                              IN THE SUPREME COURT OF THE STATE OF NEVADA


                       DONEALE L. FEAZELL,                                    No. 66311
                       Appellant,
                       vs.
                       THE STATE OF NEVADA,
                       Respondent.
                                                                                    FILED
                                                                                     JAN •I 5 2016
                                                                                    TRACE K. LINDEMAN
                                                                                CLERKgU REME       COURT
                                                                               BY
                                                                                      DEPUTY CLER        s-

                                               ORDER OF AFFIRMANCE
                                   This is an appeal from a district court order denying a
                       postconviction petition for a writ of habeas corpus. Eighth Judicial
                       District Court, Clark County; Elizabeth Goff Gonzalez, Judge.
                                   Appellant Doneale Feazell argues that the district court erred
                       in denying his second postconviction petition for a writ of habeas corpus on
                       the grounds that he received ineffective assistance of counsel in his second
                       penalty hearing and his April 2000 postconviction evidentiary hearing.'
                       To demonstrate ineffective assistance of counsel, a petitioner must show
                       both that counsel's performance was deficient in that it fell below an
                       objective standard of reasonableness and that prejudice resulted in that
                       there is a reasonable probability that, but for counsel's errors, the outcome

                              'This is Feazell's first postconviction petition for a writ of habeas
                       corpus following his second penalty hearing, which took place after this
                       court vacated his sentence and ordered a new penalty hearing. See Feazell
                       v. State, Docket No. 37789 (Order Affirming in Part and Vacating in Part,
                       Nov. 14, 2002). Patricia Erickson represented him at the second penalty
                       hearing, and Scott Bindrup represented him at the prior postconviction
                       evidentiary hearing. When postconviction counsel is appointed pursuant
                       to a statutory mandate, see NRS 34.820(1), a petitioner is entitled to
                       effective assistance of that counsel. Crump v. Warden, 113 Nev. 293, 303,
                       934 P.2d 247, 253 (1997); McKague v. Warden, 112 Nev. 159, 164, 912 P.2d
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                 of the proceedings would have been different.     Strickland v. Washington,
                 466 U.S. 668, 687-88, 694 (1984); Warden v. Lyons, 100 Nev. 430, 432-33,
                 683 P.2d 504, 505 (1984) (adopting the Strickland test). We give deference
                 to the district court's factual findings but review the court's application of
                 the law to those facts de nova.   Lader v. Warden, 121 Nev. 682, 686, 120
                 P.3d 1164, 1166 (2005). Counsel is strongly presumed to have provided
                 adequate assistance and exercised reasonable professional judgment in all
                 significant decisions. Strickland, 466 U.S. at 689.
                             First, Feazell argues that Erickson was ineffective at the
                 second penalty hearing for failing to direct Dr. Cunningham to conduct a
                 personal interview, in part because this omission opened the expert
                 testimony to impeachment. "A strategy decision, such as who should be
                 called as a witness, is a tactical decision that is virtually unchallengeable
                 absent extraordinary circumstances."       Doleman v. State, 112 Nev. 843,
                 848, 921 P.2d 278, 280-81 (1996) (internal quotation marks omitted).
                 Erickson explained her strategy decision during the evidentiary hearing:
                 she was concerned that Feazell would have discussed his extreme racial
                 views, which then could have been raised in court to the detriment of his
                 defense. Considering that Dr. Cunningham was amply able to testify
                 regarding risk factors toward delinquency and criminality in Feazell's
                 family and neighborhood without interviewing Feazell, we conclude that
                 Feazell has not shown extraordinary circumstances justifying a challenge
                 to Erickson's strategy decision regarding the scope of Dr. Cunningham's
                 investigation. Therefore, we conclude that the district court did not err.
                             Second, Feazell argues that Erickson was ineffective for failing
                 to request a psychological evaluation. When mental health records
                 suggest that a psychological evaluation may prove favorable in mitigating
                 a death sentence, "counsel's failure to request such an evaluation is both
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                  inadequate and prejudicial."     See Riley v. State, 110 Nev. 638, 650, 878
                  P.2d 272, 280 (1994). As no prior mental health records suggested that
                  Feazell had any pretrial psychological or cognitive disorders and a
                  sentence of death was not a possibility during the second penalty hearing,
                  Riley is not on point, and Feazell has failed to show that Erickson's
                  performance was deficient. Therefore, we conclude that the district court
                  did not err.
                                 Third, Feazell argues that Erickson was ineffective during the
                  second penalty hearing for not arguing trial counsel's ineffectiveness for
                  failing to obtain an eyewitness identification expert. The district court
                  concluded that Feazell had not shown that counsel's performance fell
                  below an objective standard of reasonableness or that a different outcome
                  would have developed but for counsel's alleged deficiencies, and we agree.
                  Feazell previously argued, through first postconviction counsel Scott
                  Bindrup, that trial counsel was ineffective for this failure, and this court
                  rejected the claim.      Feazell v. State, Docket No. 37789, at 3 (Order
                  Affirming in Part and Vacating in Part, Nov. 14, 2002) (concluding that
                  Feazell had no entitlement to an eyewitness identification expert). This
                  court's prior ruling is the law of the case, see Hall v. State, 91 Nev. 314,
                  315, 535 P.2d 797, 798 (1975), and Feazell has not shown that Erickson
                  performed deficiently by failing to argue that trial counsel was deficient
                  when this court had previously rejected the claim. Further, Feazell has
                  not shown that the claim that he wanted Erickson to raise would have had
                  a reasonable likelihood of success. See Nika v. State, 124 Nev. 1272, 1293,
                  198 P.3d 839, 853 (2008).
                                 Fourth, Feazell argues that Erickson was ineffective for not
                  challenging Feazell's guilt at his second penalty hearing by contesting the
                  inculpatory eyewitness testimony. During the evidentiary hearing,
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                    Erickson attempted to challenge the credibility of the eyewitness who had
                    identified Feazell as the perpetrator, and the district court ruled that
                    counsel could not relitigate Feazell's guilt during the penalty phase.      See

                    Browning v. State,      124 Nev. 517, 526-27, 188 P.3d 60, 67 (2008)
                    (addressing the scope of penalty hearings). In denying the underlying
                    petition, the district court found that counsel had not been permitted to
                    attack the witness's credibility and concluded that counsel was not
                    ineffective. Feazell has not shown that challenging the witness's
                    credibility was relevant to a proper subject of the penalty hearing, and we
                    conclude that the district court did not err in denying relief on this ground.
                                Fifth, Feazell argues that Erickson was ineffective in failing to
                    object to the district court's finding of a mistrial or to request that the jury
                    be given an additional day to deliberate. After one and a half days of
                    deliberation, the jury foreperson informed the district court that the jury
                    was hopelessly deadlocked and that additional time to deliberate would
                    not help, see Glover v. Eighth Judicial Dist. Court, 125 Nev. 691, 702, 220
                    P.3d 684, 692 (2009), and the district court accordingly concluded that
                    manifest necessity compelled a mistrial. As the jury instructions
                    unambiguously stated two sentencing options, Feazell's contention that
                    the foreperson's description of the jury split as "eight, three, and one"
                    entailed that the jurors mistakenly believed that there were three
                    sentencing options, not two, is less plausible than the State's alternative,
                    that one of thefl jurors was undecided. We conclude that the district court
                    acted within its discretion in ordering the mistrial, see Rudin v. State, 120
                    Nev. 121, 142, 86 P.3d 572, 586 (2004), and that Feazell's desired objection
                    would have been futile, see Ennis v. State, 122 Nev. 694, 706, 137 P.3d
                    1095, 1103 (2006). As the jury was deadlocked, Feazell has not shown
                    that a request for an additional day of deliberation would yield a
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                  reasonable probability of a different outcome. Thus, we conclude that the
                  district court did not err in denying relief on this claim.
                                Sixth, Feazell argues that Erickson was ineffective for not
                  obtaining a gang expert without a pending criminal charge. Counsel alone
                  has the ultimate responsibility of deciding which witnesses to develop.
                  Rhyne v. State, 118 Nev. 1, 8, 38 P.3d 163, 167 (2002). Feazell concedes
                  that it may have been a good strategic move to decline to call the prepared
                  gang expert to testify when counsel learned shortly before the penalty
                  hearing that the expert had a pending criminal charge. He further notes
                  that Erickson had unsuccessfully sought to exclude evidence of the gang
                  expert's pending charge. Instead, Feazell argues that it would have been a
                  better move to get a different expert without a pending charge. Strategic
                  decisions regarding developing witnesses rest with counsel, and Feazell's
                  disagreement on strategy does not show that Erickson's performance was
                  deficient. Thus, we conclude that the district court did not err in denying
                  this claim.
                                Seventh, Feazell argues that postconviction counsel provided
                  ineffective assistance of counsel for failing to call five alibi witnesses to
                  testify at the first postconviction evidentiary hearing 2 even though their
                  anticipated exculpatory testimony was known and discussed in the habeas
                  petition. The district court concluded that Feazell failed to show that
                  Bindrup's performance was objectively unreasonable or that he would
                  have received a more favorable outcome but for counsel's alleged
                  deficiencies. During the first postconviction evidentiary hearing, trial



                        Feazell appears to ascribe this alleged deficiency to Erickson,
                        2
                  although Scott Bindrup represented him during the first postconviction
                  evidentiary hearing.
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                     counsel testified that he learned of the alibi witnesses in investigating the
                     case and declined to pursue an alibi defense out of ethical concerns, which
                     arose following his conversations with certain individuals. This strongly
                     suggests trial counsel's belief that the alibi affidavits sworn by Feazell's
                     family members contained false testimony that could not be presented in a
                     court of law. See NRPC 3.3(a)(3). Accordingly, Bindrup likewise did not
                     perform deficiently in declining to pursue this suspect testimony during
                     the first postconviction evidentiary hearing.
                                 Eighth, Feazell argues actual innocence on the basis that his
                     alibi witnesses establish his actual innocence, warranting reversal.
                     Feazell's actual-innocence argument mischaracterizes actual innocence as
                     a ground for relief, rather than a means of overcoming a procedural bar.
                     See Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
                     Nevertheless, even assuming that actual innocence could be raised as a
                     freestanding claim, cf. Herrera v. Collins, 506 U.S. 390, 404-405 (1993)
                     (noting that the United States Supreme Court has never endorsed a
                     freestanding claim of actual innocence), Feazell has not shown actual
                     innocence because the evidence is• not reliable and thus not credible when
                     trial counsel concluded that the evidence could not be presented ethically.
                     See Schlup v. Delo, 513 U.S. 298, 324 (1995) ("To be credible, such a claim
                     requires petitioner to support his allegations of constitutional error with
                     new reliable evidence[.]"). Feazell does not contest trial counsel's
                     determination that this alibi evidence posed an ethical problem preventing
                     its presentation. Moreover, the unexplained four-year gap between the
                     date of the affidavits and the crime and the suspect credibility of the
                     affiants who were all Feazell's family members undermines the reliability
                     of Feazell's proffered alibi evidence.    See id. at 332 Mille court may
                     consider how the timing of the submission and the likely credibility of the
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                 affiants bear on the probable reliability of that evidence."). Lastly, Feazell
                 has not shown that "it is more likely than not that no reasonable juror
                 would have convicted him in the light of the new evidence."        Id. at 327.
                 Therefore, we conclude the district court did not err in denying this claim.
                                 Having considered Feazell's contentions and concluded that
                 they are without merit, we
                                 ORDER the judgment of the district court AFFIRMED. 3




                                            Hardesty


                                               J.                                        J.
                 Saitta                                      Pickering



                 cc:      Hon. Elizabeth Goff Gonzalez, District Judge
                          Law Office of Kristina Wildeveld
                          Attorney General/Carson City
                          Clark County District Attorney
                          Eighth District Court Clerk




                            the extent that Feazell asserts that the district court erred with
                          3 To
                 respect to the scope of the evidentiary hearing, we conclude that he has
                 failed to present relevant authority or cogent argument supporting an
                 entitlement to relief. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3,
                 6 (1987)..
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