                           IN THE SUPREME COURT OF THE STATE OF NEVADA


                  KITRICH A. POWELL,                                     No. 53112
                  Appellant,
                  vs.
                  THE STATE OF NEVADA,
                                                                                  FILED
                  Respondent.                                                      JUN 2 4 2016
                                                                                   TRACIE K LINDEMAN
                                                                                CLEFt F SUPREME COURT


                                          ORDER OF AFFIRMANCE                        DEPUTY CLERK


                              This is an appeal from an order of the district court dismissing
                  appellant Kitrich Powell's postconviction petition for a writ of habeas
                  corpus. Eighth Judicial District Court, Clark County; Kenneth C. Cory,
                  Judge.
                              Based on evidence that Powell subjected four-year-old Melea
                  Allen to repeated abuse which resulted in a variety of injuries, one of
                  which caused her death, a jury convicted him of first-degree murder and
                  sentenced him to death. This court affirmed the conviction and sentence.
                  Powell v. State, 108 Nev. 700, 838 P.2d 921 (1992), vacated, 511 U.S. 79
                  (1994), remanded to Powell v. State, 113 Nev. 41, 930 P.2d 1123 (1997).
                  Powell unsuccessfully sought relief in a prior postconviction petition.           See
                  State v. Powell, Docket No. 39878 (Order Affirming in Part, Reversing in
                  Part and Remanding, August 22, 2003); State v. Powell, 122 Nev. 751, 138
                  P.3d 453 (2006). On February 15, 2008, Powell filed the instant
                  postconviction petition in the district court. The district court dismissed
                  the petition as procedurally barred.' This appeal followed.



                         'Powell contends that the district court failed to adequately address
                  all his claims in its findings of fact and conclusions of law. We disagree.
                  The order explains the district court's basis for denying relief with
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                  Procedural bars
                               Powell's petition is subject to several procedural bars. First, to
                  the extent Powell alleged trial error, those claims were appropriate for
                  direct appeal and thus subject to dismissal for waiver pursuant to NRS
                  34.810(1)(b)(2). 2 Second, the petition was untimely as it was filed over one
                  year after this court issued its remittitur on direct appeal. NRS 34.726(1).
                  Third, to the extent that the petition raised new claims, this petition
                  constituted an abuse of the writ and to the extent that it raised claims
                  that had been litigated in the first petition, the petition is successive.
                  NRS 34.810(2). To overcome these procedural bars, Powell had to
                  demonstrate good cause and prejudice.             See NRS 34.726(1); NRS
                  34.810(1)(b), (3).
                               Ineffective assistance of prior counsel
                               Powell contends that the district court erred in dismissing his
                  petition as procedurally barred because the ineffective assistance of
                  postconviction counsel provided him with good cause to excuse the
                  procedural bars. 3 When postconviction counsel is appointed pursuant to a


                        2 Some of the trial-error claims were previously rejected by this court
                  on the merits and thus further consideration of them is barred by the
                  doctrine of the law of the case. Hall ix State, 91 Nev. 314, 315-16, 535
                  P.2d 797, 798-99 (1975).

                        3 Powell argues that the district court erred by relying upon
                  procedural default rules because this court applies them inconsistently
                  and in its discretion. Because this court has repeatedly rejected this
                  argument, see, e.g., State v. Eighth Judicial Dist. Court (Riker), 121 Nev.
                  225, 236, 112 P.3d 1070, 1077 (2005); Pellegrini v. State, 117 Nev. 860,
                  886, 34 P.3d 519, 536 (2001), we reject it here as well. Powell also asserts
                  that any delay in filing the instant petition was not his fault. NRS
                  34.726(1) requires "a petitioner [to] show that an impediment external to
                  the defense prevented him or her from complying with the state
                  procedural default rules." Hathaway v. State, 119 Nev. 248, 252, 71 P.3d
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                statutory mandate, the petitioner is entitled to the effective assistance of
                that counsel," and the ineffective assistance of that counsel may be good
                cause for a successive petition. Crump   V.   Warden, 113 Nev. 293, 303, 934
                P.2d 247, 253 (1997). "Mo constitute adequate• cause, the ineffective
                assistance of counsel claim itself must not be procedurally defaulted."
                Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003); see also
                Edward v. Carpenter, 529 U.S. 446, 452-53 (2000) (concluding that claim
                of ineffective assistance of counsel cannot serve as cause for another
                procedurally defaulted claim where ineffective-assistance claim is also
                subject to procedural default). In other words, a petition must
                demonstrate cause for raising the ineffective-assistance-of-counsel claims
                in an untimely fashion. See NRS 34.726(1); Pellegrini, 117 Nev. at 869-70,
                34 P.3d at 526 (holding that the time bar of NRS 34.726 applies to
                successive petitions).
                            Powell failed to explain how postconviction counsel's alleged
                deficiencies precluded him from filing this petition until roughly 18
                months after this court resolved his first postconviction petition. While he
                was litigating his federal petition during this time, that does not amount
                to good cause.   See Colley v. State, 105 Nev. 235, 773 P.2d 1229 (1989),
                superceded by statute as stated in State 1). Huebler, 128 Nev. 192, 275 P.3d
                91 (2012). Powell suggests that his claim that first postconviction counsel


                ...continued
                503, 506 (2003). This language contemplates that the delay in filing a
                petition must be caused by a circumstance not within the control of the
                defense team as a whole, not solely the defendant. Considering the nature
                and purpose of legal representation, we conclude that Powell's view that
                NRS 34.726(1) contemplates only delay personally caused by a petitioner
                is untenable. Therefore, the district court did not err in rejecting this
                claim of good cause.
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                 was ineffective for failing to investigate the victim's cause of death was not
                 reasonably available until he obtained the declarations from expert
                 witnesses, including one from the medical examiner who testified at trial,
                 which acknowledge uncertainty regarding the conclusions presented at
                 trial. However, Powell failed to explain the nearly 8-month delay in
                 obtaining the first declaration and the subsequent 10-month delay in
                 obtaining the second declaration, which resulted in the 18-month delay in
                 filing his petition. Powell did not allege that any external impediment to
                 the defense prevented him from obtaining both declarations earlier. The
                 18-month delay was not reasonable.        See Hathaway, 119 Nev. at 252, 71
                 P.3d at 506; see also Rippo v. State, 132 Nev., Adv. Op. 11, at 19 P.3d
                            (2016) (providing that claims of ineffective assistance of
                 postconviction counsel are timely if raised within one year after the
                 issuance of remittitur on the first postconviction appeal). As the
                 postconviction counsel claim was not asserted in a timely fashion, the
                 district court did not err in rejecting it as good cause for the untimely and
                 successive petition.
                 Fundamental miscarriage of justice
                             Powell argues that the district court erred in rejecting his
                 gateway claims of actual innocence of first-degree murder and of the death
                 penalty. When a petitioner cannot demonstrate good cause, the district
                 court may nonetheless excuse a procedural bar if the petitioner
                 demonstrates that failure to consider the petition would result in a
                 fundamental miscarriage of justice. Pellegrini, 117 Nev. at 887, 34 P.3d at
                 537.
                             Actual innocence of first-degree murder
                             Powell argues that the district court erred in concluding that
                 he failed to demonstrate that he is actually innocent of first-degree
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                murder. He contends that the declarations of expert witnesses concerning
                Melea's cause of death make it impossible to conclude that she died as a
                result of abuse rather than an accidental fall. We conclude that this
                argument lacks merit.
                             A fundamental miscarriage of justice requires "a colorable
                showing" that the petitioner is "actually innocent of the crime." Id. This
                requires that the petitioner present new evidence of his innocence.     See
                House v. Bell, 547 U.S. 518, 537 (2006) ("[A] gateway claim requires 'new
                reliable evidence—whether it is exculpatory scientific evidence,
                trustworthy eyewitness accounts, or critical physical evidence—that was
                not presented at trial." (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995));
                Schlup, 513 U.S. at 316 ("Without any new evidence of innocence, even the
                existence of a concededly meritorious constitutional violation is not in
                itself sufficient to establish a miscarriage of justice that would allow a
                habeas court to reach the merits of a barred claim."). When claiming a
                fundamental miscarriage of justice based on actual innocence, the
                petitioner "must show that it is more likely than not that no reasonable
                juror would have convicted him absent a constitutional violation."
                Pellegrini, 117 Nev. at 887, 34 P.3d at 537. In this context, "actual
                innocence means factual innocence, not mere legal insufficiency." Mitchell
                v. State,   122 Nev. 1269, 1273-74, 149 P.3d 33, 36 (2006) (internal
                quotation marks and alterations omitted). In deciding whether the
                petitioner has made that showing, the court must consider the petitioner's
                claimed innocence in light of all the evidence—both the new and the old.
                See Berry v. State, 131 Nev., Adv. Op. 96, 363 P.3d 1148, 1155-56 (2015).
                             The new evidence consists of two declarations from medical
                experts, including the medical examiner who testified at trial, that
                recognize the possibility that Melea died as the result of a fall from
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                Powell's shoulders. However, the medical examiner's opinion was not the
                only evidence produced at trial that Powell's abuse caused Melea's injuries
                and death. Two other doctors opined at trial that her injuries were not
                caused by accidents. Further, all the medical experts acknowledged at
                trial that there was some doubt regarding their respective conclusions, so
                the doubt asserted in the postconviction petition is not entirely new. In
                addition to the medical testimony, Melea's sister testified that Powell
                sought exculpatory evidence from her and later threatened her and during
                that threat, admitted that he killed Melea. Considering the total record,
                Powell has not demonstrated that the district court erred in concluding
                that he could not have demonstrated that the new evidence was so
                persuasive that no reasonable juror would have convicted him in light of
                all the evidence.
                            Actual innocence of the death penalty
                            Powell argues that the district court erred in rejecting his
                gateway claim that new mitigation evidence demonstrates that he is
                actually innocent of the death penalty. We disagree. When claiming a
                fundamental miscarriage of justice based on ineligibility for the death
                penalty, the petitioner "must show by clear and convincing evidence that,
                but for a constitutional error, no reasonable juror would have found him
                death eligible."    Pellegrini, 117 Nev. at 887, 34 P.3d at 537. Because
                Powell does not assert that any aggravating circumstance is invalid, he
                failed to demonstrate that he was actually innocent of the death penalty.
                See Lisle v. State, 131 Nev., Adv. Op. 39, 351 P.3d 725, 732 (2015) (noting
                that gateway claim that petitioner is actually innocent of the death
                penalty must focus on the elements of the crime and the aggravating
                circumstances rather than new mitigation evidence). Therefore, the

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                 district court did not err in rejecting this effort to avoid the procedural
                 bars. 4
                                   Having considered Powell's contentions and concluded that
                 they lack merit, we
                                   ORDER the judgment of the district court AFFIRMED.



                                                MA _3- cs-   cC
                                              Parraguirre        u


                                                                               titic    ,J.
                                                                     Douglas



                 Gibbons
                                                                        P&utlip
                                                                     Pickering


                 CHERRY, J., with whom, SAITTA, J., agrees, dissenting:
                                   The majority concludes that Powell's postconviction-counsel
                 claim was untimely because it was raised over one year after the final
                 disposition of his first postconviction petition. I disagree. In my view the
                 appropriate test is one of reasonableness that must be determined on a
                 case-by-case basis considering all of the circumstances contributing to the
                 delay rather than a bright-line rule that is not clearly required by NRS


                           4 The
                             State also pleaded laches under NRS 34.800. Powell failed to
                 show that he was reasonably diligent in discovering the facts underlying
                 the claims and therefore could not overcome the presumption of prejudice
                 to the State in litigating the petition. See NRS 34.800(1)(a). As Powell
                 failed to demonstrate that the failure to consider his claims would result
                 in a fundamental miscarriage of justice, he failed to overcome the
                 presumed prejudice to the State in retrying him. See NRS 34.800(1)(b).
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                   34.726.   See Rippo v. State, 132 Nev., Adv. Op. 11, 368 P.3d 729, 756
                   (2016) (Cherry, J., dissenting). Powell's claim of ineffective assistance of
                   postconviction counsel depended on evidence from two independent
                   medical experts, Dr. Giles Green and Dr. Karen Griest. Although the
                   petition was promptly filed after Powell received Dr. Green's declaration,
                   the majority faults Powell for the delay in obtaining the declarations.
                   That strikes me as unfair. The experts had to review testimony, other
                   trial evidence, and the medical literature on childhood injuries.
                   Regardless of Powell's diligence in developing this claim, when he could
                   file the claim was ultimately within the control of these witnesses.
                   Considering the nature of the evidence and literature that the experts had
                   to review and the reasonable assumption that Powell's case was not the
                   sole focus of their professional schedule, I would remand this matter for
                   the district court to conduct an evidentiary hearing on whether the delay
                   was reasonable.
                               Assuming that the delay was reasonable, I believe that Powell
                   made sufficient allegations to warrant an evidentiary hearing to
                   determine whether his postconviction-counsel claim has merit and
                   therefore satisfies the prejudice prong of the good-cause showing required
                   under NRS 34.726 and both the good-cause and prejudice showings
                   required under NRS 34.810(1)(b) and (2).       See id. at 740-42 (majority
                   opinion). At trial, the medical examiner, Dr. Green, testified that Melea's
                   death was a homicide. He opined that, based on the presence of injuries of
                   various ages, Melea's injuries were more than the result of usual
                   childhood or accidental activity. In his petition, Powell alleged that new
                   expert evidence called this conclusion, the very crux of the charges against
                   him, into substantial doubt. Dr. Griest, after reviewing medical literature,
                   opined that Melea's injuries were consistent with a fall. Further, the
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                medical testimony at trial grossly misrepresented the available literature.
                After reviewing Dr. Griest's declaration, Dr. Green acknowledged that a
                fall could have caused Melea's injuries. Further, he "cannot state, within
                any reasonable degree of medical certainty, that Mr. Powell intentionally
                caused Melea Allen's death[,]" or "could not determine the degree of Mr.
                Powell's culpability." In my view, this evidence casts substantial doubt on
                the testimony that Powell murdered Melea, or that her death was even a
                homicide at all, and could be sufficient to meet the prejudice prong of the
                ineffective-assistance claims provided that Powell is able to demonstrate
                that postconviction counsel was deficient for failing to raise an ineffective
                assistance of trial counsel claim based on the failure to investigate and
                present this evidence.    Strickland v. Washington, 466 U.S. 668, 687-88
                (1984).
                            I also disagree with the majority's conclusion that the district
                court did not err in denying Powell's claim that he was actually innocent of
                the death penalty based on new mitigating evidence. In Lisle v. State, 131
                Nev., Adv. Op. 39, 351 P.3d 725, 732 (2015), a majority of this court held
                that a gateway claim of actual innocence of the death penalty must focus
                on the elements of the crime and the aggravating circumstances rather
                than new mitigation evidence. I disagreed with that decision as it fails to
                appreciate the plain language of the statute, id. at 734-36 (Cherry and
                Saitta, JJ., dissenting), and accordingly, disagree with the decision
                reached in this case for the same reason. Here, Powell presented
                mitigating evidence detailing the horrendous abuse his father, an
                alcoholic, and mother, a paranoid schizophrenic, visited upon Powell and
                his siblings. Powell was once thrown down stairs and his mother
                attempted to stab his sister. Although they eventually moved to their
                grandmother's home, she beat the children with a cane and forced them to
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                     eat cigarette butts. Psychiatric records indicated that Powell's in utero
                     exposure to drugs and his childhood concussions resulted in neurological
                     deficits. He was paranoid, prone to anger, and suffered depression.
                     Powell's neurological impairments, coupled with his tumultuous
                     childhood, gave rise to his aggressive and disinhibited personality If
                     credible, the new mitigation material is clear and convincing evidence that
                     Powell is actually innocent of the death penalty.   See Pellegrini v. State,
                     117 Nev. 860, 887, 34 P.3d 519, 537 (2001) (observing the standard for a
                     claim of actual innocence). Accordingly, I would reverse and remand for
                     an evidentiary hearing to determine whether Powell could demonstrate
                     that no reasonable juror would have found him death eligible had he
                     presented the significant evidence his abusive upbringing and psychiatric
                     conditions.



                                                                                            J.
                                                                Cherry




                                                    J.
                     Saitta

                     cc:      Eighth Judicial District Court
                              Federal Public Defender/Las Vegas
                              Clark County District Attorney
                              Attorney General/Las Vegas
                              Eighth District Court Clerk
                              Kitrich A. Powell




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