IN THE SUPREME COURT OF THE STATE OF NEVADA
DONALD EDWARD MCCALLISTER, No. 80402
Appellant,
vs.
THE STATE OF NEVADA,
FILE
Respondent. DEC 1 6 2020
A. BROWN
UPREME COURT
DE CLERK
ORDER OF AFFIRMANCE
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; Ronald J . Israel, Judge. Appellant Donald Edward
McCallister argues that the district court erred in denying his petition as
procedurally barred. We affirm.
McCallister's postconviction habeas petition was untimely
because it was filed five years after remittitur issued on direct appeal on
February 24, 2014. See NRS 34.726(1); McCallister v. State (McCallister I),
Docket No. 60166 (Order of Affirmance, January 28, 2014). McCallister's
petition was also successive because he had previously filed a postconviction
habeas petition and he asserted claims that had been raised in the previous
petition. See NRS 34.810(2); McCallister v. State (McCallister 11), Docket
No. 68445 (Order Affirming in Part, Reversing in Part and Remanding,
February 17, 2017). Thus, McCallister's petition was procedurally barred
absent a demonstration of good cause and actual prejudice. See NRS
34.726(1); NRS 34.810(3). Good cause requires showing "an impediment
external to the defense prevented [McCallister] from complying with the
state procedural default rules," such as where the factual or legal basis for
a claim was not reasonably available to be raised in a timely petition.
Hathaway u. State, 119 Nev. 248, 252,
71 P.3d 503, 506 (2003).
McCallister first argues that trial counsel should have
investigated two potential witnesses, Ms. Edwards and Ms. Johnson. Part
of this ineffective-assistance claim—the failure to investigate Ms.
Edwards—was raised in McCallister's first postconviction habeas petition.
This court affirrned the district court's decision rejecting the claim in that
petition. McCallister II, Docket No. 68445. Relitigation of that part of the
ineffective-assistance claim therefore is barred by the law of the case, which
a cannot be avoided by a more detailed and precisely focused argument
subsequently made after reflection upon the previous proceedings." Hall v.
State, 91 Nev. 314, 315-16,
535 P.2d 797, 798-99 (1975). McCallister has
not demonstrated good cause for relitigating the claim in an untimely
petition. As to the new aspect of this ineffective-assistance claim (counsel's
failure to investigate Ms. Johnson), McCallister asserts that trial counsel
knew of Ms. Johnson at the time of trial, which means this claim could have
been raised in his first, timely postconviction habeas petition. McCallister
has not shown good cause for his failure to do so. The district court therefore
correctly applied the mandatory procedural bars. See State v. Eighth
Judicial Dist. Court (Riker),
121 Nev. 225, 231,
112 P.3d 1070, 1074 (2005).
McCallister next argues that trial counsel should have
challenged his charges for lewdness with a child as barred by the statute of
limitations. He argues that he has good cause to raise this issue again in
an untimely petition because the district court did not properly resolve it on
'The fact that current counsel recently obtained affidavits from these
witnesses does not mean that the factual or legal basis for the claims was
not reasonably available during the first postconviction proceeding.
2
remand in the first postconviction proceeding. In the prior postconviction
appeal involving McCallister's first postconviction habeas petition, this
court rernanded for the district court to conduct an evidentiary hearing
limited to whether trial counsel's omission in this regard constituted
ineffective assistance. On remand, the State moved to dismiss the lewdness
counts. McCallister argued that the district court had to hold an
evidentiary hearing, and he filed a motion for a new trial or an evidentiary
hearing, which the district court denied.2 The district court subsequently
entered an amended judgment of conviction, removing the lewdness
counts.3 The district court apparently did not enter a separate order
formally denying the ineffective-assistance claim in the first petition. Even
if that omission by the district court provides good cause for McCallister to
relitigate this ineffective-assistance claim, McCallister does not show actual
prejudice. McCanister no longer stands convicted of or under sentence of
imprisonment for the lewdness charges. And contrary to McCallister's
suggestions, even if the district court had held an evidentiary hearing on
remand in the first postconviction proceeding, that hearing would have been
limited to the single ineffective-assistance claim related to the statute of
limitations for the lewdness charges. That was the only claim included in
this court's remand, as this court held that McCallister's other claims lacked
2This court dismissed in part and affirmed in part the district court's
decision. McCallister v. State, Docket No. 73261 (Order Dismissing Appeal
in Part and Affirming in Part and Directing Entry of an Amended Judgment
of Conviction, June 15, 2018).
3This court dismissed McCallister's appeal from the amended
judgment of conviction because he was not aggrieved by the amendment.
McCallister v. State, Docket No. 76869 (Order Dismissing Appeal, March 8,
2019).
3
merit. McCallister II, Docket No. 68445. The remand therefore did not open
the door for McCallister to relitigate any of the claims that had been rejected
or allow him to present or the district court to consider new claims. See
LoBue v. State ex rel. Dep't of Highways, 92 Nev. 529, 532,
554 P.2d 258,
260 (1976) (concluding that the district court erred when it considered
issues beyond the scope of a limited remand). Insofar as McCallister asserts
that the outcome at trial might have been different if the lewdness charges
had been dismissed pretrial based on the statute of limitations, we disagree.
The State presented overwhelming evidence of the sexual assaults. And,
the conduct underlying the lewdness charges would have been admissible
regardless of whether McCallister was charged with lewdness because it
occurred in the "same transaction" as the sexual assaults and was therefore
relevant to a full and accurate account of the sexual assaults. See NRS
48.035(3); Bellon v. State,
121 Nev. 436, 444,
117 P.3d 176, 181 (2005)
(discussing res gestae); Allan v. State,
92 Nev. 318, 320,
549 P.2d 1402, 1403
(1976) (holding that evidence constituting lewdness was admissible under
res gestae where the acts occurred in the immediate context of the sex
crimes charged as part of the "same transaction"). Because McCallister has
not shown actual prejudice in this regard or any other, the district court did
not err in denying the claim as procedurally barred.
McCallister next argues that trial counsel should have raised a
statute-of-limitations challenge to the sexual assault charges. He argues
that the victim never filed a written police report within the meaning of
NRS 171.083(1) to remove the limitations period. The district court rejected
the same claim raised in the first postconviction petition, and this court
affirmed that decision on appeal. McCallister II, Docket No. 68445. The
doctrine of the law of the case bars relitigation. We decline McCallister's
4
invitation to reconsider our prior decision, as it was not clearly erroneous
and the record repels his contention that the victim did not adequately
report the crimes in light of NRS 171.083(1). See Hsu v. Cty. of Clark, 123
Nev. 625, 630,
173 P.3d 724, 729 (2007) (recognizing exceptions to the
doctrine of the law of the case that have been adopted by federal courts).
Thus, there was no good cause to litigate the claim again, see NRS 34.810(2),
(3), and the district court did not err in denying this claim.
McCallister next argues that the State committed prosecutorial
misconduct in charging him with lewdness with a child under 14 years of
age because the State knew or should have known the statute of limitations
barred those counts. This claim was reasonably available to be raised on
direct appeal and is thus procedurally barred. See NRS 34.810(1)(b)(2).
McCallister has not shown good cause or actual prejudice, particularly as
the lewdness charges have been dismissed and he no longer stands
convicted of those charges. The district court therefore did not err in
denying this claim.
McCallister next argues that the State committed prosecutorial
misconduct during closing argument by implying that he was a repeat
offender. This claim was reasonably available to be raised on direct appeal
and is thus procedurally barred, see NRS 34.810(1)(b)(2), and McCallister
did not proffer any argument for good cause as to this claim. The district
court therefore did not err in denying this claim.
Lastly, McCallister argues that the State offered improper
vouching or bolstering testimony by five witnesses. This court considered
and rejected McCallister's challenge to these witnesses testimony on direct
appeal, McCallister I, Docket No. 60166, and the law of the case thus bars
relitigation. Because McCallister did not demonstrate good cause to
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relitigate this claim, the district court did not err in denying this claim as
procedurally barred.
Having considered McCallister's contentions and concluded
that they do not warrant relief, we
ORDER the judgment of the district court AFFIRMED.
A•rt_cbc.i_JO , J.
Stiglich
Silver
cc: Hon. Ronald J. Israel, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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