                            IN THE SUPREME COURT OF THE STATE OF NEVADA


                     TRAVERS ARTHUR GREENE,                                No. 55971
                     Appellant,
                     vs.
                     THE STATE OF NEVADA,                                        FILED
                     Respondent.
                                                                                 JUN 2 4 2016
                                                                               TRACE K LINDEMAN
                                                                            CLERK OF UPRENIE COURT
                                                                            BY   SDEPUTY CLERK
                                            ORDER OF AFFIRMANCE
                                 This is an appeal from an order denying appellant Travers
                     Arthur Greene's postconviction petition for a writ of habeas corpus.
                     Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
                                 Greene was convicted of conspiracy to commit murder, two
                     counts of first-degree murder with the use of a deadly weapon, and
                     possession of a stolen vehicle for travelling to Sunrise Mountain in a
                     stolen car and shooting two campers, Christopher Peyton and Deborah
                     Farris, in September 1994. He was sentenced to death. This court
                     affirmed his convictions and sentence.   Greene v. State, 113 Nev. 157, 931
                     P.2d 54 (1997). Greene unsuccessfully sought postconviction relief in a
                     prior petition. See Greene v. State, Docket No. 45023 (Order of Affirmance,
                     November 14, 2006). Greene filed the instant petition in the district court
                     on February 28, 2008. The district court denied the petition This appeal
                     followed.
                     Procedural bars
                                 Greene's postconviction petition for a writ of habeas corpus is
                     subject to several procedural bars. The petition was untimely as it was
                     filed more than one year after this court issued its remittitur on direct

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                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 ektent 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). As cause to overcome the procedural default rules,
                Greene contends that the State withheld evidence in violation of Brady v.
                Maryland, 373 U.S. 83 (1963), and that prior postconviction counsel
                provided ineffective assistance.
                            Brady violation
                            Greene argues that the district court erred in concluding that
                he failed to demonstrate good cause and prejudice based on his claim that
                the State withheld inducements offered to Anthony Fisher in exchange for
                his testimony. See State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003)
                ("Good cause and prejudice parallel the second and third             Brady
                components; in other words, proving that the State withheld the evidence
                generally establishes cause, and proving that the withheld evidence was
                material establishes prejudice."). We disagree. While the State had
                knowledge of its meetings with Fisher, it was not the exclusive repository
                of that information.   See Rippo v. State, 113 Nev. 1239, 1257, 946 P.2d
                1017, 1028 (1997) (noting that "a Brady violation does not result if the
                defendant, exercising reasonable diligence, could have obtained the
                information"). The record indicates that Fisher, his mother, and his

                      '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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                  girlfriend were present during the visits when Greene alleges that the
                  attorneys offered favorable treatment in exchange for Fisher's testimony.
                  Greene did not allege that an impediment external to the defense
                  prevented him from contacting these witnesses sooner. Moreover, he
                  failed to demonstrate that the additional impeachment evidence was
                  material for two reasons.   See Jimenez v. State, 112 Nev. 610, 619, 918
                  P.2d 687, 692 (1996) (noting that when there is a specific request for
                  evidence, materiality is satisfied if there is a reasonable possibility that
                  the omitted evidence would have affected the outcome of trial). First, he
                  did not demonstrate that the State offered Fisher an inducement to
                  testify. At the evidentiary hearing, Fisher denied having any expectation
                  of receiving favorable treatment from the State in exchange for his
                  testimony. The district court found this testimony credible While this
                  testimony contradicted his prior declaration, the district court was in the
                  best position to assess Fisher's credibility and that determination is
                  entitled to deference so long as it is supported by substantial evidence.
                  See Little v. Warden, 117 Nev. 845, 854, 34 P.3d 540, 546 (2001). Second,
                  even if Greene demonstrated the existence of an inducement, this
                  additional impeachment evidence would not have altered the outcome at
                  trial. Greene's admission to Fisher that he killed the victims was
                  persuasive, but not indispensable, evidence. Witnesses saw Greene steal
                  the murder weapon and hide it and one witness saw Greene murder the
                  victims. In addition, Greene admitted involvement in the killings to two
                  other witnesses. Therefore, the district court did not err in denying this
                  claim. 2



                         2 Greene   also argues that the district court erred in limiting
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                                Ineffective assistance of postconviction counsel
                                Greene contends that the district court erred in denying his
                    claims that postconviction counsel was ineffective for failing to challenge
                    trial counsel's failure to investigate and present mitigation evidence and
                    challenge evidence introduced by the State during sentencing. The
                    ineffective assistance of postconviction counsel may establish cause and
                    prejudice to file a second postconviction petition where, as here, the
                    appointment of counsel was mandated by statute.       See Rippo v. State, 132
                    Nev., Adv. Op. 11, at 9, P.3d , (2016); Crump v. Warden, 113
                    Nev. 293, 304-05, 934 P.2d 247, 254 (1997). Although his postconviction-
                    counsel claims are subject to the time limit set forth in NRS 34.726(1),
                    State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 235, 112 P.3d
                    1070, 1077 (2005), and they therefore had to be raised within a reasonable
                    time after they became available, Hathaway v. State, 119 Nev. 248, 252-
                    53, 71 P.3d 503, 506 (2003), Greene's claims of ineffective assistance of
                    postconviction counsel were not available until this court affirmed the
                    district court order denying his first postconviction petition.   Rippo, 132
                    Nev., Adv. Op. 11, P.3d. at . Because the petition was filed within
                    one year of the issuance of remittitur from this court's decision affirming
                    the denial of Greene's first postconviction petition, we conclude that his


                    ...continued
                    discovery and denying his request to call additional witnesses at the
                    evidentiary hearing. As he failed to demonstrate that this evidence was
                    material, the district court did not abuse its discretion in denying Greene's
                    request to call further witnesses related to this claim.         See generally
                    Mitchell v. State,   124  Nev.  807,  813-16,  192  P.3d  721, 725-27  (2008)
                    (recognizing that court's actions pursuant to its inherent authority are
                    reviewed for abuse of discretion).

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                 petition asserting postconviction counsel claims as good cause for filing a
                 second petition was filed within a reasonable time. Id.
                             Greene must demonstrate that his postconviction counsel's
                 performance was deficient for failing to raise the underlying claims of
                 ineffective assistance of trial counsel in his prior petition, and that
                 prejudice resulted. See Rippo, 132 Nev., Adv. Op. 11, at 20-22, P.3d at
                       (adopting   Strickland    analysis for ineffective assistance of
                 postconviction counsel claims); see also Crump, 113 Nev. at 304-05, 934
                 P.2d at 254. Both deficiency and prejudice must be shown, Rippo, 132
                 Nev., Adv. Op. 11, at 20-22, P.3d at , and the petitioner must
                 demonstrate the underlying facts by a preponderance of the evidence,
                 Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We give
                 deference to the district court's factual findings if supported by substantial
                 evidence and not clearly erroneous but review the court's application of
                 the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120
                 P.3d 1164, 1166 (2005).
                             First, Greene contends that postconviction counsel was
                 ineffective for failing to assert that trial counsel should have obtained or
                 introduced mitigation evidence at trial that included his mental health
                 records, expert testimony regarding his mental state and drug intoxication
                 at the time of the offense, expert testimony regarding the criminogenic
                 effects of the California Youth Authority (CYA), testimony and records
                 concerning his prior molestation, testimony about physical abuse that
                 Greene suffered, and other sources concerning his drug intoxication. We
                 conclude that Greene failed to demonstrate that the additional evidence
                 would have altered the outcome of trial and thus form the basis of a
                 successful trial-counsel claim. The jury found two aggravating

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                  circumstances with regard to each murder: the murder was committed at
                  random and without apparent motive and Greene was convicted of more
                  than one count of first-degree murder at trial. These are compelling
                  aggravating circumstances. Greene killed two random strangers merely
                  because he wanted to experiment with a stolen firearm. The jury was also
                  aware that Greene began his criminal career as a teen and his behavior
                  escalated from petty to violent crimes. He was even involved in two
                  shootings in one night roughly two months before the murders.
                              The additional mitigation evidence is not powerful enough to
                  mitigate the instant crimes. The new evidence concerning Greene's sexual
                  abuse is potent; however, the jury was already aware that he had been
                  repeatedly molested and did not find that evidence mitigating. As the jury
                  did not find the evidence of his sexual abuse mitigating, it is not likely
                  that it would have found the new evidence of physical abuse more
                  persuasive. Greene's evidence of psychological conditions, impulse control
                  problems, and phencyclidine (PCP) abuse is rendered less compelling by
                  the fact that the crimes do not appear to be the product of a rash act.
                  Instead, after Greene and Leonard Winfrey discovered the victims' car,
                  Greene approached the victims quietly, shot Peyton while he slept, cleared
                  a jam in the assault rifle, and shot Farris as she pleaded for her life.
                  Notably, in his post-arrest statement, Greene denied that he was
                  intoxicated by PCP at the time of the crime. Therefore, the district court
                  did not err in concluding that postconviction counsel was not ineffective as
                  trial counsel's decision to not introduce this evidence could have been the
                  result of reasonable trial strategy.
                              Second, Greene contends that postconviction counsel was
                  ineffective for not asserting a claim that trial counsel should have objected

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                 to the introduction of his prior juvenile convictions during the penalty
                 phase of trial under Roper v. Simmons, 543 U.S. 551 (2005). We disagree.
                 Roper was not decided until after the district court denied Greene's first
                 petition. Therefore, Greene's counsel could not have litigated this claim
                 during the pendency of the first petition. Further, Greene failed to
                 demonstrate prejudice.     Roper proscribed the imposition of the death
                 penalty on juvenile offenders, 543 U.S. at 568, but it did not speak to the
                 evidence admissible during a capital penalty hearing, Johnson v. State,
                 122 Nev. 1344, 1353, 148 P.3d 767, 774 (2006). 3
                 Law-of-the-case doctrine
                              Greene contends that the district court erred in denying his
                 claim regarding the premeditation-and-deliberation instruction as barred
                 by the law-of-the-case doctrine. "When an appellate court states a
                 principle or rule of law necessary to a decision, the principle or rule
                 becomes the law of the case and must be followed throughout its
                 subsequent progress, both in the lower court and upon subsequent
                 appeal." Wickliffe v. Sunrise Hospital, 104 Nev. 777, 780, 766 P.2d 1322,
                 1324 (1988). This court has the discretion to "revisit the wisdom of its
                 legal conclusions when it determines that further discussion is
                 warranted," Pellegrini ix State, 117 Nev. 860, 885, 34 P.3d 519, 535-36

                       3 We reject Greene's claim that the district court erred by denying his
                 claim of cumulative error, as that claim added several assertions of
                 ineffective assistance of trial counsel and trial error that should have been
                 raised on direct appeal or in his prior postconviction petition and he has
                 not demonstrated good cause or prejudice to overcome the procedural
                 default. To the extent that Greene's cumulative-error claim relies on
                 claims that supported a previous cumulative-error claim, further
                 consideration is barred by the law-of-the-case doctrine. See Hall V. State,
                 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975).

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                    (2001), and may 'depart from our prior holdings only where we determine
                    that they are so clearly erroneous that continued adherence to them would
                    work a manifest injustice,' Hsu v. County of Clark, 123 Nev. 625, 631, 173
                    P.3d 724, 729 (2007) (quoting Clem v. State, 119 Nev. 615, 620, 81 P.3d
                    521, 525 (2003)).
                                 Greene argues that the Ninth Circuit Court of Appeals'
                    decision in Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), provided a basis
                    for this court to revisit his challenge to the premeditation-and-deliberation
                    instruction (the Kazalyn 4 instruction). Greene contends that the
                    instruction was erroneous under Byford.            We disagree. Greene's
                    conviction was final over two 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. See Nika v. State, 124 Nev.
                    1272, 1284-85, 198 P.3d 839, 847-49 (2008). Moreover, Byford did not
                    alter the law in effect when Greene's conviction became final; rather, it
                    changed the law prospectively. And because the change concerned a
                    matter of state law, the Byford decision did not implicate federal
                    constitutional concerns. See id. Therefore, Greene failed to demonstrate
                    that a continued adherence to the prior ruling would work a manifest
                    injustice in this case. 5


                          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).

                          5 We reject Greene's claim that the district court erred in denying his
                    challenges concerning the at-random aggravating circumstance, the
                    administration of anti-psychotic medication during trial, the ineffective
                    assistance of appellate counsel, and cumulative error because he merely
                    reargues the merits of these claims and he has not pointed to any
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                      Fundamental miscarriage of justice
                                  Greene contends that he is actually innocent of first-degree
                      murder due to trial counsel's failure to investigate and present evidence of
                      his mental impairments and drug intoxication at the time of the murders.
                                  When a petitioner cannot demonstrate good cause, the district
                      court may nonetheless excuse a procedural bar if the petitioner
                      demonstrates that failure to consider the petition would result in a
                      fundamental miscarriage of justice. Pellegrini, 117 Nev. at 887, 34 P.3d at
                      537. A fundamental miscarriage of justice requires "a colorable showing"
                      that the petitioner is "actually innocent of the crime," id., meaning "factual
                      innocence, not mere legal insufficiency," Mitchell v. State, 122 Nev. 1269,
                      1273-74, 149 P.3d 33, 36 (2006) (internal quotation marks and alteration
                      omitted). This requires the petitioner to present new evidence of his
                      innocence. See House v. Bell, 547 U.S. 518, 537 (2006) ("[A] gateway claim
                      requires 'new reliable evidence—whether it be exculpatory scientific
                      evidence, trustworthiness eyewitness accounts, or critical physical
                      evidence—that was not presented at trial." (quoting Schlup v. Delo, 513
                      U.S. 298, 324 (1995))); Schlup, 513 U.S. at 316 ("Without any new
                      evidence of innocence, even the existence of a concededly meritorious
                      constitutional violation is not in itself sufficient to establish a miscarriage
                      of justice that would allow a habeas court to reach the merits of a barred
                      claim."). The petitioner "must show that it is more likely than not that no
                      reasonable juror would have convicted him absent a constitutional


                      ...continued
                      authority since the denial of his prior petition that necessitates a
                      departure from this court's prior holdings. See Hsu, 123 Nev. at 630, 173
                      P.3d at 728-29; Pellegrini, 117 Nev. at 885, 34 P.3d at 535-36.


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                violation."   Pellegrini, 117 Nev. at 887, 34 P.3d at 537. In deciding
                whether the petitioner has made that showing, the court must consider
                the petitioner's claimed innocence in light of all the evidence—both the
                new and the old. See Berry v. State, 131 Nev., Adv. Op. 96, 363 P.3d 1148,
                1155-56 (2015).
                              We conclude that Greene failed to make a "colorable showing"
                of actual innocence. The psychological evaluation indicated that Greene
                was not able to regulate his impulsivity. In addition, as his particular
                psychological issues rendered him more susceptible to adverse effects from
                drug abuse, the evaluation concluded that the murders may have been the
                result of delusional or hallucinatory experience from a combination of his
                chronic methamphetamine abuse and PCP intoxication or the result of
                impulsive violence associated with PCP usage. In contrast, the evidence
                produced at trial strongly supports a conclusion that the murder was
                premeditated and deliberate. After gaining possession of the assault rifle,
                Greene wanted to shoot it. After shooting it, Greene wanted to know what
                the bullets would do if they struck something. While out shooting, Greene
                directed his friend to stop the car near the victims, walked over to the
                sleeping victims, and shot Peyton as he slept. When he attempted to
                murder Farris as she pleaded for her life, the firearm malfunctioned.
                Greene had the presence of mind to clear the malfunction and shoot her.
                Based on the total record, the district court did not err in concluding that
                Greene failed to demonstrate that it was more likely than not that no
                reasonable juror would have convicted him absent the failure to introduce
                the new evidence.




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                Full and fair opportunity to litigate
                               Greene contends that he did not have a full and fair
                opportunity to litigate his postconviction petition because the district court
                was biased against capital postconviction petitioners. He also asserts that
                the district court improperly limited testimony and denied discovery.
                      Bias
                               Greene asserts that the district court erred in denying his
                motions to disqualify the district court. He contends that the district
                court's refusal to provide him with a full and fair opportunity to litigate
                his claims, coupled with Judge Donald Mosley's pattern and practice of
                denying other capital petitioners a full and fair opportunity to litigate
                their claims, demonstrates the habeas court's bias against him.
                               We conclude that Greene's contention lacks merit. Many of
                the cases that he has cited do not indicate that Judge Mosley "closed his [
                mind to the presentation of all the evidence," Cameron v. State, 114 Nev.
                1281, 1283, 968 P.2d 1169, 1171 (1998), but merely show that Judge
                Mosley attempted to implement procedures for the efficient consideration
                of postconviction petitions. While Judge Mosley was disqualified from
                another case out of an abundance of caution, Greene has not cited any
                language used during his current litigation that shows that Judge Mosley
                closed his mind to the presentation of the evidence or otherwise "reveal[ed]
                such a high degree of favoritism or antagonism as to make fair judgment
                impossible."     Liteky v. United States,    510 U.S. 540, 555 (1994). Judge
                Mosley's comments in the present litigation evidence a desire to limit the
                issues to be presented at subsequent evidentiary hearings.          See In re
                Petition to Recall Dunleavy, 104 Nev. 784, 789-90, 769 P.2d 1271, 1275
                (1988) (noting that the "rulings and actions of a judge during the course of
                official judicial proceedings do not establish legally cognizable grounds for
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                 disqualification," but "personal bias necessary to disqualify must 'stem
                 from an extrajudicial source and result in an opinion on the merits on
                 some basis other than what the judge learned from his participation in the
                 case." (quoting United States v. Beneke, 449 F.2d 1259, 1260-61 (8th Cir.
                 1971))). Therefore, the district court did not err in denying the motions to
                 disqualify.
                               Denial of full and fair opportunity to litigate
                               Greene contends that Judge Mosley denied him a fair
                 opportunity to litigate his postconviction petition by improperly
                 preventing him from calling witnesses or developing evidence. 6
                               First, Greene contends that the district court improperly
                 limited the testimony of his postconviction counsel by directing the
                 examination, cutting the examination short, and refusing requests to
                 admit a declaration from postconviction counsel and testimony from trial
                 counsel. We discern no abuse of discretion in limiting his presentation of
                 evidence. See generally Mitchell v. State, 124 Nev. 807, 813-16, 192 P.3d
                 721, 725-27 (2008) (recognizing that a court's actions pursuant to its
                 inherent authority, are reviewed for abuse of discretion); Young v. District
                 Court, 107 Nev. 642, 646, 818 P.2d 844, 846 (1991) (recognizing a court's
                 inherent power "to control proceedings before it"). By having current
                 counsel ask prior counsel collectively whether she had any strategic
                 reason for failing to discover and present evidence during the first habeas
                 proceeding, the district court acted reasonably to avoid a lengthy


                       6 To the extent Greene claims that district court denied him a full
                 and fair opportunity to litigate his first postconviction proceeding, that
                 claim is procedurally barred as it should have been litigated in the appeal
                 taken from the denial of his first petition. NRS 34.810(1)(b)(2).


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                 repetitive hearing. Similarly, the district court's order requiring a
                 memorandum of issues to guide subsequent evidentiary hearings
                 furthered the court's goal of efficiently using its time by allowing it to
                 review relevant records prior to the hearing, as Greene's counsel even
                 acknowledged. Moreover, the district court had previously ruled that trial
                 counsel's decision not to present evidence of Greene's mental state or drug
                 intoxication was part of a reasoned trial strategy because counsel
                 concluded the evidence was more damaging than helpful. Therefore, the
                 district court's refusal to allow additional evidence did not deny Greene a
                 full and fair opportunity to litigate.
                              Second, Greene argues that the district court denied him a full
                 and fair opportunity to litigate the petition by failing to rule on a discovery
                 motion seeking to depose witnesses and disclose records related to
                 Greene's intoxication at the time of the crime, the administration of anti-
                 psychotic medication while in detention, college records, and medical
                 records. We disagree. Most of the witnesses had submitted sworn
                 declarations reflecting their probable deposition and evidentiary hearing
                 testimony. The inquiry at the hearing was whether postconviction counsel
                 was ineffective for failing to challenge trial counsel's failure to investigate
                 these witnesses. Under these circumstances, the district court did not err
                 in implicitly denying Greene's motion for leave to depose the witnesses
                 when it concluded that it was still part of a reasonable trial strategy not to
                 introduce the evidence. As to the records, Greene was arrested two days
                 after the crime, therefore any drug testing or observations during his
                 arrest would have little evidentiary value in determining whether he was
                 intoxicated during the crime. Further, any records related to psychiatric
                 diagnoses and Greene's behavior while using drugs would have little value

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                in litigating postconviction counsel's effectiveness considering that the
                court had concluded that trial counsel's decision not to introduce similar
                evidence was a reasonable trial strategy.
                            Having considered Greene's contentions and• concluded that
                they lack merit, we
                            ORDER the judgment of the district court AFFIRMED.




                                                               &A-4 c-k 9-6C        , C.J.
                                                            Parraguirre


                                                                          xaczai       J.
                                                            Hardesty


                                                                                       J.




                                                                 Piekud                J.
                                                            Pickering


                CHERRY, J., with whom, SAITTA, J., agrees, dissenting:
                            I cannot agree with the majority's conclusion as to Greene's
                claim that prior counsel were ineffective for failing to investigate and
                introduce mitigating evidence. In my opinion, the district court erred in
                rejecting that claim without conducting an evidentiary hearing.        See
                Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984).

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                               Greene submitted considerable mitigation evidence with his
                 petition that he contended prior counsel failed to discover and present to
                 the jury. Several past psychological evaluations described Greene's
                 marked impulsivity. Further, he had been diagnosed with conduct
                 disorder, persistent depressive disorder, and attention deficit-hyperactive
                 disorder. More recently, evaluating professionals opined that Greene's
                 behavior is significantly influenced by his severe psychological deficits.
                 They asserted that Greene lacked the capacity to transform unacceptable
                 impulses into acceptable behavior. His mood instability, coupled with
                 stress, could result in episodes of bizarre behavior and irrational impulses.
                 Additionally, evaluators opined that he was suffering from the chronic
                 effects of methamphetamine abuse at the time of the crime, and those
                 effects augmented his impulsivity and could have resulted in a delusional
                 experience.
                               New evidence offered with the petition also showed how the
                 events of his youth aggravated his psychological disorders and how those
                 disorders influenced the delinquent behavior of his youth. Although the
                 jury heard some testimony that Greene had been molested, the new
                 evidence described the abuse in greater detail. Other evidence indicated
                 that Greene had been physically abused by an uncle and sexually
                 assaulted by several neighborhood boys. These events caused Greene to
                 withdraw and become prone to destructive behavior. Greene's father did
                 not seek appropriate counseling for him, or adequately discipline his
                 misbehavior, after he was molested. Records of Greene's expulsions and
                 prior juvenile crimes validate the deleterious effects of his disorders, past
                 abuse, and lack of discipline. It is clear that Greene's neurological deficits
                 persisted until the time of the crime. Those who knew Greene when he

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                lived at the Sunrise Mobile Home Park described him as "gentle, funny,
                and caring," but was known to become "argumentative, belligerent,
                paranoid, and violent" as well as "explode in fits of rage."
                            In its case in aggravation, the State undoubtedly presented
                every crime or prior bad act for which it could find evidentiary support in
                its effort to convince the jury to impose death. As well it should have-
                Greene's crimes, whether those charged or not, were egregious. But
                fairness dictates that competent counsel should have investigated and
                presented evidence of every mental disorder that troubled Greene, every
                predator who victimized him as a child, and every failure of his family to
                address his trauma or remedy his behavior. Therefore, I disagree with the
                majority's conclusion that counsel's decision not to introduce this
                testimony was reasonable trial strategy. The majority also concludes that
                such evidence would not have been persuasive given how Greene's crimes
                did not appear to be a "rash act." However, mitigation evidence need not
                excuse or justify the crime.   Hollaway ix State, 116 Nev. 732, 743, 6 P.3d
                987, 995 (2000). It need only provide some "basis for jurors to find the
                crime mitigated and impose a less severe sentence." Id.
                            I further disagree with the majority's conclusion that the
                district court could have accurately assessed the effect of this evidence
                based solely on the trial evidence and proffered affidavits. Although the
                decision to impose death should not result from passion or prejudice, see
                NRS 177.055(2)(d), it is not a cold, detached determination based purely
                on factual proof, see Nunnery v. State, 127 Nev. 749, 775-76, 263 P.3d 235,
                252-53 (2011) (noting that the weighing determination is not a factual
                finding, but a moral determination); see also McConnell v. State, 125 Nev.
                243, 254, 212 P.3d 307, 315 (2009) ("As the United States Supreme Court

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                has stated, the jury's decision whether to impose a sentence of death is a
                moral decision that is not susceptible to proof." (citing Penry v. Lynaugh,
                492 U.S. 302 (1989), abrogated on other grounds by Atkins v. Virginia, 536
                U.S. 304 (2002); Caldwell v. Mississippi, 472 U.S. 320 (1985))). While
                guided by evidence, the sentencing decision depends greatly on the
                sensibility and morality of the jurors imposing it. In this case, a review of
                the mere facts presented to the court and proffered documentary evidence
                is inadequate to assess whether the jury would have imposed death given
                the new evidence. See Graves v. State, 112 Nev. 118, 124, 912 P.2d 234,
                238 (1996) ("The cold record is a poor substitute for demeanor
                observation."). An evidentiary hearing is necessary, not merely to assess
                the credibility of the omitted evidence, but to weigh its resonance.
                Accordingly, I would reverse the judgment of the district court and
                remand for an evidentiary hearing.




                I concur:


                                                J.




                cc:   Eighth Judicial District Court Dept. 14
                      Clark County District Attorney
                      Attorney General/Las Vegas
                      Federal Public Defender/Las Vegas
                      Eighth District Court Clerk
                      Travers A. Greene

SUPREME COURT
       OF
    NEVADA
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0) 1947A    e
