Middleton v. Warden, Nevada State Prison
Middleton v. Warden, Nevada State Prison
Opinion of the Court
OPINION
This is an appeal from a district court order denying a post-conviction petition for a writ of habeas corpus. For the reasons
FACTS
Appellant David Middleton was convicted, pursuant to a jury verdict, of two counts of first-degree murder, in addition to other crimes, for the deaths of Katherine Powell and Thelma Davila and was sentenced to death. This court affirmed his conviction and death sentences on direct appeal.
Middleton originally filed a post-conviction habeas corpus petition in the district court in May 1999. About three months later, the district court appointed Washoe County Public Defenders Mary Lou Wilson and John Calvert to represent him.
At the outset of a two-day evidentiary hearing in June 2002, the district court summarily dismissed most of the claims raised in the petition. In November 2002 the district court issued a preliminary order denying Middleton relief on the remaining claims and in January 2003 issued a final order denying Middleton all relief. Lindsay then took on the sole representation of Middleton on appeal to this court.
After six orders from this court directing Lindsay to file an overdue opening brief, he finally submitted an 88-page opening brief on December 23, 2003. We then issued an order on Jan
In Haberstroh, the briefs did not contain a single citation to any page in 22 volumes of the 52-volume appendix submitted in that case. Thus, a large portion of the lengthy appendix in Haberstroh was never cited in the briefs and was wholly unnecessary to this court’s understanding or resolution of the appeal.
On February 10, 2004, Lindsay submitted an opening brief of exactly 80 pages, which was filed the next day. This court later discovered that the “amended” opening brief was simply the original submitted brief with the final eight pages excised.
DISCUSSION
“This court places the highest priority on diligence in the discharge of professional responsibility in capital cases.”
The highest standards of competence and diligence are expected of capital defense counsel in all stages of the criminal proceedings.
Lindsay has repeatedly violated this court’s orders and procedural deadlines. And despite these violations and the generous amount of time afforded Lindsay within which to complete and file his opening brief and appendix, the work product he ultimately submitted was wholly substandard and unacceptable.
The rules governing the proper format for briefs and appendices filed before this court are generally set forth in NRAP 28 through NRAP 32.
The opening brief submitted by Lindsay was disorganized and often incoherent. Throughout the brief were multiple pages of single-spaced citation to case law with little or no factual analysis or support.
Most notable, however, was Lindsay’s response to this court’s January 21, 2004, order. Despite this court’s explicit directives, Lindsay maintained his incorrect reading of Haberstroh and failed to include a complete and relevant statement of facts in his open
The 11-volume appendix filed by Lindsay was also inadequate. Lindsay failed to include numerous documents and portions of the district court proceedings that appear essential to addressing the claims he raised.
These multiple NRAP violations evince a clear disregard by Lindsay for this court, the rules governing the practice of attorneys before it, and most important, the obligations incumbent upon him as counsel for a client facing a death sentence. If Lindsay was physically or mentally unable to diligently submit a competent work product, then it was his obligation to withdraw as Middleton’s counsel.
SCR 250(2)(d) provides that counsel appointed to represent a capital defendant in a post-conviction appeal must be “capable and competent to represent the appellant.’ ’ Lindsay’s performance in this appeal falls far short of this requirement, and we are therefore compelled to sua sponte remove him as Middleton’s post-conviction appellate counsel. We further prohibit Lindsay from practicing before this court in any future cases without this court’s express prior authorization,
Middleton must be afforded his statutory right to litigate his post-conviction claims with the assistance of competent and diligent counsel. Therefore, we remove Lindsay as counsel, vacate the district court order denying Middleton’s habeas corpus petition, and remand. We instruct the district court to appoint new post-conviction counsel to represent Middleton. New counsel shall review the prior petitions filed below and revise the pleadings as he or she sees fit in a supplementary petition. The district court shall take appropriate, reasonable steps to expedite the proceedings.
See Middleton v. State, 114 Nev. 1089, 968 P.2d 296 (1998); see also Sheriff v. Middleton, 112 Nev. 956, 921 P.2d 282 (1996).
See NRS 34.820(1) (requiring the appointment of counsel for a capital defendant’s first post-conviction habeas corpus petition).
Because the Washoe County Public Defender represented Middleton in his direct appeal and because post-conviction claims respecting that representation may again be presented below, the Washoe County Public Defender should not be appointed as Middleton’s new post-conviction counsel.
See Hernandez v. State, 117 Nev. 463, 468, 24 P.3d 767, 770 (2001) (providing that an 80-page limit provides a capital appellant with an “ample and fair opportunity to obtain an adjudication on the merits”); cf. NRAP 28(g) (providing that the length of appellate briefs shall not exceed 30 pages without this court’s permission).
119 Nev. 173, 69 P.3d 676 (2003).
SCR 250(1).
See Gardner v. Florida, 430 U.S. 349, 357 (1977) (plurality opinion) (recognizing that death is a different kind of punishment from any other).
See Young v. District Court, 107 Nev. 642, 644, 818 P.2d 844, 845 (1991) (recognizing “the necessary latitude defense counsel must have in representing criminal defendants, especially in capital cases”).
See SCR 250(1).
See SCR 250; see also SCR 151 (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”); SCR 153 (“A lawyer shall act with reasonable diligence and promptness in representing a client.”).
See generally Young, 107 Nev. at 646-47, 818 P.2d at 846-47; SCR 39.
See SCR 250(7)(c).
See NRAP 32(a) (“Except for quotations and footnotes, the lines [of a brief] shall be double-spaced.”).
See NRAP 28(a)(3) (providing that a brief must contain “a statement of the facts relevant to the issues presented for review”); see also Collins v. Murphy, 113 Nev. 1380, 1385, 951 P.2d 598, 601 (1997).
See NRAP 28(e) (“Every assertion in briefs regarding matters in the record shall be supported by a reference to the page of the transcript or appendix where the matter relied on is to be found.”).
See NRAP 30(b)(3) (providing that an appellant’s appendix must include “portions of the record essential to determination of issues raised” on appeal); see also NRAP 30(b)(2).
See SCR 166(1)(b).
See SCR 99; see also NRAP 28A. Lindsay may continue as counsel for the appellants in two cases presently pending before this court: White v. State, Docket No. 43223, and Fiel v. State, Docket No. 43709.
See SCR 104.
Reference
- Full Case Name
- DAVID STEPHEN MIDDLETON v. WARDEN, NEVADA STATE PRISON, JOHN IGNACIO
- Cited By
- 2 cases
- Status
- Published