                           IN THE SUPREME COURT OF THE STATE OF NEVADA


                    RICHARD CANAPE,                                          No. 62843
                    Appellant,
                    vs.
                    THE STATE OF NEVADA,                                        FILED
                    Respondent.
                                                                                MAY 1 9 2016



                                         ORDER AFFIRMING IN PART,
                                     REVERSING IN PART AND REMANDING
                                 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; Elissa F. Cadish, Judge.
                                  In 1988, appellant Richard Canape robbed and killed Manuel
                    Toledo. After a jury trial, he was convicted of first-degree murder with use
                    of a deadly weapon and robbery with use of a deadly weapon. The State
                    sought the death penalty and alleged four aggravating circumstances: (1)
                    Canape had previously been convicted of a crime involving violence, (2) he
                    committed the murder to avoid arrest, (3) he committed the murder
                    during the course of a robbery, and (4) the murder showed depravity of
                    mind. The jury found all four aggravating circumstances and that there
                    were no mitigating circumstances sufficient to outweighS them and
                    imposed a death sentence. This court affirmed the judgment and sentence
                    on appeal.     Cat-tape v. State, 109 Nev. 864, 883, 859 P.2d 1023, 1035
                    (1993). Canape then filed a postconviction petition for a writ of habeas
                    corpus. While the petition was pending, Canape underwent several
                    psychological evaluations. The district court conducted evidentiary
                    hearings, where the experts who conducted the evaluations and trial
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                counsel testified. The district court denied the petition. This appeal
                followed.
                            Canape contends that the district court erred by denying his
                petition, which included claims of ineffective assistance of counsel.' 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 Strickland); Kirksey v. State, 112 Nev. 980, 998,
                923 P.2d 1102, 1114 (1996) (applying Strickland to appellate counsel). 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).


                       'Several of Canape's claims are either inappropriately presented to
                this court in the first instance, see Davis v. State, 107 Nev. 600, 606, 817
                P.2d 1169, 1173 (1991), overruled on other grounds by Means v. State, 120
                Nev. 1001, 103 P.3d 25 (2004), were abandoned below, or are procedurally
                barred because they could have been raised on direct appeal, see NRS
                34.810(1)(b). For these reasons, we decline to consider Canape's claims
                that (1) the prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986), (2)
                the trial court erred by denying counsel's motion to withdraw, (3) the trial
                court erred by failing to instruct the jury regarding "other matter"
                evidence, (4) counsel was ineffective for failing to ensure that the jury was
                instructed to find that the aggravating circumstances outweighed the
                mitigating circumstances beyond a reasonable doubt, (5) the "previously
                convicted of a crime of violence" aggravator is invalid, and (6) he is
                incompetent to be executed because he is "mentally retarded."


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                      MUM
                 Guilt phase
                               First, Canape contends that the district court erred by denying
                 his claim that counsel was ineffective for conceding his guilt at trial. We
                 disagree because counsel did not concede Canape's guilt; he conceded that
                 someone murdered and robbed Toledo but argued that Canape was not
                 that person. Counsels argument was reasonable given the evidence.
                 Therefore, we conclude that the district court did not err by denying this
                 claim.
                               Second, Canape contends that the district court erred by
                 denying his claim that counsel was ineffective for failing to object to
                 prosecutorial misconduct at trial and failing to challenge misconduct on
                 appea1. 2 We disagree. Counsel testified at the evidentiary hearing that he
                 made a strategic decision not to object to the prosecutor's statements at
                 trial and the district court determined that counsel was credible. Counsel
                 testified that he raised other instances of misconduct on appeal because he
                 did not feel that the alleged misconduct pointed out by Canape was worth
                 challenging. These decisions were reasonable under the circumstances.
                 See Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989) (explaining
                 that appellate counsel will be most effective when every conceivable issue
                 is not raised on appeal). Moreover, Canape fails to demonstrate prejudice.
                 See Valdez v. State,     124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008).




                          2 Canape
                                 asserts that this court should consider the misconduct he
                 challenges in his opening brief alongside "remarks objected to in [his]
                 original petition for a writ of habeas corpus." We decline to consider any
                 misconduct other than that specifically raised in his opening brief.



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                 Therefore, we conclude that the district court did not err by denying this
                 claim. 3
                                  Third, Canape contends that counsel was ineffective for failing
                 to investigate and present evidence challenging the hair and twine
                 evidence presented by the State through expert testimony. We disagree.
                 Counsel testified that he did not believe a defense expert in these areas
                 was warranted because the State's expert was only able to say that
                 Canape's hair and the twine found in his car were consistent with
                 evidence found at the scene. Canape has presented no evidence which
                 suggests that the hair and twine were dissimilar and has not
                 demonstrated that counsel's assessment of the evidence was unreasonable.
                 Therefore, we conclude that the district court did not err by denying this
                 claim.
                                  Fourth, Canape contends that the district court erred by
                 denying his claim that counsel was ineffective for failing to object to the
                 first-degree murder instruction given at trial, commonly known as the
                 Kazalyn instruction. 4 We disagree because the Kazalyn instruction was
                 appropriately given at the time of Canape's trial.       See Nika v. State, 124



                          3 The
                             transcripts from the penalty phase are incomplete. Because of
                 this, Canape contends that he is not adequately able to address the
                 prosecutor's misconduct. On direct appeal, this court considered whether
                 the lack of transcripts deprived Canape of due process or otherwise
                 prejudiced him Because the parties complied with NRAP 10(c), this court
                 held that no relief was warranted. See Canape, 109 Nev. at 871, 859 P.2d
                 at 1027. This holding constitutes the law of the case. See Hsu v. Cnty. of
                 Clark, 123 Nev. 625, 629-30, 173 P.3d 724, 728 (2007).

                          4Kazalyn   v. State, 108 Nev. 67, 825 P.2d 578 (1992).



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                         Nev. 1272, 1289, 198 P.3d 839, 851 (2008). 5 Therefore, we conclude that
                         the district court did not err by denying this claim.
                         Penalty phase
                                       Canape contends that the district court erred by denying his
                         claim that counsel was ineffective regarding the penalty phase of his trial.
                         Because we conclude that counsel was ineffective, we remand this matter
                         for the district court to grant the petition in part and order a new penalty
                         hearing.°
                                       Counsel's performance during the penalty phase of Canape's
                         trial was concerning. Counsel presented no evidence on Canape's behalf
                         and did not identify a single mitigating circumstance. Counsel began his
                         argument by apologizing for being absent when the guilty verdicts were
                         announced, explained that he was not fully prepared to argue, then
                         reminded jurors that they did not haue to execute Canape—but they could


                               5 The  Ninth Circuit recently discussed this court's Kazalyn
                         jurisprudence in Riley v. McDaniel, 786 F.3d 719, 724 (9th Cir. 2015).
                         While we do not agree with Riley, see Nika, 124 Nev. at 1280-87, 198 P.3d
                         at 845-48 (discussing the history of Nevada law on the phrase "willful,
                         deliberate, and premeditated," including Hem v. State, 97 Nev. 529, 635
                         P.2d 280 (1981), and explaining that prior to Byford v. State, 116 Nev. 215,
                         994 P.2d 700 (2000), 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 Kazalyn and Powell v. State, 108 Nev. 700, 838 P.2d 921
                         (1992)), we note that, given the verdict and the aggravating circumstances
                         found, the jury would have necessarily concluded that the murder was
                         willful, deliberate, and premeditated, or was committed in the course of a
                         felony.

                               °We need not address Canape's other claims regarding the penalty
                         hearing.



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                if they wanted to. When counsel was questioned about his performance at
                the evidentiary hearing, he explained that, at the time of Canape's trial,
                he was chief of the capital team at the Clark County Public Defender's
                Office and was "overwhelmed" with capital cases. Because counsel was
                the only attorney on the case and had no investigator, he had to
                investigate by himself while simultaneously investigating and trying his
                other cases. According to counsel, his entire mitigation investigation
                consisted of making phone calls to "a couple of people in Hawaii" who did
                not answer, as well as at least one person "back east" who did answer but
                was not helpful. Counsel also thought he "might have" sent some letters.
                Counsel explained that his investigation was limited to these actions
                because he relied on Canape to provide him with leads and Canape was
                unwilling or unable to provide more helpful information given his unstable
                background and lack of normal social contacts. The district court
                concluded that counsel's performance was reasonable given Canape's
                inability or unwillingness to aid in his own defense.
                            We conclude that counsel's performance in preparing for and
                throughout the penalty phase was deficient.      See Doe v. Ayers, 782 F.3d
                425, 435 (9th Cir. 2015) ("Death is different. So too are the lengths to
                which defense counsel must go in investigating a capital case." (internal
                alterations and citations omitted)). At the time of Canape's trial, it was
                "unquestioned" that "counsel had an 'obligation to conduct a thorough
                investigation of the defendant's background." Porter v. McCollum, 558
                U.S. 30, 39 (2009) (referencing professional norms in 1988) (quoting
                Williams v. Taylor, 529 U.S. 362, 396 (2000) (emphasis added)); Bobby v.




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                  Van Hook, 558 U.S. 4, 7 (2009) (acknowledging professional norms in
                  1980). 7 Counsel's explanation that this meager investigation was the best
                  he could do given Canape's reticence falls flat. We recognize that Canape
                  was a "poor historian." And it is true that "[c]ounsel's actions are usually
                  based, quite properly, on . . . information supplied by the defendant."
                  Strickland, 466 U.S. at 691. But the mere fact that a client is "fatalistic or
                  uncooperative does not obviate the need for defense counsel to conduct
                  some sort of mitigation investigation," Porter, 558 U.S. at 40. Canape's
                  failure, for whatever reason, to provide counsel with more helpful
                  information did not relieve counsel of his responsibility to conduct a
                  thorough investigation, see Ayers, 782 F.3d at 435 ("[Al lawyer has not
                  fulfilled his duties to his client if he ceases investigating because his client
                  has not been forthcoming about his background."); Rompilla v. Beard, 545
                  U.S. 374, 381 (2005) (holding that counsel failed to conduct an effective
                  mitigation investigation even though the defendant was "uninterested" in
                  helping and "was even actively obstructive by sending counsel off on false
                  leads"), it simply meant that counsel had to utilize other sources,          see
                  Porter, 558 U.S. at 40; Johnson v. Bagley, 544 F.3d 592, 603 (6th Cir.

                        7 Counsel'sfailure to utilize an investigator under the circumstances
                  was inconsistent with prevailing professional norms around the time of his
                  performance. See, e.g., National Legal Aid and Defender Association:
                  Standards for the Performance of Counsel in Death Penalty Cases,
                  adopted December 1, 1987; American Bar Association: Guidelines for the
                  Appointment and Performance of Counsel in Death Penalty cases, adopted
                  1989 ("An attorney leading a mitigation investigation should conduct
                  interviews in the presence of a third person who will be available, if
                  necessary, to testify as a defense witness at trial. Alternatively, counsel
                  should have an investigator or mitigation specialist conduct the
                  interviews.").



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                2008) ("Uncooperative defendants . . . do not shield a mitigation
                investigation . . . if the attorneys unreasonably failed to utilize other
                available sources."). And the record demonstrates that counsel was aware
                of and had access to other sources of information about Canape which he
                failed to adequately develop.   See Wiggins v. Smith,    539 U.S. 510, 524

                (2003) (holding that counsel's investigation was unreasonable when he
                failed to follow up on potential mitigation information in his possession). 8
                The little information about Canape that counsel admittedly possessed—
                that he came from a disruptive background, dropped out of school and left
                his family at an early age, and lacked meaningful social contacts—went
                unmentioned at the penalty phase, and counsel did not clearly articulate
                any reasons why Canape was not worthy of death. 9 We conclude that
                counsel's performance fell below an objective standard of reasonableness.
                              We also conclude that counsel's deficient performance
                prejudiced Canape.     See Strickland, 466 U.S. at 694 CA reasonable
                probability is a probability sufficient to undermine confidence in the
                outcome."); Silva v. Woodford,      279 F.3d 825, 847 (9th Cir. 2002)
                (explaining that "we must be especially cautious in protecting a



                      8 Forexample, counsel testified that he possessed some of Canape's
                prior records and presentence investigation reports which contained more
                information than he had learned from "months" of talking to Canape.

                      9 Given  counsel's failure to adequately investigate, his decisions
                regarding which strategy to pursue during the penalty phase are not
                entitled to deference. See Ayers, 782 F.3d at 444 ("[D]efense counsel failed
                to make a reasonable investigation into potential mitigating evidence.
                Therefore, his decision not to put on a mitigation case cannot be
                considered to be the product of a strategic choice.").



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                defendant's right to effective counsel at a capital sentencing hearing").
                "Because a sentencing jury is given broad latitude to consider amorphous
                human factors, in effect, to weigh the worth of one's life against his
                culpability, . . the presentation of relevant mitigation evidence is of vital
                importance to the jury's penalty determination." Frierson u. Woodford, 463
                F.3d 982, 993 (9th Cir. 2006) (emphasis added and internal quotation
                marks omitted); see also Mayes v. Gibson, 210 F.3d 1284, 1288 (10th Cir.
                2000) (explaining that the presentation of mitigation evidence plays an
                "overwhelming" role in the just imposition of the death penalty, as it
                "affords an opportunity to humanize and explain—to individualize a
                defendant outside the constraints of the normal rules of evidence"). Here,
                the jury heard a great deal about the crime and the reasons why Canape
                was worthy of death, but nothing about his troubled past or any other
                evidence which might have humanized or individualized him. As a result,
                the jury was given nothing to meaningfully aid it in its task of accurately
                evaluating Canape's death worthiness. Importantly, the State's case in
                aggravation was not strong, 1 ° and the murder, while reprehensible, does
                not qualify as "the worst of the worst."   See Burnside v. State, 131 Nev.,
                Adv. Op. 40, 352 P.3d 627, 653 (2015) (Cherry, J., dissenting). Counsel's
                failure to develop and present a mitigation case coupled with his
                unfocused argument that, in our view, only reinforced the State's



                      1 °TheState concedes that the "committed during the course of a
                robbery" and depravity-of-mind aggravating circumstances are no longer
                valid. Because we conclude that Canape is entitled to a new penalty
                hearing on other grounds, we need not address whether he is entitled to a
                new penalty hearing pursuant to McConnell v. State, 120 Nev. 1043, 102
                P.3d 606 (2004).


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                     argument that Canape was worthy of death, renders the result of the
                     penalty hearing fundamentally unreliable.       See Riley v. State, 110 Nev.
                     638, 648, 878 P.2d 272, 279 (1994) ("Prejudice in an ineffective assistance
                     of counsel claim is shown when the reliability of the jury's verdict is in
                     doubt"); Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (recognizing that a
                     reviewing court must consider "whether counsel's deficient performance
                     renders the result of the trial unreliable or the proceeding fundamentally
                     unfair"). Therefore, we
                                    ORDER the judgment of the district court AFFIRMED IN
                     PART AND REVERSED IN PART AND REMAND this matter to the
                     district court for proceedings consistent with this order.


                                               -fp
                                               Parraguirre


                           Aiseta
                     Hardesty



                                                                  Saitta



                     Gibbons                                      Pickering


                     cc:    Hon. Elissa F. Cadish, District Judge
                            Christopher R. Oram
                            Attorney General/Carson City
                            Clark County District Attorney
                            Eighth District Court Clerk

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