not apply retroactively
We decline to apply Ring retroactively on collateral review. In the following discussion, we address recent United States Supreme Court case law on retroactivity, adopt a new framework for retroactivity analysis in this state, and apply it to this case.
U.S. Supreme Court case law and retroactivity in Nevada
In regard to convictions like Colwell's which have become final before the promulgation of a new constitutional rule, "the Constitution neither prohibits nor requires retrospective effect."
We have followed the Supreme Court's earlier analysis in our own case law.
In Teague, the Supreme Court, instead of focusing on the purpose and impact of a new constitutional rule, looked to the function of federal habeas review, which is to ensure that state courts conscientiously follow federal constitutional standards. The Court determined that this function is met by testing state convictions against the constitutional law recognized at the time of trial and direct appellate review, since state courts can only be expected to follow the law existing at the time of their decisions. Applying the law existing at that time also promotes finality in criminal prosecutions. Therefore, once a conviction has become final, federal habeas courts should generally not interfere with the state courts by applying new rules retroactively. The Court recognized two exceptions to this general requirement of nonretroactivity.
The first exception is a new rule placing "certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe."
Teague is not controlling on this court, other than in the minimum constitutional protections established by its two exceptions. In other words, we may choose to provide broader retroactive application of new constitutional rules of criminal procedure than Teague and its progeny require. The Supreme Court has recognized that
The policy concerns behind Teague are partly germane to collateral review by this and other state courts and partly not. We share the concern that the finality of convictions not be unduly disturbed, but the need to prevent excessive interference by federal habeas courts has no application to habeas review by state courts themselves. And even the effect on finality is not as extreme when a state appellate court, as opposed to a federal court, decides to apply a rule retroactively: first, the decision affects only cases within that state, and second, most state collateral review occurs much sooner than federal collateral review. In addition, we are concerned with encouraging the district courts of this state to strive for perspicacious, reasonable application of constitutional principles in cases where no precedent appears to be squarely on point.
Though we consider the approach to retroactivity set forth in Teague to be sound in principle, the Supreme Court has applied it so strictly in practice that decisions defining a constitutional safeguard rarely merit application on collateral review. First, the Court defines a "new rule" quite expansively. In Teague, the Court originally stated that "a case announces a new rule when it breaks new ground or imposes a new obligation on the States" or "if the result was not dictated by precedent."
We appreciate that strictly constraining retroactivity serves the Supreme Court's purpose of circumscribing federal habeas review of state court decisions, but as a state court we choose not to bind quite so severely our own discretion in deciding retroactivity. We therefore choose to adopt with some qualification the approach set forth in Teague. We adopt the general framework of Teague, but reserve our prerogative to define and determine within this framework whether a rule is new and whether it falls within the two exceptions to nonretroactivity (as long as we give new federal constitutional rules at least as much retroactive effect as Teague does).
Thus, consistent with the Teague framework, we will not apply a new constitutional
When a rule is new, it will still apply retroactively in two instances: (1) if the rule establishes that it is unconstitutional to proscribe certain conduct as criminal or to impose a type of punishment on certain defendants because of their status or offense; or (2) if it establishes a procedure without which the likelihood of an accurate conviction is seriously diminished. These are basically the exceptions defined by the Supreme Court. But we do not limit the first exception to "primary, private individual" conduct, allowing the possibility that other conduct may be constitutionally protected from criminalization and warrant retroactive relief. And with the second exception, we do not distinguish a separate requirement of "bedrock" or "watershed" significance: if accuracy is seriously diminished without the rule, the rule is significant enough to warrant retroactive application.
We feel that this adaptation of the approach taken in Teague and its progeny provides us with a fair and straightforward framework for determining retroactivity.
An overview of retroactivity analysis and its application to appellant's case
A court's determination of retroactivity in this state, therefore, requires the following analysis. The first inquiry for the court is whether the constitutional rule of criminal procedure under consideration is new. Retroactivity is an issue only when a rule is new. If a rule is not new, then it applies even on collateral review of final cases.
If the rule is indeed new, the second inquiry is whether the conviction of the person seeking application of the rule has become final. A conviction becomes final when judgment has been entered, the availability of appeal has been exhausted, and a petition for certiorari to the Supreme Court has been denied or the time for such a petition has expired.
If the person's conviction has become final, a new rule generally does not apply retroactively. So the third inquiry is whether either exception to nonretroactivity pertains. Did the rule establish that it is unconstitutional to proscribe certain conduct as criminal or to impose a type of punishment on certain defendants because of their status or offense? Or did it establish a procedure without which the likelihood of an accurate conviction is seriously diminished? If the answer to either question is yes, then the rule applies.
In Colwell's case, our first inquiry is whether the constitutional rule of criminal
Next, we must determine whether Colwell's conviction was final before Ring was published earlier this year. It clearly was: after this court affirmed Colwell's conviction on appeal, the Supreme Court denied certiorari in 1998.
Ring did not forbid either the criminalization of any conduct or the punishment in any way of any class of defendants, so only the second exception arguably applies. Ring established that jurors, not judges, must make any factual findings necessary for imposition of the death penalty. Is this a procedure without which the likelihood of an accurate conviction—or, in this case, sentence—is seriously diminished? We conclude that it is not. The Supreme Court in Ring did not determine that factfinding by either juries or judges was superior in capital cases. In response to Arizona's suggestion that judicial factfinding might better protect against arbitrary imposition of the death penalty, the Court stated: "The Sixth Amendment jury trial right, however, does not turn on the relative rationality, fairness, or efficiency of potential factfinders."
We conclude that retroactive application of Ring on collateral review is not warranted.
B. Ring does not apply here because appellant waived his right to a jury trial
Alternatively, we conclude that Ring is not applicable to Colwell's case because, unlike Ring, Colwell pleaded guilty and waived his right to a jury trial.
The district court thoroughly canvassed Colwell at the time he entered his guilty plea. The court specifically asked him if he understood that "this matter will be submitted to a three-judge panel to determine the appropriate sentence regarding the count of murder,"
Ring concerned a defendant who pleaded not guilty and went to trial; it does not address waiver of the right to a jury trial. We do not read Ring as altering the legitimacy or effect of a defendant's guilty plea. The Supreme Court has held that the valid entry of a guilty plea in a state criminal court involves the waiver of several federal constitutional rights.
We affirm the district court's order denying Colwell's post-conviction petition for a writ of habeas corpus.
We express no opinion on the effect Ring might have if applied in a case where a capital defendant pleaded guilty but unsuccessfully sought to have a jury determine his sentence.