                          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.



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                   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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