                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 MARLO THOMAS,                                          No. 65916
                 Appellant,
                 vs.
                 THE STATE OF NEVADA,                                           FILED
                 Respondent.
                                                                                JUL 2 2 2016
                                                                             TRACIE K LINDEMAN
                                                                           CLEROF UPREME COURT
                                                                                  .
                                                                           BY
                                                                                 DEPUTY CLERK


                                         ORDER OF AFFIRMANCE
                               This is an appeal from a district court order denying a
                 postconviction petition for a writ of habeas corpus in a death penalty case.
                 Eighth Judicial District Court, Clark County; Stefany Miley, Judge.'
                               Appellant Mario Thomas robbed a manager and killed two
                 employees at a restaurant where he formerly worked. A jury convicted
                 him of two counts of first-degree murder with use of a deadly weapon,
                 robbery with use of a deadly weapon, first-degree kidnapping with use of a
                 deadly weapon, conspiracy to commit murder and/or robbery, and burglary
                 while in possession of a firearm. After a penalty hearing, the jury
                 sentenced him to death for each murder. The death sentences were later
                 reversed in a postconviction proceeding, Thomas v. State, 120 Nev. 37, 45,
                 83 P.3d 818, 824 (2004), and a second penalty hearing was held. At the
                 conclusion of the second penalty hearing, Thomas again was sentenced to
                 death for each murder. This court affirmed the sentences.            Thomas v.
                 State, 122 Nev. 1361, 148 P.3d 727 (2006). Thereafter, Thomas filed a

                       1 TheHonorable Michael Cherry, Justice, voluntarily recused himself
                 from participation in the decision of this matter.



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                 timely postconviction petition for a writ of habeas corpus. The district
                 court denied Thomas' petition without conducting an evidentiary hearing.
                 This appeal followed.
                             Thomas raises several issues related to his suggestion that he
                 is intellectually disabled. While he initially claimed in the proceedings
                 below that he is intellectually disabled and therefore could not be
                 sentenced to death, see Atkins v. Virginia, 536 U.S. 304 (2002), he never
                 requested an evidentiary hearing on the issue and later acknowledged he
                 is not intellectually disabled but is merely close to the line. As a result,
                 the proceedings below focused on a different but related claim: whether
                 counsel were ineffective at the second penalty hearing for failing to
                 present evidence of Thomas' borderline intellectual disability as a
                 mitigating circumstance. Because Thomas abandoned his Atkins claim
                 below, we decline to consider his assertion that the district court erred in
                 failing to hold an evidentiary hearing to determine whether he is
                 intellectually disabled. We also decline to consider Thomas' related claim
                 that counsel were ineffective for failing to file a motion pursuant NRS
                 175.554(5) because it is raised for the first time on appeal.   See Ford v.
                 Warden, 111 Nev. 872, 901 P.2d 123, 130 (1995) (indicating that petitioner
                 cannot raise new claim on appeal that was not presented to district court
                 in postconviction proceeding); Davis v. State, 107 Nev. 600, 606, 817 P.2d
                 1169, 1173 (1991) (holding that this court need not consider arguments
                 raised on appeal that were not presented to the district court in the first
                 instance), overruled on other grounds by Means v. State, 120 Nev. 1001,
                 103 P.3d 25 (2004).
                             Thomas also contends that the district court erred by denying
                 his claim that counsel at his second penalty hearing were ineffective for

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                        failing to investigate and present evidence of his borderline intellectual
                        disability as a mitigating circumstance. He argues that the district court
                        should have conducted an evidentiary hearing on this claim.
                                    To prove ineffective assistance of counsel, a petitioner must
                        demonstrate that counsel's performance was deficient in that it fell below
                        an objective standard of reasonableness, and resulting prejudice such that
                        there is a reasonable probability that, but for counsel's errors, the outcome
                        of the proceedings would have been different.      Strickland v. Washington,
                        466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683
                        P.2d 504, 505 (1984) (adopting the test in Strickland). 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). An evidentiary hearing is warranted where the petitioner
                        raises claims that are not belied by the record and, if true, would warrant
                        relief. Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984).
                                    In support of his claim, Thomas provided the district court
                        with a report of a neuropsychological and psychological evaluation
                        conducted by Dr. Jonathan Mack. Dr. Mack concluded that Thomas
                        suffers from "neurocognitive deficits that impair activities of daily life to a
                        significant extent," including deficits in the areas of comprehension of
                        written and spoken word, "as well as in the interpersonal social realm
                        with extremely disinhibited impulse control and control of emotions." Dr.
                        Mack's report showed that Thomas performed extremely poorly on most
                        tests he performed and one of his scores was "one of the worst" Dr. Mack
                        had ever seen. Dr. Mack concluded that Thomas had an IQ of 72, and
                        although he did not diagnose Thomas as intellectually disabled, he

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                  concluded that Thomas suffered from Fetal Alcohol Spectrum Disorder
                  and several other disorders. Ultimately, Dr. Mack concluded that Thomas'
                  "propensity towards emotional dyscontrol, effective impulsivity, and
                  dsyregulation of aggressive behavior" was "a consequence of an organic
                  brain syndrome, fetal alcohol exposure, and, in essence, the overall
                  consequence of organic brain damage."
                              We conclude that the district court did not err. Similar
                  evidence to that proffered in this proceeding was presented at the first
                  penalty hearing. 2 We can infer that counsel made a strategic decision to
                  take a different approach at the second penalty hearing because the record
                  shows counsel knew of the testimony and evidence offered at the first
                  penalty hearing.    See Cullen v. Pinholster, 563 U.S. 170, 196 (2011)
                  (explaining that an appellate court is "required not simply to give the
                  attorneys the benefit of the doubt, but to affirmatively entertain the range
                  of possible reasons [the petitioner's] counsel may have had for proceeding
                  as they did" (internal quotation marks, alterations, and citations
                  omitted)). Such a strategic decision was objectively reasonable given that
                  one of the State's main arguments at the second penalty hearing was that,
                  based on his criminal history and behavior while incarcerated, Thomas
                  would always be dangerous. 3 The newly-proffered evidence might have


                        2 Thomas   points to no facts to suggest that his intellectual
                  functioning changed thereafter such that counsel should have conducted a
                  new investigation before the second penalty hearing.

                        At the second penalty hearing, the State presented extensive
                  records which showed that Thomas had previously committed many
                  serious crimes, as well as testimony from corrections officers about his
                  abhorrent behavior while incarcerated, which included accounts that he
                                                                continued on next page . . .

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                       explained why Thomas acted out but also could have supported the State's
                       argument that he would never be a manageable inmate.        See id. at 201
                       (observing that evidence of defendant's family's substance abuse problems,
                       mental illness, and criminal history was "by no means clearly mitigating,
                       as the jury might have concluded that [defendant] was simply beyond
                       rehabilitation"); see also Lisle v. State, 131 Nev., Adv. Op. 39, 351 P.3d
                       725, 733 (2015) (recognizing that "mitigation evidence can be a double-
                       edged sword that may indicate diminished culpability but at the same
                       time may indicate an increased risk of future dangerousness"). Counsel
                       cannot be deemed deficient for declining to introduce testimony that could
                       have been just as harmful as helpful and would have been
                       counterproductive to the picture he was trying to paint: that Thomas' bad
                       behavior was mostly in the past and he was maturing the longer he stayed
                       incarcerated. Counsel also presented testimony from Thomas' family
                       members, who briefly and generally commented on his mental deficits and
                       upbringing. Counsel's decision to generally acknowledge Thomas'
                       problems from his family's perspective was objectively reasonable.     See
                       Wong v. Belmontes,    558 U.S. 15, 24 (2009) (explaining that expert
                       testimony was unnecessary because the defense "required only that the
                       jury make logical connections of the kind a layperson is well equipped to
                       make. The jury simply did not need expert testimony to understand the




                       • . . continued
                       attacked officers and encouraged fellow inmates to do the same, failed to
                       comply with institution rules, and belittled, harassed, and threatened
                       female corrections officers.



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                'humanizing' evidence; it could use its• common sense or own sense of
                mercy.").
                              Furthermore, we conclude that Thomas failed to demonstrate
                prejudice. As explained above, the newly-proffered evidence was a double-
                edged sword. In addition, it could have opened the door to unfavorable
                rebuttal evidence. See Wong, 558 U.S. at 26 (holding that counsel was not
                ineffective where he declined to admit favorable testimony which would
                have opened the door to "the worst kind of bad evidence"). But notably,
                the evidence is not so compelling that there is a reasonable probability
                that the proceedings would have ended differently had it been presented.
                Thomas committed two brutal murders and expressed displeasure that
                there was not a third. His criminal record was extensive and included
                numerous acts of violence, and he continued his violent actions while
                incarcerated, oftentimes targeting women. The newly-offered evidence is
                simply not enough to have changed the jury's calculus.
                              Having concluded that the district court did not err, we
                            ORDER the judgment of the district court AFFIRMED.



                                             C.J.                         cisarc         J.
                Parraguirre                                 Hardesty


                                                                     U,                  J.
                                                            Saitta



                Gibbons



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                cc: Hon. Stefany Miley, District Judge
                     Justice Law Center
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




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