                                                      131 Nev., Advance Opinion 31
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  KEVIN JAMES LISLE,
                  Appellant,
                    vs.
                                                                            ",ILED
                  THE STATE OF NEVADA,                                               JUN 2 5 2015
                  Respondent.
                                                                                      QE K. LINDEMAN
                                                                               CLE     F,SU;;.BBME.BCV R
                                                                              BY




                              Appeal from a district court order dismissing a post-conViction
                  petition for a writ of habeas corpus in a death penalty case. Eighth
                  Judicial District Court, Clark County; Michael Villani, Judge.
                              Affirmed.

                  Rene L. Valladares, Federal Public Defender, and Michael Pescetta, David
                  Anthony, and Albert Sieber, Assistant Federal Public Defenders, Las
                  Vegas,
                  for Appellant.

                  Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                  District Attorney, and Steven S. Owens, Chief Deputy District Attorney,
                  Clark County,
                  for Respondent.




                  BEFORE THE COURT EN BANC.

                                                   OPINION
                  By the Court, PARRAGUIRRE, J.:

                              A jury found appellant Kevin James Lisle guilty of first-degree
                  murder with the use of a deadly weapon in the drive-by shooting of Kip
                  Logan and sentenced him to death. Under Nevada law, Lisle may
                  collaterally challenge his conviction and sentence in a post-conviction
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(0) 1947A   ezo                                                                      15- Mia
                petition for a writ of habeas corpus. There are two procedural bars to
                filing a petition that are relevant here: the petition must be filed within a
                certain period of time unless the petitioner shows cause for his delay; and
                the petitioner is limited to one petition absent a demonstration of good
                cause and actual prejudice. Where a petitioner cannot demonstrate cause
                and prejudice, we have recognized an exception to these bars against
                untimely and successive petitions: the petitioner must show that the
                failure to consider the petition on its merits would result in a fundamental
                miscarriage of justice, meaning the imprisonment of a person who is
                actually innocent of the offense for which he was convicted or the
                execution of a person who is actually innocent of the death penalty.
                            Lisle filed a petition that was untimely and successive. The
                district court dismissed the petition on the ground that it was procedurally
                barred. In this appeal from the district court's order, we must determine
                whether a petitioner can demonstrate that he is actually innocent of the
                death penalty by presenting new evidence of mitigating circumstances.
                We hold that he cannot. In the context of a challenge to a death sentence,
                the actual-innocence exception to the procedural bars is focused on the
                elements of first-degree murder and the aggravating circumstances, not
                mitigating circumstances, because it is the former that determine death
                eligibility. Because we conclude that Lisle's claims do not warrant relief,
                we affirm the district court's order dismissing his petition.
                                  FACTS AND PROCEDURAL HISTORY
                            The facts underlying Lisle's conviction are set forth in detail in
                this court's 1997 opinion affirming Lisle's conviction and sentence. Lisle v.
                State, 113 Nev. 540, 937 P.2d 473 (1997), decision clarified on denial of
                reh'g, 114 Nev. 221, 954 P.2d 744 (1998). In this opinion, we recount only
                those facts necessary to an understanding of the issues presented.
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                                  On the evening of October 22, 1994, John Melcher was driving
                      on a Las Vegas freeway and pulled his van alongside a Mustang driven by
                      Kip Logan. Lisle, the front passenger in Melcher's van, shot and killed
                      Logan. Adam Evans' was in the van's back seat, and he and Melcher
                      testified against Lisle at trial. The jury found Lisle guilty of first-degree
                      murder with the use of a deadly weapon, found a single aggravating
                      circumstance (the murder was committed by a person who knowingly
                      created a great risk of death to more than one person), found "other
                      mitigating circumstances," and concluded that the mitigating
                      circumstances did not outweigh the aggravating circumstance. The jury
                      sentenced Lisle to death. This court affirmed the judgment and sentence,
                      and the remittitur issued on November 16, 1998.
                                  Lisle then filed a timely post-conviction petition for a writ of
                      habeas corpus, and the district court appointed counsel to supplement and
                      litigate the petition. The district court denied the petition, and this court
                      affirmed the district court's order. Lisle v. State, Docket No. 36949 (Order
                      of Affirmance, August 21, 2002). The remittitur from that appeal issued
                      on September 17, 2002. Lisle filed his second post-conviction habeas
                      petition on August 25, 2008, claiming that he received ineffective
                      assistance of trial, appellate, and post-conviction counsel. The district
                      court dismissed the petition as procedurally barred, and this appeal
                      followed.
                                                     DISCUSSION
                                  Lisle's petition was procedurally barred. The petition was
                      untimely because it was filed nearly 10 years after the remittitur issued

                            'The 1997 opinion refers to him as Anthony Evans


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                from the appeal of his judgment of conviction.    See NRS 34.726(1). The
                petition was also successive where it raised claims that could have been
                brought in earlier proceedings, and an abuse of the writ where it raised
                claims new and different from those in his first post-conviction habeas
                petition.   See NRS 34.810(1)(b)(2); NRS 34.810(2). To excuse the
                procedural bars so that his petition would be considered on the merits,
                Lisle raised several claims alleging good cause and prejudice.    See NRS
                34.726(1); NRS 34.810(1)(b), (3); see also State v. Huebler, 128 Nev., Adv.
                Op. 19, 275 P.3d 91, 94-95 (2012) (explaining that "good cause for delay"
                under NRS 34.726(1) requires that the delay is not the petitioner's fault
                and that the petitioner will be unduly prejudiced), cert. denied, 568 U.S.
                , 133 S. Ct. 988 (2013). He also argued that, in the absence of good
                cause, he was actually innocent of the crime and of the death penalty such
                that the failure to consider the merits of his petition would result in a
                fundamental miscarriage of justice. See Pellegrini v. State, 117 Nev. 860,
                887, 34 P.3d 519, 537 (2001). Because we conclude that Lisle failed to
                demonstrate either good cause to excuse the procedural bars or that he
                was actually innocent, we do not reach the merits of his claims challenging
                his conviction and sentence.
                Lisle failed to demonstrate good cause and prejudice
                            Lisle argues that the district court erred in dismissing his
                petition as procedurally barred because he established good cause and
                prejudice by showing that the State withheld impeachment evidence
                regarding witnesses Melcher, Evans, and Larry Prince in violation of
                Brady v. Maryland, 373 U.S. 83 (1963). We have acknowledged that a
                Brady violation may provide good cause and prejudice to excuse the
                procedural bars to a post-conviction habeas petition.       See Mazzan v.
                Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000). A successful Brady claim
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                 has three components: "the evidence at issue is favorable to the accused;
                 the evidence was withheld by the state, either intentionally or
                 inadvertently; and prejudice ensued, i.e., the evidence was material." Id.
                 The second and third components of a Brady violation parallel the good
                 cause and prejudice showings required to excuse the procedural bars to an
                 untimely and/or successive post-conviction habeas petition.          State v.
                 Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003). "[Tin other words, proving
                 that the State withheld the evidence generally establishes cause, and
                 proving that the withheld evidence was material establishes prejudice."
                 Id. But, "a Brady claim still must be raised within a reasonable time after
                 the withheld evidence was disclosed to or discovered by the defense."
                 Huebler, 128 Nev., Adv. Op. 19, 275 P.3d at 95 n.3; see also Hathaway v.
                 State, 119 Nev. 248, 254-55, 71 P.3d 503, 507-08 (2003) (holding that good
                 cause to excuse an untimely appeal-deprivation claim must be filed within
                 a reasonable time of learning that the appeal had not been filed).
                               Lisle has the burden of demonstrating the elements of the
                 Brady claim as well as its timeliness. Bennett, 119 Nev. at 599, 81 P.3d at
                 8; Mazzan, 116 Nev. at 67, 993 P.2d at 37. He did not meet these burdens.
                 He failed to demonstrate that his Brady claims were raised within a
                 reasonable amount of time after discovery of the withheld evidence. Lisle
                 admitted that he received some of the evidence regarding Melcher in 1995,
                 13 years before he filed the instant petition. 2 Although Lisle alleged that


                       2 0neweek after trial, Lisle learned of Melcher's second interview
                 with police, and on direct appeal, he challenged the State's failure to
                 disclose the contents of that interview. This court concluded that the
                 evidence had "little or no impeachment value" and was not material under
                 Brady. Lisle, 113 Nev. at 548, 937 P.2d at 478. Lisle's claims are
                                                                 continued on next page . . .
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                he was forced to seek discovery in federal court to obtain records from the
                Clark County District Attorney's Office and the Las Vegas Metropolitan
                Police Department, that such efforts began shortly after December 2003
                and continued until May 2007, and that as a result, no less than four
                orders were issued in his favor, he did not specify when he received the
                remaining evidence regarding Melcher, Evans, or Prince or that he
                received it as a result of the federal discovery litigation. Accordingly, Lisle
                did not specify facts that demonstrated that he raised the Brady claim
                within a reasonable time after discovering the withheld evidence.
                             Lisle's other good-cause claims were similarly unavailing.
                Like the Brady claim, Lisle's good-cause claim based on the alleged
                ineffective assistance of first post-conviction counsel,       see Crump v.
                Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997); McKague v. Warden,
                112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996), was untimely because
                it was not asserted within a reasonable time after it became available: the
                petition was filed nearly six years after the remittitur issued in the appeal
                from the denial of his first post-conviction habeas petition, see Hathaway,
                119 Nev. at 252-53, 71 P.3d at 506; Pellegrini, 117 Nev. at 869-70, 34 P.3d
                at 526 (holding that the time bar at MRS 34.726 applies to successive
                petitions); see also State v. Eighth Judicial Dist. Court (Riker), 121 Nev.


                • . . continued
                therefore barred by the doctrine of the law of the case. See Hall v. State,
                91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). We decline Lisle's
                invitation to reconsider our previous conclusion because he failed to
                demonstrate that this court's prior decision was clearly erroneous or that
                any new or different evidence was substantial. See Tien Fu Hsu v. County
                of Clark, 123 Nev. 625, 630-31, 173 P.3d 724, 728-29 (2007).


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                225, 232, 112 P.3d 1070, 1075 (2005) (holding that a petitioner "must
                plead and prove specific facts that demonstrate good cause" to excuse an
                abusive petition). Lisle's remaining good-cause claims—that Polk v.
                Sandoval, 503 F.3d 903 (9th Cir. 2007), excused any procedural bars to his
                claim challenging the premeditation jury instruction; that counsel, not
                Lisle, caused any delays; and that this court's alleged inconsistent
                application of the procedural bars and Lisle's health problems excused all
                of the procedural bars—also lacked merit.      See Nika v. State, 124 Nev.
                1272, 1286-87, 1289, 198 P.3d 839, 849-50, 851 (2008) (disagreeing with
                Polk and holding that the premeditation instruction set forth in Byford v.
                State, 116 Nev. 215, 236-37, 994 P.2d 700, 714-15 (2000), did not apply to
                cases that were final when Byford was decided); Hathaway, 119 Nev. at
                252, 71 P.3d at 506 (holding that a petitioner must show an impediment
                external to the defense to overcome procedural bars); cf. Phelps v. Dir.,
                Nev. Dep't of Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988)
                (holding that mental deficiency and lack of legal knowledge do not
                constitute good cause), superseded by statute on other grounds as stated in
                State v. Haberstroh, 119 Nev. 173, 180-81, 69 P.3d 676, 681 (2003); Riker,
                121 Nev. at 236, 112 P.3d at 1077 (holding that this court does not
                arbitrarily "ignore[ ] procedural default rules" and that "any prior
                inconsistent application of statutory default rules would not provide a
                basis for this court to ignore the rules, which are mandatory").
                Lisle failed to demonstrate actual innocence
                            Where a petition is procedurally barred and the petitioner
                cannot demonstrate good cause, the district court may nevertheless reach
                the merits of any constitutional claims if the petitioner demonstrates that
                failure to consider those constitutional claims would result in a

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                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 or is ineligible for the
                death penalty." Id. This generally requires the petitioner to present new
                evidence of his innocence.     House v. Bell, 547 U.S. 518, 536-37 (2006);
                Schlup v. Delo, 513 U.S. 298, 316 (1995).
                      Lisle did not demonstrate actual innocence of the crime
                            Lisle argues that he was actually innocent of the murder and
                presented new evidence in the form of affidavits from his family members
                to show that he did not have facial hair at the time of the murders. Lisle's
                defense at trial was mistaken identity and that Melcher was the actual
                shooter, and his theory in the instant petition is that the presence of facial
                hair was the key factor at trial in determining the shooter's identity.
                Although there was conflicting testimony regarding who had how much
                facial hair, the key evidence at trial was not facial hair but rather the
                testimony of Moldier and Evans, who both admitted to being present at
                the crime and identified Lisle as the shooter. Accordingly, Lisle failed to
                demonstrate that, in light of his family's affidavits, no reasonable juror
                would have found him guilty of first-degree murder. See Schlup, 513 U.S.
                at 327 ("[T]he petitioner must show that it is more likely than not that no
                reasonable juror would have convicted him in the light of the new
                evidence."); Pellegrini, 117 Nev. at 887, 34 P.3d at 537 (citing Schlup, 513
                U.S. at 327).
                      Lisle did not demonstrate actual innocence of the death penalty
                            Lisle argues that he is actually innocent of the death penalty
                on two grounds: First, he argues that there was insufficient evidence of
                the single aggravating circumstance found by the jury. Second, he argues

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                that had the jury been presented with the new evidence of mitigating
                circumstances that he provided to the post-conviction court, no rational
                juror would have found him eligible for the death penalty.
                             The first ground underlying Lisle's actual-innocence claim,
                based on a challenge to the aggravating circumstance, lacks merit. Lisle
                points to no new evidence supporting his claim of actual innocence with
                respect to the aggravating circumstance.     See House, 547 U.S. at 536-37;
                Schlup, 513 U.S. at 316. Nor do his arguments present any issue of first
                impression as to the legal validity of the aggravating circumstance.      Cf.
                Leslie v. Warden, 118 Nev. 773, 779-82, 59 P.3d 440, 445-46 (2002)
                (applying actual-innocence exception based on legal validity of an
                aggravating circumstance); Bennett, 119 Nev. at 597-98, 81 P.3d at 6-7
                (applying actual-innocence exception based in part on legal validity of an
                aggravating circumstance). Accordingly, Lisle has not demonstrated
                actual innocence based on his challenge to the aggravating circumstance,
                and we conclude that the district court did not err in declining on this
                basis to reach Lisle's procedurally barred claims.
                             The second ground underlying Lisle's actual-innocence claim
                presents an issue of first impression for this court: can a claim of actual
                innocence of the death penalty offered as a gateway to reach a
                procedurally defaulted claim be based on a showing of new evidence of
                mitigating circumstances? Although we have not answered that question, 3

                      3 0noccasion we have assumed, without deciding, that new
                mitigating evidence could be offered to establish actual innocence of the
                death penalty as a gateway to consideration of a procedurally defaulted
                claim. See, e.g., Wilson v. State, 127 Nev., Adv. Op. 68, 267 P.3d 58, 61 n.2
                (2011).


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                     the United States Supreme Court addressed it in Sawyer v. Whitley, 505
                     U.S. 333 (1992), in the context of a successive federal habeas petition
                     challenging a Louisiana death sentence.
                                 The Sawyer Court rejected the idea that the actual-innocence
                     exception to procedural default should extend to the existence of new
                     mitigating evidence. 505 U.S. at 345. The Court's conclusion was based
                     primarily on two observations. First, extending actual innocence to
                     include new mitigating evidence would reduce the exception "to little more
                     than what is already required to show 'prejudice,' a necessary showing for
                     habeas relief for many constitutional errors," such as ineffective assistance
                     of counsel. Id. (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).
                     The Court reasoned that a petitioner should have to "show something
                     more. . . than he would have had to show to obtain relief on his first
                     habeas petition" to get "a court to reach the merits of his claims on a
                     successive habeas petition."     Id.    Second, the subjective nature and
                     breadth of mitigating circumstances "would so broaden the [actual
                     innocence] inquiry as to make it anything but a 'narrow' exception to the
                     principle of finality."   Id. We agree that these observations counsel
                     against opening the actual-innocence gateway to include new mitigating
                     evidence, for otherwise the exception would swallow the procedural
                     defaults adopted by the Legislature.
                                 Lisle, however, argues that applying language in Sawyer to
                     Nevada's death penalty scheme leads to the conclusion that, in Nevada, a
                     petitioner should be allowed to demonstrate actual innocence of the death
                     penalty by showing the existence of new mitigating evidence. In
                     particular, Lisle focuses on the Sawyer Court's conclusion that "[s]ensible
                     meaning is given to the term 'innocent of the death penalty' by allowing a

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                   showing in addition to innocence of the capital crime itself a showing that
                   there was no aggravating circumstance or that some other condition of
                   eligibility had not been met." Id. (emphasis added). Lisle suggests that
                   there is another "condition of eligibility" in Nevada, the weighing
                   determination—whether mitigating circumstances are not sufficient to
                   outweigh the aggravating circumstance(s). As support, Lisle points to a
                   statement by this court that under Nevada law a defendant is "death-
                   eligible" only if, in addition to at least one aggravating circumstance, the
                   sentencing body "finds that there are no mitigating circumstances
                   sufficient to outweigh the aggravating circumstance or circumstances
                   found.'"   Johnson v. State, 118 Nev. 787, 802, 59 P.3d 450, 460 (2002)
                   (quoting NRS 175.554(3)), overruled on other grounds by Nunnery v. State,
                   127 Nev., Adv. Op. 69, 263 P.3d 235, 250-51 (2011). 4 Based on Lisle's
                   analysis, new mitigation evidence could provide the basis for a claim that
                   a petitioner is actually innocent of the death penalty.




                         4See  also Servin v. State, 117 Nev. 775, 786, 32 P.3d 1277, 1285
                   (2001) (stating that to determine whether a defendant is death-penalty
                   eligible, "(1) the jury must unanimously find, beyond a reasonable doubt,
                   at least one enumerated aggravating circumstance; and (2) each juror
                   must then individually determine that mitigating circumstances, if any
                   exist, do not outweigh the aggravating circumstances. At this point, a
                   defendant is death-eligible. . . ."); Hollaway v. State, 116 Nev. 732, 745, 6
                   P.3d 987, 996 (2000) (discussing the two necessary findings for a
                   defendant to be eligible for death under Nevada's capital sentencing
                   scheme: "the jury must find unanimously and beyond a reasonable doubt
                   that at least one enumerated aggravating circumstance exists, and each
                   juror must individually consider the mitigating evidence and determine
                   that any mitigating circumstances do not outweigh the aggravating").


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                             A careful review of Sawyer leads us to reject Lisle's analysis.
                 Although this court has characterized the weighing determination as one
                 of two findings required to make a defendant "death-eligible" in Nevada,
                 the Sawyer Court used the word "eligibility" to refer to a more limited
                 aspect of the process for imposing a death sentence. The Supreme Court
                 has required that the capital sentencing process "narrow the class of
                 murderers subject to capital punishment. . . by providing specific and
                 detailed guidance to the sentencer" and allow for "consideration of the
                 character and record of the individual offender and the circumstances of
                 the particular offense."   McCleskey v. Kemp,     481 U.S. 279, 303 (1987)
                 (internal quotations omitted); see also Arave v. Creech, 507 U.S. 463, 471
                 (1993) (reiterating that a state's narrowing process "must 'channel the
                 sentencer's discretion by clear and objective standards that provide
                 specific and detailed guidance, and that make rationally reviewable the
                 process for imposing a sentence of death' (quoting Lewis v. Jeffers, 497
                 U.S. 764, 774 (1990))). The Court has referred to the narrowing
                 component of the capital sentencing process as the "eligibility" phase and
                 the individualized-consideration component as the "selection" phase.   See,
                 e.g., Buchanan v. Angelone, 522 U.S. 269, 275 (1998) ("In the eligibility
                 phase, the jury narrows the class of defendants eligible for the death
                 penalty, often through consideration of aggravating circumstances. In the
                 selection phase, the jury determines whether to impose a death sentence
                 on an eligible defendant." (citation omitted)).
                             The Court's analysis in          Sawyer   comports with this
                 understanding of the "eligibility" and "selection" phases of the capital
                 sentencing process. After discussing the narrowing requirement and
                 explaining that it was met under the Louisiana statute by the elements of

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                the capital offense and the finding of at least one statutory aggravating
                factor, Sawyer, 505 U.S. at 341-42, the Sawyer Court characterized that
                process as establishing "eligibility for the death penalty," id. at 342. The
                Court then explained that once the elements of the offense and at least
                one statutory aggravating factor had been found, the "emphasis shifts
                from narrowing the class of eligible defendants by objective factors to
                individualized consideration of a particular defendant."     Id. at 343. At
                that point, "[c]onsideration of aggravating factors together with mitigating
                factors, in various combinations and methods dependent upon state law,
                results in the jury's or judge's ultimate decision as to what penalty shall
                be imposed."   Id.   The Court's explanation of the two-part sentencing
                process demonstrates that "eligibility" is used in Sawyer as a descriptor for
                the aspect of the capital sentencing process in which the class of
                defendants who may be subject to the death penalty is narrowed.
                            In contrast, this court used the term "eligibility" in the case
                cited by Lisle to refer to both aspects of the capital sentencing process—
                narrowing and individualized consideration. Our use of "eligibility" in this
                fashion does not reflect an expansion of the narrowing aspect of the capital
                sentencing process in Nevada to include individualized consideration. To
                the contrary, we have focused on the same factors as the Supreme Court
                in evaluating whether Nevada has sufficiently narrowed the class of
                defendants who may be sentenced to death—the elements of the offense
                and the statutory aggravating circumstances.        See, e.g., Hernandez v.
                State, 124 Nev. 978, 983-84, 194 P.3d 1235, 1239 (2008) (discussing
                narrowing based on definition of murder by torture), overruled on other
                grounds by Armenta-Carpio v. State, 129 Nev., Adv. Op. 54, 306 P.3d 395,
                396 (2013); McConnell v. State, 120 Nev. 1043, 1065-67, 102 P.3d 606,

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                  621-23 (2004) (discussing narrowing based on elements of first-degree
                  felony murder and aggravating circumstance based on a murder
                  committed in the course of certain felonies). Our use of "eligibility" to
                  refer to both aspects of the capital sentencing process stems from a
                  relatively unique aspect of Nevada law that precludes the jury from
                  imposing a death sentence if it determines that the mitigating
                  circumstances are sufficient to outweigh the aggravating circumstance or
                  circumstances. NRS 175.554(3); NRS 200.030(4). Although this statutory
                  requirement limits the jury's discretion to sentence a person to death, it is
                  not part of the narrowing aspect of the capital sentencing process. 5
                  Rather, its requirement to weigh aggravating and mitigating
                  circumstances renders it, by definition, part of the individualized
                  consideration that is the hallmark of what the Supreme Court has
                  referred to as the selection phase of the capital sentencing process—the
                  "[c]onsideration of aggravating factors together with mitigating factors" to
                  determine "what penalty shall be imposed," Sawyer, 505 U.S. at 343• 6



                        5Addressing the use of "other matter" evidence at a capital penalty
                  hearing, this court has stated that "use of [other matter] evidence would
                  undermine the constitutional narrowing process which the enumeration
                  and weighing of specific aggravators [against mitigating evidence} is
                  designed to implement." Hollaway v. State, 116 Nev. 732, 746, 6 P.3d 987,
                  997 (2000). Neither Hollaway nor cases citing to it analyzed whether the
                  weighing determination was a necessary part of the "constitutional
                  narrowing process." See, e.g., Butler v. State, 120 Nev. 879, 895, 102 P.3d
                  71, 82 (2004); Evans v. State, 117 Nev. 609, 637, 28 P.3d 498, 517 (2001).
                  To the extent that Hollaway and its progeny could be read to hold such,
                  they are overruled.

                        The way that Nevada law uses the weighing of mitigating and
                        6
                  aggravating circumstances to limit the jury's discretion to sentence a
                                                                continued on next page. . .
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                                The very nature of the weighing determination further
                   supports our conclusion that the weighing determination is not what the
                   Sawyer Court had in mind when it referred to a "condition of eligibility"
                   other than aggravating circumstances that may be relevant to the actual-
                   innocence gateway. In particular, the mitigating circumstances are not
                   statutorily limited to an obvious class of relevant evidence, and the
                   weighing determination itself is a moral determination, not an objective
                   determination of facts.
                                First, as the Sawyer Court recognized, mitigating evidence is
                   categorically different in its nature and breadth than the elements of the
                   capital crime and statutory aggravating circumstances that the Court
                   determined could be the basis for showing innocence of the death penalty.
                   For example, the Sawyer Court observed that "Es] ensible meaning is given
                   to the term 'innocent of the death penalty' by allowing a showing in
                   addition to innocence of the capital crime itself[,] a showing that there was
                   no aggravating circumstance or that some other condition of eligibility had
                   not been met," because proof or disproof of the elements of the crime and
                   the statutory aggravating circumstances are "confined by the statutory
                   definitions to a relatively obvious class of relevant evidence." 505 U.S. at
                   345. In contrast, mitigating evidence cannot be confined by statute to a
                   relatively obvious class of relevant evidence, see Buchanan, 522 U.S. at

                   • . . continued
                   person to death is not mandated by Supreme Court precedent. The
                   Supreme Court does not require the states to "affirmatively structure in a
                   particular way the manner in which juries consider mitigating evidence"
                   and has suggested "that complete jury discretion is constitutionally
                   permissible." Buchanan, 522 U.S. at 276.


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                276 (observing "that the sentencer may not be precluded from
                considering. . . any constitutionally relevant mitigating evidence"); NRS
                200.035 (listing statutory mitigating circumstances and "[a]ny other
                mitigating circumstance"); rather, it includes "any aspect of a defendant's
                character or record and any of the circumstances of the offense that the
                defendant proffers as a basis for a sentence less than death," Lockett v.
                Ohio, 438 U.S. 586, 604 (1978); see also McCleskey, 481 U.S. at 304
                (indicating that "compassionate or mitigating factors stem[ ] from the
                diverse frailties of humankind" (quoting Woodson v. North Carolina, 428
                U.S. 280, 304 (1976) (plurality opinion))). And 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 that
                merits the death penalty. See Brewer v. Quarterman, 550 U.S 286, 292-93
                (2007).
                            Second, the Sawyer Court focused on the importance of
                objective standards in applying the actual-innocence inquiry in the context
                of the death penalty. As the Court explained, "[Ole phrase 'innocent of
                death' is not a natural usage of those words." Sawyer, 505 U.S. at 341; see
                also Smith v. Murray, 477 U.S. 527, 537 (1986) (acknowledging that actual
                innocence "does not translate easily into the context of an alleged error at
                the sentencing phase of a trial on a capital offense"). Therefore, "to
                construct an analog to the simpler situation represented by the case of a
                noncapital defendant" and make the very narrow exception for actual
                innocence "workable1,1 it must be subject to determination by relatively
                objective standards." Sawyer, 505 U.S. at 341. The elements of a capital
                offense and the aggravating circumstances are "objective factors or
                conditions." See id. at 347. They therefore provide a workable standard

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                for applying the actual-innocence gateway in the context of a death
                sentence. Id.   In contrast, the weighing of mitigating and aggravating
                circumstances does not allow for objective standards because it is a moral
                determination and, as such, it 'cannot be reduced to a scientific formula
                or the discovery of a discrete, observable datum." Nunnery v. State, 127
                Nev., Adv. Op. 69, 263 P.3d 235, 252 (2011) (quoting Ex parte Waldrop,
                859 So. 2d 1181, 1189 (Ala. 2002)). Opening the actual-innocence gateway
                to include new mitigating evidence thus does not present a workable
                analog.
                            Although we are not bound by the United States Supreme
                Court's decisions in interpreting state law, see Bradshaw v. Richey, 546
                U.S. 74, 76 (2005) (reiterating the converse, that "a state court's
                interpretation of state law. . . binds a federal court sitting in habeas
                corpus"), we find persuasive the Supreme Court's reasoning with its focus
                on the objective factors that narrow the class of offenders subject to the
                death penalty because that focus ensures rational reviewability and
                restrains the actual-innocence inquiry as a narrow gateway through which
                a petitioner may obtain review of claims that otherwise would be
                procedurally defaulted. We therefore conclude that an actual-innocence
                inquiry in Nevada must focus on the objective factors that make a
                defendant eligible for the death penalty, that is, the objective factors that
                narrow the class of defendants for whom death may be imposed. To hold
                otherwise would allow the exception to swallow the procedural bars.
                Accordingly, the district court did not err in rejecting Lisle's effort to
                circumvent the procedural bars to his petition by asserting a claim that he




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                     was actually innocent of the death penalty based on new mitigation
                     evidence.
                                                    CONCLUSION
                                  Lisle failed to demonstrate good cause to excuse his
                     procedurally barred post-conviction petition for a writ of habeas corpus.
                     Lisle also failed to demonstrate that he was actually innocent of either the
                     crime or the death penalty. We therefore affirm the district court's order
                     dismissing hisS post-conviction petition for a writ of habeas corpus.




                     We concur:


                                                  , C.J.
                     Hardesty

                 4
                                                     J.




                     Gibbons


                                                     J.




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                    CHERRY and SAITTA, JJ., dissenting:
                                In our view, the district court erred in denying the petition as
                    procedurally barred without conducting an evidentiary hearing to
                    determine the credibility of Lisle's new evidence of actual innocence. If it
                    found that new evidence to be credible, it is more likely than not that no
                    reasonable juror would have convicted Lisle or sentenced him to death in
                    light of the new evidence, and he would therefore have overcome the
                    procedural bars to having his underlying constitutional claims heard on
                    the merits. See Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537
                    (2001) (stating the standard for demonstrating actual innocence).
                                Lisle presented new evidence that he was actually innocent of
                    first-degree murder. Only four people besides the victim were present for
                    the murder: Lisle; John Melcher and Adam Evans, who were in the vehicle
                    with Lisle; and Jose Gonzales, the passenger in the victim's car. Lisle's
                    primary defense at trial that Melcher was the shooter was supported by
                    circumstantial evidence as well as by Gonzales's identification of Melcher
                    as the shooter. Gonzales's statement also indicated that the shooter had
                    scraggly facial hair, and the State sought to impeach his identification of
                    Melcher as the shooter by eliciting extensive—although not uniform—
                    testimony that Melcher did not have facial hair but that Lisle did.
                                Perfunctorily acknowledging the conflicting testimony about
                    facial hair, the majority dismisses its importance because it considers the
                    testimony of Evans and Melcher to be the "key" evidence in the case.
                    However, by failing to acknowledge Evans' and Melcher's motives to
                    fabricate their testimony, the majority did not consider the new evidence
                    in light of all of the evidence. See Schlup v. Delo, 513 U.S. 298, 328 (1995)
                    ("The habeas court must make its determination concerning the

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                petitioner's innocence in light of all the evidence." (quotation marks
                omitted)). Melcher and Evans had both been arrested in connection with
                the murder but struck deals with the State in exchange for testifying.
                Had the jury heard credible new evidence that Lisle, unlike the shooter,
                did not have facial hair, they more likely than not would have acquitted
                him.
                            Even if the new evidence of Lisle's innocence of the murder
                was not credible, he also presented new evidence of mitigating
                circumstances to demonstrate that he was actually innocent of the death
                penalty. Relying on Sawyer v. Whitley, 505 U.S. 333 (1992), the majority
                concludes that new evidence regarding aggravating circumstances can
                demonstrate actual innocence of the death penalty but that new evidence
                of mitigating circumstances cannot. We disagree.
                            The Sawyer Court affirmed the idea suggested in earlier cases
                that a defendant could be "actually innocent" of the death penalty but
                limited the inquiry to "those elements that render a defendant eligible for
                the death penalty." Sawyer, 505 U.S. at 343, 347. Eligibility for the death
                penalty in Nevada is set out in NRS 175.554(3), which states, "The jury
                may impose a sentence of death only if it finds at least one aggravating
                circumstance and further finds that there are no mitigating circumstances
                sufficient to outweigh the aggravating circumstance or circumstances
                found." The plain meaning of a statute controls its interpretation.   State v.
                Lucero, 127 Nev. 92, 95, 249 P.3d 1226, 1228 (2011). Here, the plain
                language of NRS 175.554(3) is that a defendant is eligible for the death
                penalty only if two elements are met: the jury finds at least one
                aggravating circumstance and the jury finds no mitigating circumstances
                outweigh the aggravating circumstance(s). Only after the jury has found

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                the defendant death-eligible does it decide whether death should be
                imposed. See NRS 175.554(2)(c) This court has for decades unequivocally
                and consistently followed this straightforward interpretation of Nevada's
                death penalty scheme.    See, e.g., Servin v. State, 117 Nev. 775, 786, 32
                P.3d 1277, 1285 (2001) ("In order to determine that a defendant is eligible
                for the death penalty, (1) the jury must unanimously find, beyond a
                reasonable doubt, at least one enumerated aggravating circumstance; and
                (2) each juror must then individually determine that mitigating
                circumstances, if any exist, do not outweigh the aggravating
                circumstances."); accord Butler v. State, 120 Nev. 879, 895, 102 P.3d 71, 82
                (2004); Johnson v. State, 118 Nev. 787, 802, 59 P.3d 450, 460 (2002),
                overruled on other grounds by Nunnery v. State, 127 Nev., Adv. Op. 69, 263
                P.3d 235, 250-51 (2011); Evans v. State, 117 Nev. 609, 634, 28 P.3d 498,
                515 (2001); Holloway v. State, 116 Nev. 732, 745, 6 P.3d 987, 996 (2000);
                Middleton v. State, 114 Nev. 1089, 1116-17, 968 P.2d 296, 314-15 (1998);
                Geary v. State, 110 Nev. 261, 267, 871 P.2d 927, 931 (1994); Gallego v.
                State, 101 Nev. 782, 790, 711 P.2d 856, 862 (1985).
                            Where the meaning of a statute is plain on its face, we do not
                look beyond that meaning. Lucero, 127 Nev. at 95, 249 P.3d at 1228. Yet
                the majority opinion does just that. Rather than rely on the plain
                meaning of Nevada statutes, the majority jumps to policy concerns the
                Sawyer Court expressed, then engages in semantic gymnastics in order to
                conclude that Nevada's death penalty scheme is something other than
                what the statutes plainly make it. The Sawyer Court and the majority
                appear to be concerned with making the actual-innocence inquiry
                "workable" But if to make the death penalty and its attendant post-
                conviction proceedings "workable" means that we ignore new evidence that

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                                                     3
                  demonstrates that a defendant should not have been sentenced to death,
                  then perhaps the death penalty itself is not workable.
                              In the instant case, Lisle produced detailed reports from two
                  mental health experts who made extensive findings regarding the
                  existence and impact of years of childhood abuse and neglect that Lisle
                  suffered at the hands of his mother, her boyfriends, and his older brother;
                  injury to his brain; and a list of untreated but often well-documented
                  mental health issues. This new evidence went far beyond the tepid
                  mitigation evidence offered at trial that consisted of lay witnesses
                  describing Lisle's basically good demeanor as a child and how much he
                  meant to them, that his mother was unkind, and that he suffered isolated
                  incidents of abuse from his older brother and his mother's boyfriends.
                  This new evidence of mitigating circumstances also would have rebutted
                  the State's evidence depicting Lisle as a criminal from age 11, instead
                  recasting many of the specific instances elicited by the State at the
                  sentencing hearing as misguided juvenile attempts to meet his own basic
                  needs (including food and shelter) and explaining the remaining events as
                  products of his childhood abuse and/or untreated mental and neurological
                  disorders. This new mitigation information is, if credible, clear and
                  convincing evidence that Lisle was not death-eligible. See Pellegrini, 117
                  Nev. at 887, 34 P.3d at 537 (stating the standard for a claim of actual
                  innocence of the death penalty).
                              Lisle presented new evidence demonstrating his actual
                  innocence of both the murder and the death penalty. Had that evidence
                  been presented to the jury, it is more likely than not that no reasonable
                  juror would have convicted him or sentenced him to death. We would


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                therefore remand this matter to the district court to conduct an
                evidentiary hearing to determine the credibility of Lisle's new evidence.



                                                                                            J.
                                                          Cherry


                                                                                            J.
                                                          Saitta




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