Category: Inmate

Can a petitioner present new mitigating evidence to show innocence of the death penalty?

Posted on by Jeff Jaeger

Lisle v. State (Nev. Supreme Ct. – June 25, 2015)

The issue is whether a claim of actual innocence of the death penalty offered as a gateway to reach a procedurally defaulted post conviction relief claim can be based on a showing of new evidence of mitigating circumstances.

On the evening of October 22, 1994, Melcher was driving on a Las Vegas freeway and pulled his van alongside a Mustang driven by Logan. Lisle, the front passenger in Melcher’s van, shot and killed Logan. 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. The Nevada Supreme Court affirmed the judgment and sentence.

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 the Nevada Supreme Court affirmed the district court’s order. Lisle filed his second post-conviction habeas petition, claiming that he received ineffective assistance of trial, appellate, and post-conviction counsel. The district court dismissed the petition as procedurally barred. Lisle appealed.

Lisle argued, among other issues, that he was actually innocent of the death penalty on two grounds. First, he argued that there was insufficient evidence of the single aggravating circumstance found by the jury. Second, he argued 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 Nevada Supreme Court found that the first ground underlying Lisle’s actual-innocence claim, based on a challenge to the aggravating circumstance, lacked merit. Lisle pointed to no new evidence supporting his claim of actual innocence with respect to the aggravating circumstance. Nor did his arguments present any issue of first impression as to the legal validity of the aggravating circumstance. Accordingly, Lisle had not demonstrated actual innocence based on his challenge to the aggravating circumstance, and the Court concluded 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 presented an issue of first impression for the 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 the Court had not answered that question, 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. 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. 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. 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. The Court agreed 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.

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Must inmates exhaust their administrative remedies before filing a state civil rights action?

Posted on by Jeff Jaeger

Berry v. Feil (Nev. Ct. App. – June 11, 2015)

The issue is whether civil rights complaints filed by inmates under 42 U.S.C. § 1983 in Nevada state courts are subject to the exhaustion of administrative remedies requirement imposed by the federal Prison Litigation Reform Act of 1995’s (PLRA) amendment of 42 U.S.C. § 1997e(a).

Berry, an inmate, filed a civil rights complaint against Feil, the Lovelock Correctional Center law library supervisor, and Brown, an inmate library clerk, in the Sixth Judicial District Court pursuant to 42 U.S.C. § 1983. In his complaint, Berry alleged that Feil and Brown failed to mail his confidential legal mail and conspired to hide evidence of this alleged transgression, and that Feil retaliated against Berry for filing a grievance against her by refusing his requests for legal supplies and confiscating his books. Based on these allegations, the complaint asserted violations of Berry’s right to free speech under the First Amendment to the United States Constitution and his rights to due process and unobstructed access to the courts under the Fifth and Fourteenth Amendments.

Feil subsequently moved to dismiss the complaint for failure to exhaust administrative remedies. While Feil acknowledged that Berry filed grievances regarding the incidents alleged in his complaint, she asserted he nonetheless failed to exhaust his administrative remedies because he did not complete all the steps of the grievance process as required by federal law. In response, Berry moved to strike the motion to dismiss. Although he did not file a separate, specifically labeled opposition to the motion to dismiss, his motion to strike included substantive arguments addressing the grounds on which Feil sought to have his complaint dismissed, and thus, despite its title, it effectively operated as both a motion to strike and an opposition to Feil’s motion. The district court subsequently dismissed Berry’s entire complaint without prejudice based on his failure to exhaust his administrative remedies. Berry appealed.

The Nevada Court of Appeals explained that Congress enacted the Prison Litigation Reform Act of 1995 (PLRA) in an effort to curb a sharp rise in prisoner litigation that had occurred in the years preceding its passage. Among other things, the PLRA amended 42 U.S.C. § 1997e(a) to provide that no action shall be brought with respect to prison conditions under 42 U.S.C. § 1983 or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

In its order dismissing the complaint, the district court noted that § 1997e(a) limits inmates’ abilities to file civil rights actions relating to prison conditions by requiring them to first exhaust all available administrative remedies. Thus, because it found Berry failed to exhaust his administrative remedies, the district court concluded Berry’s complaint must be dismissed pursuant to the PLRA. On appeal, Berry argued, among other issues, that the district court erred in applying the PLRA’s exhaustion requirement to his state court civil rights action, even though his case was brought under § 1983.

The district court relied on § 1997e(a) in dismissing Berry’s underlying action based on its determination Berry had failed to exhaust his administrative remedies prior to filing his civil rights complaint. On appeal from this determination, Berry insinuated that § 1997e(a) did not apply to his complaint because it was brought in state, rather than federal court. The Nevada Court of Appeals explained that contrary to Berry’s argument, federal and state courts that have been confronted with this issue have widely recognized that the PLRA’s exhaustion requirement applies to § 1983 actions filed in state courts.

Accordingly, the Court concluded the PLRA’s exhaustion requirement set forth in § 1997e(a) applies to inmate § 1983 civil rights actions challenging prison conditions filed in Nevada state courts. Here, Berry did not dispute that his complaint, which alleged, among other things, that Feil and Brown tampered with his legal mail and that Feil retaliated against him for filing a grievance against her, challenged his conditions of confinement. Therefore, the Court found that under these circumstances, the district court did not err in applying § 1997e(a)’s exhaustion requirement to Berry’s claims.

Are individuals injured while in a prison work release program covered by workers’ comp?

Posted on by Jeff Jaeger

Nev. Dep’t of Corrs. v. York Claims Servs. (Nev. Supreme Ct. – May 07, 2015)

NRS 616B.028(1) entitles a person to coverage under the modified program of industrial insurance established by regulations adopted by the State of Nevada Division of Insurance if that person is an offender confined at the state prison, while engaged in work in a prison industry or work program. The issue is whether the State or a private employer is responsible for workers’ compensation coverage for individuals injured while in a prison work release program. More specifically, does NRS 616B.028(1) apply to offenders participating in a work release program.

In 2010, Piper, who was convicted and imprisoned for burglary two years earlier, was transferred to Casa Grande Transitional Housing in Las Vegas, Nevada, to serve out the remainder of his sentence. Casa Grande is similar to a halfway house and is operated by the Nevada Department of Corrections (NDOC) for offenders participating in NDOC’s work release program. Among other various rules and restrictions, an offender at Casa Grande must either have a job or be in the process of searching for a job in the private sector.

Washworks Rainbow, LLC, a full-service car wash in Las Vegas, hired Piper to wipe down vehicles after they were washed. Washworks paid premiums on behalf of Piper to York so that Piper was covered under its workers’ compensation insurance coverage, just as Washworks did for all of its employees. After discovering that Piper had a background in gardening, Washworks’ owner, Olden, asked Piper to trim some trees on Washworks’ property. While trimming the trees, Piper fell off his ladder and struck his head on the ground. Piper, rendered unconscious by the fall, suffered a traumatic brain injury and was taken to the hospital. An emergency craniotomy was performed in order to accommodate brain swelling, essentially saving Piper’s life. Over the next four months, Piper underwent various brain surgeries and was transferred between hospitals and rehabilitation centers.

Following Piper’s injury, Olden submitted the standard insurance forms he used anytime an employee was injured. York, the workers’ compensation insurance provider for Washworks, notified Piper that it denied his claim from his ladder fall. York asserted that Piper was in the legal custody of NDOC while working at Washworks. Thus, York asserted that pursuant to NRS 209.492 and NRS 616B.028, NDOC was financially responsible for Piper’s workers’ compensation coverage under its own insurance program.

NDOC and the State of Nevada Risk Management (Risk Management) appealed York’s denial of coverage to the State of Nevada Department of Administration Hearings Division. The assigned hearing officer found that York’s denial of Piper’s claim was improper. The hearing officer concluded that York was responsible for coverage because Piper was injured in the course and scope of his employment at Washworks.

Eight days later, while walking around his recovery facility, Piper suffered a major seizure and fell, striking his head. Once again, Piper required emergency brain surgery. York notified Piper that it would not cover any medical charges following the date of his second head injury. York asserted that Piper’s second head injury was not work-related nor was it a result of his first head injury because the seizure was a nonindustrial intervening event.

Following York’s second coverage denial, Piper, NDOC, Risk Management, and York stipulated to forego the initial hearing on York’s second denial of coverage and consolidate both issues—York’s challenge of the hearing officer’s decision and Piper’s challenge of York’s second denial—before an appeals officer. The hearing officer granted the stipulation.

Following two days of hearings and written closing statements, the appeals officer was tasked with determining two issues. First, whether the hearing officer’s decision finding York responsible for Piper’s workers’ compensation coverage from his first injury was correct. Second, whether Piper’s seizure was an intervening act precluding York from responsibility for workers’ compensation coverage for Piper’s second injury.

The appeals officer found York liable for workers’ compensation coverage for both of Piper’s injuries. As to the first issue, the appeals officer found York liable because it found that Piper was an employee of Washworks. Further, the appeals officer found that York’s reliance on NRS 616B.028 was without merit. As to the second issue, the appeals officer again agreed with NDOC, finding that the first injury was the substantial contributing cause of Piper’s second injury.

York then petitioned for judicial review of the appeals officer’s decision. On review, the district court focused entirely on York’s NRS 616B.028 argument. The district court posited that the critical question was what did the legislature intend when it used the term “work program” in NRS 616B.028(1). After a plain-language reading, the district court found that “work program” in NRS 616B.028(1) included the work release program. Thus, the district court concluded that York was not responsible for workers’ compensation coverage because NDOC was responsible under NRS 616B.028(1). Accordingly, the district court set aside the appeals officer’s decision. NDOC appealed the district court’s order.

NDOC argued that the district court erred when it found that “work program” in NRS 616B.028(1) encompassed the work release program in which Piper participated. In response, York argued that the district court correctly determined that the plain and ordinary meaning of NRS 616B .028 showed that the work release program fell within the ambit of work program.

The Nevada Supreme Court concluded that “work program” in NRS 616B.028(1) is subject to more than one reasonable interpretation and is thus ambiguous. “Work program” could be broadly construed to include the work release program, as the district court concluded. It could also be narrowly construed to refer to a specific type of program under the auspices of the prison industries.

The original version of NRS 616B.028(1) was codified in 1989. It read, “while engaged in work in a prison industry program,” as opposed to today’s version, which reads “while engaged in work in a prison industry or work program.” The “or work” addition was implemented by the Legislature in 1995.  The legislative history reveals that “or work” was added to curtail a specific situation in which inmates who were participating in prison work camps with the Division of Forestry were suing the Division of Forestry for failure to train and inadequate equipment.

The Court reasoned that while NRS 616B.028’s legislative history might not precisely state the extent of what “work program” was meant to encompass, it was clear that it did not contemplate the work release program under consideration here. The work release program is codified in NRS Chapter 213. Prison industries and programs concerning forestry are codified in NRS Chapter 209. There is no evidence indicating that the Legislature intended to expand NRS 616B.028(1) in 1995 to include the work release program, which was already enacted at the time, by adding “or work.”

Therefore, the Court concluded that “or work,” which was added to the statute in order to resolve issues surrounding inmates working for the Division of Forestry, merely clarified that NRS 616B.028(1) refers to prison industry programs codified in NRS Chapter 209, whether they take place inside the prison walls, e.g., producing license plates, or outside the prison walls, e.g., outdoor day-labor projects.

Accordingly, the Court reversed the judgment of the district court and reinstated the decision of the appeals officer, which held York liable for Piper’s workers’ compensation coverage for both injuries.

Are inmate telephone call logs public records?

Posted on by Jeff Jaeger

LVMPD v. Blackjack Bonding (Nev. Supreme Ct. – Mar. 5, 2015)

In 2012, Blackjack Bail Bonds made a public records request to the Las Vegas Metropolitan Police Department (LVMPD), requesting inmate call logs from the Clark County Detention Center (CCDC).

Blackjack’s specifically requested, “a call log that details the description of the phone used. . . , the call start time, dialed number, complete code, call type, talk seconds, billed time, cost, inmate id, and last name.” Additionally, Blackjack asked for “a list of all phones used by inmates and the phone description, including whether the phone is used to place . . . free calls, collect calls, or both.”  Blackjack subsequently narrowed the scope of the requested information to calls to “all telephone numbers listed on the various bail bond agent jail lists posted in CCDC in 2011 and 2012” and conveyed that it understood “that the inmate names and identification numbers may need to be redacted.”

LVMPD denied Blackjack’s request, claiming that it did not possess the records.  Blackjack then petitioned the district court for a writ of mandamus to compel LVMPD to provide the requested records. The district court granted in part Blackjack’s request for mandamus relief, stating that (1) the requested records were public records that LVMPD had a duty to produce, (2) the inmates’ names and identification numbers must be redacted before production, and (3) Blackjack would pay the costs associated with the production.

On appeal, LVMPD argued that the requested records are not public records subject to disclosure because they (1) do not concern an issue of public interest, (2) involve communications between private entities, and (3) are not in LVMPD’s legal custody or control.  LVMPD also argued that it need not produce the requested records because Public Employees’ Retirement System v. Reno Newspapers, Inc. (PERS), 129 Nev. , 313 P.3d 221 (2013), prevents it from having to create a new document to satisfy a public records request.  Alternatively, LVMPD argued that if the requested records are public records, then a balancing-of- competing-interests test weighs in favor of nondisclosure because of the inmates’ privacy interests and the burdens associated with production.

The Nevada Supreme Court held that the information that Blackjack requested is a public record because it relates to the provision of a public service.  The Court also found that substantial evidence indicated that LVMPD has legal control over the requested information.

Further, the Court indicated that the requested public records are readily accessible and PERS does not prevent their disclosure. The Court noted that LVMPD failed to demonstrate that the requested disclosure was financially burdensome. Therefore, the balancing-of-competing-interests test does not preclude its duty to produce the requested information.