Rippo v. State , 2016 NV 11 ( 2016 )

132 Nev., Advance Opinion 1 1
IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL DAMON RIPPO, No. 53626
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. FEB 2 5 2016
BY
Appeal from the denial of a postconviction petition fdr a writ of
habeas corpus in a death penalty case. Eighth Judicial District Court,
Clark County; David Wall, Judge.
Affirmed.
Rene L. Valladares, Federal Public Defender, and David Anthony and
Michael Pescetta, Assistant Public Defenders, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven S. Owens, Chief
Deputy District Attorney, Clark County,
for Respondent.'
'After this appeal was briefed, argued, and submitted for decision,
attorney Steven Wolfson was appointed Clark County District Attorney.
Mr. Wolfson was one of the attorneys who represented appellant Michael
Damon Rippo at trial. He has not appeared as the district attorney in this
appeal.
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BEFORE PARRAGUIRRE, C.J., HARDESTY, DOUGLAS, CHERRY,
SAITTA, GIBBONS and PICKERING, JJ.
OPINION
PER CURIAM:
The bodies of Denise Lizzi and Lauri Jacobson were found in
Jacobson's apartment on February 20, 1992. Both women had been
strangled. A jury found appellant Michael Damon Rippo guilty of two
counts of first-degree murder and related felonies in 1996 and sentenced
him to death. His convictions and sentences were affirmed on appeal,
Rippo v. State, 113 Nev. 1239, 946 P.2d 1017 (1997), and he was denied
relief in a postconviction habeas proceeding, Rippo v. State, 122 Nev. 1086,
146 P.3d 279 (2006). Rippo then filed a second postconviction petition for
a writ of habeas corpus in state court. The petition was both untimely and
successive. The district court determined that Rippo failed to make the
showing required to excuse those procedural bars and denied the petition.
In this opinion, we focus on Rippo's claim that the ineffective
assistance of the attorney who represented him in the first postconviction
proceeding excused the procedural bars to claims raised in his second
petition. This court has held that where a petitioner is entitled to the
appointment of postconviction counsel pursuant to a statutory mandate,
the ineffective assistance of that counsel may provide good cause for filing
a second petition. Crump v. Warden, 113 Nev. 293, 934 P.2d 247 (1997);
McKague v. Warden, 112 Nev. 159, 912 P.2d 255 (1996). But the
ineffective-assistance claim must not itself be procedurally barred,
Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003), such as
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being raised in an untimely fashion, see NRS 34.726; State v. Eighth
Judicial Dist. Court (Riker), 121 Nev. 225, 235, 112 P.3d 1070, 1077
(2005). We take this opportunity to provide guidance on two issues related
to whether an ineffective-assistance-of-postconviction-counsel claim,
asserted as good cause to excuse other defaulted claims, has been raised in
a timely fashion: (1) when does a postconviction-counsel claim reasonably
become available, and (2) what is a reasonable time thereafter in which
the claim must be asserted. As to the first question, we hold that the
factual basis for a claim of ineffective assistance of postconviction counsel
is not reasonably available until the conclusion of the postconviction
proceedings in which the ineffective assistance allegedly occurred. As to
the second question, we hold that a petition asserting ineffective
assistance of postconviction counsel to excuse the procedural default of
other claims has been filed within a reasonable time after the
postconviction-counsel claim became available so long as it is filed within
one year after entry of the district court's order disposing of the prior
petition or, if a timely appeal was taken from the district court's order,
within one year after this court issues its remittitur. We also take this
opportunity to explain the test for evaluating claims of ineffective
assistance of postconviction counsel, adopting the two-prong test set forth
in Strickland v. Washington, 466 U.S. 668 (1984).
Applying these holdings, we conclude that although Rippo
filed his petition within a reasonable time after the postconviction-counsel
claims became available, those claims lack merit and therefore he has not
demonstrated good cause for an untimely petition or good cause and
prejudice for a second petition. We also reject his other allegations of good
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cause and prejudice. The district court properly denied the petition as
procedurally barred. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
Rippo and his girlfriend, Diana Hunt, were charged in the
robbery and murder of Lizzi and Jacobson. 2 Hunt agreed to plead guilty to
robbery and testify against Rippo. According to Hunt's testimony, Rippo
hatched a plan to rob Lizzi that included Hunt subduing Jacobson by
hitting her with a beer bottle. In carrying out the plan, Rippo used a stun
gun to subdue both women, bound and gagged them, and strangled them; 3
wiped down the apartment with a rag and removed Lizzi's boots and pants
because he had bled on her pants; and took Lizzi's car and credit cards,
later using the credit cards to make several purchases. Approximately one
week later, Rippo confronted Hunt, who suggested that they turn
themselves in to the police. Rippo refused, telling Hunt that he had
returned to Jacobson's apartment, cut the women's throats, and jumped
up and down on them. Other witnesses provided testimony linking Rippo
to property taken from the women. And several witnesses testified to
incriminating statements made by Rippo. The medical examiner testified
that Lizzi's injuries were consistent with manual and ligature
°The facts are set forth in greater detail in our opinion on direct
appeal from the judgment of conviction. Rippo, 113 Nev. at 1244-47, 946
P.2d at 1021-23.
3 Hunttestified that when she accused Rippo of choking the women,
he told her that he had temporarily cut off their air supply and that he
and Hunt needed to leave before the women regained consciousness.
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strangulation and that Jacobson died from asphyxiation due to manual
strangulation. But the medical examiner also testified that neither body
revealed stun gun marks. A jury found Rippo guilty of two counts of first-
degree murder and one count each of robbery and unauthorized use of a
credit card.
At the penalty hearing, the State alleged six aggravating
circumstances: that the murders were committed (1) by a person who was
under a sentence of imprisonment; (2) by a person who was previously
convicted of a felony involving the use or threat of violence to the person of
another; (3) during the commission of a burglary; (4) during the
commission of a kidnapping; (5) during the commission of a robbery; and
(6) that the murders involved torture, depravity of mind, or the mutilation
of the victims In support of the first two aggravating circumstances, the
State presented evidence that Rippo had a prior conviction for sexual
assault and was on parole at the time of the murders. The remaining
aggravating circumstances were supported by the guilt-phase evidence. In
addition to the evidence supporting the aggravating circumstances, the
State presented evidence that Rippo had a prior conviction for burglary
and had confessed to committing numerous burglaries. The State also
presented evidence about Rippo's conduct while in prison, that on one
occasion he had been found with weapons in his cell, and on another
occasion he threatened to kill a female prison guard. Finally, the State
called five members of Jacobson's and Lizzi's families who provided victim-
impact testimony.
The defense presented three witnesses in mitigation: (1) a
prison worker testified that Rippo had not presented any problems while
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incarcerated; (2) Hippo's stepfather, Robert Duncan, testified regarding
Hippo's friendly behavior when living with him while on parole and asked
the jury to spare Hippo's life; and (3) Hippo's sister testified that their
former stepfather, James Anzini, emotionally abused Hippo and had stolen
his paychecks and gambled them away, and she urged the jury to show
mercy. The defense also presented a letter from Hippo's mother, who was
unable to testify in person because of medical issues. She described
Hippo's upbringing and personality as a child (inquisitive, tender, and
loving). She explained that Anzini made his living by gambling and that
as a result, the family environment was not stable. She further described
Hippo's relationship with Anzini in his teen years; the circumstances
leading to Rippo's juvenile adjudication and commitment; the impact on
the family environment and Hippo when Anzini was diagnosed with
terminal cancer, eventually leading up to the sexual assault committed by
Hippo in 1981; and Hippo's efforts to improve himself while incarcerated.
At the conclusion of the penalty hearing, Rippo made a statement in
allocution.
The jury found all six aggravating circumstances, concluded
that the mitigating circumstances did not outweigh the aggravating
circumstances, and imposed a sentence of death for each murder. This
court affirmed the convictions and sentences on direct appeal. Rippo, 113
Nev. at 1265, 946 P.2d at 1033. The remittitur issued on November 3,
1998.
Hippo filed a timely postconviction petition for a writ of habeas
corpus in the district court on December 4, 1998, which was supplemented
twice (on August 8, 2002, and February 10, 2004). As required by NHS
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34.820, Hippo was represented by court-appointed counsel in the
postconviction proceeding Following an evidentiary hearing, the district
court denied the petition. See Rippo, 122 Nev. at 1091, 146 P.3d at 282.
On appeal, this court struck three of the six aggravating circumstances
pursuant to McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004)—the
circumstances alleging that the murders occurred during the commission
of a burglary, a kidnapping, and a robbery—but affirmed the denial of
Hippo's petition after concluding in a 4-3 decision that the jury's
consideration of the invalid aggravating circumstances was harmless
beyond a reasonable doubt. Rippo, 122 Nev. at 1094, 1098, 146 P.3d at
284, 287. The remittitur issued on January 16, 2007.
Hippo filed a second postconviction petition for a writ of
habeas corpus on January 15, 2008, with the assistance of the Federal
Public Defender's Office. The 193-page petition asserted 22 grounds for
relief, some of which had been raised in prior proceedings and others that
were new. 4 The State moved to dismiss the petition as procedurally
barred, and Rippo sought leave to conduct discovery. After hearing
argument on the petition and motions, the district court granted the
State's motion to dismiss and denied Hippo's motion for discovery as moot.
This appeal followed.
4 The petition was accompanied by approximately 17 volumes of
exhibits.
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DISCUSSION
The petition at issue raised claims for relief based on trial
error, prosecutorial misconduct and failure to disclose evidence, ineffective
assistance of trial counsel, ineffective assistance of appellate counsel, and
ineffective assistance of postconviction counsel. Rippo acknowledged that
the petition was not filed within the time period provided by NRS
34.726(1) and that most of the grounds in the petition were either waived,
successive, or an abuse of the writ and therefore subject to various
procedural defaults under NRS 34.810. He provided several explanations
for his failure to file the petition within the time provided by MRS
34.726(1) and for failing to raise the new claims in prior proceedings or
raising the claims again. The district court dismissed the petition as
procedurally defaulted, specifically mentioning NRS 34.726 and NRS
34.810(2). In reviewing the district court's application of the procedural
default rules, we will give deference to its factual findings but "will review
the court's application of the law to those facts de novo." State v. Huebler,
128 Nev. 192, 197, 275 P.3d 91, 95 (2012).
Ineffective assistance of postconviction counsel as cause and prejudice to
excuse a procedural default
This opinion focuses on Rippo's allegations that counsel
appointed to represent him in his first postconviction proceeding provided
ineffective assistance (postconviction-counsel claim). We have recognized
a right to effective assistance of postconviction counsel only where the
appointment of postconviction counsel is statutorily mandated. See
Crump v. Warden, 113 Nev. 293, 303 & n.5, 934 P.2d 247, 253 & n.5
(1997); McKague v. Warden, 112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5
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(1996). Under Nevada law, the appointment of postconviction counsel is
statutorily mandated in one circumstance: where the "petitioner has been
sentenced to death and the petition is the first one challenging the validity
of the petitioner's conviction or sentence." NRS 34.820(1)(a). That is the
case here—Hippo has been sentenced to death and his prior petition was
the first one challenging the validity of his conviction and sentence. Hippo
therefore was entitled to effective assistance of that counsel.
Hippo's allegations regarding postconviction counsel arise in
two contexts. First, Hippo asserted a postconviction-counsel claim as a
free-standing claim for relief from his judgment of conviction and sentence
(claim 20(A), (B)). 5 Second, Hippo asserted that postconviction counsel's
ineffective assistance established "cause and prejudice" to excuse the
procedural default of the other claims in his petition. In both contexts, we
must address the allegations about postconviction counsel's performance
within the prism of the three procedural bars that are implicated by the
petition and the district court's decision: the second-or-successive-petition
°The free-standing claim raises another issue that has not been
adequately addressed by the parties and therefore is not addressed in this
opinion: whether a free-standing claim of ineffective assistance of
postconviction counsel is cognizable in a postconviction petition for a writ
of habeas corpus given that there is no constitutional right to
postconviction counsel. See NRS 34.724(1) ("Any person convicted of a
crime and under sentence of death or imprisonment who claims that the
conviction was obtained, or that the sentence was imposed, in violation of
the Constitution of the United States or the Constitution or laws of this
State . . . may. . . file a postconviction petition for a writ of habeas corpus
to obtain relief from the conviction or sentence . . . ." (emphasis added)).
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bar set forth in NRS 34.810(2), the waiver bar set forth in NRS
34.810(1)(b), and the time bar set forth in NRS 34.726(1). 6
Successive petitions and abuse of the writ
We start with the statutory provision that limits second or
successive habeas petitions that challenge a judgment of conviction or
sentence. Under NRS 34.810(2), such a petition must be dismissed in
either of two circumstances: (1) if "it fails to allege new or different
grounds for relief and. . the prior determination was on the merits" or
(2) "if new and different grounds are alleged" and the court finds that the
petitioner's failure "to assert those grounds in a prior petition constituted
an abuse of the writ." To avoid dismissal under this provision, the
6 Rippo's petition was subject to a fourth procedural bar, laches
under NRS 34.800, because it was filed more than five years after our
decision on direct appeal from the judgment of conviction. See NRS
34.800(2). Although the State pleaded laches below as required by MRS
34.800(2), we decline to address it on appeal for two reasons. First, the
district court did not mention laches in its order, and the State has not
asserted it as an alternative basis on which to affirm the district court's
decision aside from a summary statement on the final page of its brief that
claim 21 is "subject to laches." Second, we need not consider whether the
petition is procedurally defaulted under NRS 34.800 because it is
procedurally defaulted under other provisions. See Riker, 121 Nev. at 239,
112 P.3d at 1079 ("A court need not discuss or decide every potential basis
for its decision as long as one ground sufficient for the decision
exists. . . . Thus, our conclusion in a case that one procedural bar precludes
relief carries no implication regarding the potential applicability of other
procedural bars." (footnote omitted)); see also Pellegrini v. State, 117 Nev.
860, 867 n.5, 34 P.3d 519, 524 n.5 (2001) (declining to address laches
where claims were procedurally barred under other provisions and district
court's order did not rely on laches).
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petitioner must plead and prove specific facts that demonstrate both
"[g]ood cause for the petitioner's failure to present the claim or for
presenting the claim again" and "[a]ctual prejudice to the petitioner."
NRS 34.810(3). Here, the prior petition was resolved on the merits and all
of the grounds in the second petition had been raised in the prior petition
or were new and different grounds for relief. The second petition therefore
was subject to dismissal under NRS 34.810(2) absent a showing of cause
and prejudice under NRS 34.810(3).
Failure to raise claims in prior proceedings
A petition also may be subject to dismissal under NRS
34.810(1)(b) if it raises any grounds that could have been raised in a prior
proceeding (whether at trial, on appeal, or in a prior postconviction
proceeding). Like the procedural default for second and successive
petitions under NRS 34.810(2), this procedural default may be excused by
a showing of "cause for the failure to present the grounds and actual
prejudice," NRS 34.810(1)(b), and the petitioner has "the burden of
pleading and proving specific facts that demonstrate" cause and actual
prejudice, NRS 34.810(3). Most of the grounds raised in Rippo's petition
could have been raised in a prior proceeding, including those based on
alleged errors that occurred at trial (claims 1, 2, 6-14), which could have
been raised on direct appeal; ineffective assistance of trial and appellate
counsel (claims 3-8, 10-12, 14, 16-19), which could have been raised in the
prior postconviction habeas petition; errors on appellate review (claim 15),
which could have been raised in a petition for rehearing; and errors or
irregularities in the prior postconviction proceeding (claim 20(C)-(G)),
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which could have been raised in the prior postconviction appeal. Those
grounds therefore are subject to dismissal under NRS 34.810(1)(b)."
Procedural default of cause-and-prejudice claim
To demonstrate the cause required to excuse the procedural
default of claims under NRS 34.810(1)(b) and (2), the petitioner must show
that "an impediment external to the defense" prevented the petitioner
from presenting the claims previously or warrants presenting them again.
Clem v. State, 119 Nev. 615, 621, 81 P.3d 521, 525 (2003). In an effort to
make the required showing, Rippo relies primarily on allegations that his
first postconviction counsel provided ineffective assistance.
This court has addressed ineffective assistance of
postconviction counsel as cause to excuse a procedural default under NRS
34.810(1)(b) in Crump. In that case, we held that where a petitioner has
the statutory right to assistance of postconviction counsel, a meritorious
claim that postconviction counsel provided ineffective assistance may
establish cause under NRS 34.810(1)(b) for the failure to present claims
for relief in a prior postconviction petition for a writ of habeas corpus. 8
"The free-standing postconviction-counsel claim (claim 20(A), (B))
could not have been raised in a prior proceeding; that ground therefore is
not subject to NRS 34.810(1)(b) to the extent that it is cognizable, see
supra n.5. See Riker, 121 Nev. at 235, 112 P.3d at 1077.
8 We have held that good cause cannot be shown based on a
postconviction-counsel claim where there is no constitutional or statutory
right to counsel. McKague, 112 Nev. at 164-65, 912 P.2d at 258; see also
Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 869 (2014)
(holding that decision in Martinez v. Ryan, 566 U.S. , 132 S. Ct. 1309continued on next page . . .
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113 Nev. 293, 304-05, 934 P.2d 247, 254 (1997). But we have also
recognized that an ineffective-assistance-of-counsel claim cannot be
asserted as cause to excuse the procedural default of another claim for
relief if the ineffective-assistance claim is itself defaulted. Hathaway v.
State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003); accord Edwards v.
Carpenter, 529 U.S. 446, 452-54 (2000) (holding that ineffective-assistance
claim asserted in federal habeas petition as cause for procedural default of
another claim may itself be subject to procedural default that can be
excused only by satisfying cause-and-prejudice standard with respect to
ineffective-assistance claim). That is the case here: Rippo's ineffective-
assistance-of-postconviction-counsel claim is itself subject to procedural
default under NRS 34.726(1). 9 Riker, 121 Nev. at 235, 112 P.3d at 1077;
see also Pellegrini, 117 Nev. at 869-70, 34 P.3d at 526 (rejecting argument
that NRS 34.726 does not apply to second or successive petitions).
. . . continued
(2012), does not address state procedural default rules and refusing to
recognize ineffective assistance of postconviction counsel as good cause
where petitioner did not have statutory or constitutional right to
postconviction counsel).
9 Thisprocedural default was not addressed in Crump because
Crump filed his petition in 1989, before NRS 34.726 had been adopted.
See 1991 Nev. Stat., ch. 44, § 5, at 75-76 (adopting NRS 34.726); id. § 33,
at 92 (providing that amendments did not apply to postconviction
proceedings commenced before January 1, 1993).
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Availability of postconviction-counsel claim and time within
which it must be raised
Under NRS 34.726(1), a habeas petition challenging a
judgment of conviction or sentence must be filed within one year after
entry of the judgment of conviction, or if a timely appeal is taken from the
judgment of conviction, within one year after this court issues its
remittitur on direct appeal from the judgment of conviction. Dickerson v.
State, 114 Nev. 1084, 1087-88, 967 P.2d 1132, 1133-34 (1998) (construing
NRS 34.726(1) to allow one year from remittitur on direct appeal only if
direct appeal was timely). Hippo's petition was not filed within that time
period. To excuse the delay in filing the petition, Hippo had to
demonstrate good cause for the delay. NRS 34.726(1). A showing of good
cause for the delay has two components: (1) that the delay was not the
petitioner's fault and (2) that "dismissal of the petition as untimely will
unduly prejudice the petitioner." Id.The first component of the cause standard under NRS
34.726(1) requires a showing that "an impediment external to the defense"
prevented the petitioner from filing the petition within the time
constraints provided by the statute. Clem, 119 Nev. at 621, 81 P.3d at
525; Hathaway, 119 Nev. at 252, 71 P.3d at 506. "A qualifying
impediment might be shown where the factual or legal basis for a claim
was not reasonably available at the time of any default." Clem, 119 Nev.
at 621, 81 P.3d at 525; see also Hathaway, 119 Nev. at 252, 71 P.3d at 506.
Hippo argues that there was such an impediment. Specifically, he asserts
that the delay in filing the petition was due to ineffective assistance of
postconviction counsel and that his postconviction-counsel claim was not
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available at the time of the procedural default under NRS 34.726(1). We
agree.
The availability of a postconviction-counsel claim is related to
the showing that a petitioner must make to prove the claim. To make out
a claim that postconviction counsel provided ineffective assistance, a
petitioner must demonstrate that counsel's performance was deficient and
that the deficient performance resulted in prejudice. See discussion infra
pp. 20-24. Although a petitioner knows during the course of the
postconviction proceedings that postconviction counsel omitted claims or
presented claims in a certain way, he cannot state a claim of ineffective
assistance of postconviction counsel until he has suffered prejudice. The
basis for the claim thus depends on the conclusion of the postconviction
proceedings in which the ineffective assistance allegedly occurred. Paz v.
State, 852 P.2d 1355, 1358 (Idaho 1993) (Bistline, J., dissenting); cf.
K.J.B., Inc. v. Drakulich, 107 Nev. 367, 369-70, 811 P.2d 1305, 1306 (1991)
(explaining that statute of limitations for attorney malpractice action does
not begin to run until claimant sustains damages and "that damages for
attorney malpractice are premature and speculative until the conclusion of
the underlying lawsuit in which the professional negligence allegedly
occurred"). In this case, as with most capital cases, the postconviction
proceedings did not conclude within the time period provided in NRS
34.726(1). Therefore, the claim that postconviction counsel provided
ineffective assistance in litigating the prior petition was not reasonably
available to Rippo at the time of the procedural default under NRS
34.726(1).
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The fact that the claim was not reasonably available within
the one-year period does not end the inquiry because a petitioner does not
have an indefinite period of time to raise a postconviction-counsel claim.
As we have recognized, "[t]he necessity for a workable [criminal justice]
system dictates that there must exist a time when a criminal conviction is
final." Groesbeck v. Warden, 100 Nev. 259, 261, 679 P.2d 1268, 1269
(1984) (explaining consideration behind decision to restrict postconviction
petition for writ of habeas corpus before enactment of specific statutory
time limitations on such petitions). Consistent with that need for finality,
we have held that when a petition raises a claim that was not available at
the time of a procedural default under NRS 34.726(1), it must be filed
within "a reasonable time" after the basis for the claim becomes available.
Hathaway, 119 Nev. at 254-55, 71 P.3d at 507-08 (discussing delay in
filing petition alleging appeal-deprivation claim where petitioner believed
that attorney had filed appeal and did not learn of attorney's failure to file
appeal before procedural default under NRS 34.726(1)). To determine
whether Hippo's petition was filed within a reasonable time, we must
answer two questions: (1) when does a claim that postconviction counsel
provided ineffective assistance become available, and (2) what is a
reasonable time thereafter for filing a petition that raises the claim.
The answer to the first question is related to the basis for a
postconviction-counsel claim. We reasoned above that a necessary basis
for a claim of ineffective assistance of postconviction counsel depends on
the conclusion of the postconviction proceedings in which the ineffective
assistance allegedly occurred. Consistent with that determination, we
conclude that the postconviction-counsel claim becomes available at the
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conclusion of those proceedings. Although there is no mandatory appeal in
the postconviction context and it is not clear that there is a statutory right
to counsel to pursue an appeal from an order denying a postconviction
habeas petition even when there was such a right to counsel in the district
court, 1-0 we conclude that as a practical matter, if a timely appeal is taken,
the postconviction proceeding concludes when this court issues its
remittitur on appeal. Otherwise, there is the potential for piecemeal
litigation that would further clog the criminal justice system. If no timely
appeal is filed, the postconviction proceeding concludes when the district
court enters its judgment resolving the petition. In this case, the prior
postconviction proceeding concluded when this court issued its remittitur
in the postconviction appeal on January 16, 2007. Rippo's postconviction-
counsel claim therefore became available on that date.
The next question is whether Rippo's petition was filed within
a reasonable time after the postconviction-counsel claim became available.
Rippo asserts that a reasonable time for filing a petition that raises a
wThe Supreme Court has indicated that there is no constitutional
right to assistance of counsel on appeal from an "initial-review collateral
proceeding." Coleman v. Thompson, 501 U.S. 722, 755 (1991); see also
Martinez v. Ryan, 566 U.S. „ 132 S. Ct. 1309, 1320 (2012) ("The
holding in this case does not concern attorney errors in other kinds of
proceedings, including appeals from initial-review collateral proceedings,
second or successive collateral proceedings, and petitions for discretionary
review in a State's appellate courts."). And NRS 34.820(1)(a) does not
clearly indicate whether the mandatory appointment of counsel pursuant
to that statute carries over to an appeal.
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postconviction-counsel claim would be within one year after the claim
becomes available, similar to the time limit set forth in NRS 34.726(1).
The State, on the other hand, suggests that a delay of even less than one
year may be unreasonable depending on the circumstances, thus
proposing more of a claim-by-claim approach. Both positions hold some
appeal. Rippo's position provides a bright-line rule while providing
sufficient time to investigate additional claims that may not appear from
the record. The State's position acknowledges that most omitted claims
will appear in the record and that a year is not required for all claims that
may have been unavailable at the time of a default under NRS 34.726(1).
We are reluctant, however, to take the State's approach because it would
only add to the already endless litigation over the application of the
procedural default rules, rules that are supposed to discourage the
perpetual filing of habeas petitions, see Pellegrini, 117 Nev. at 875, 34 P.3d
at 529. One needs only look to the California experience in applying its
requirement that a habeas petition be filed without "substantial delay" to
understand our reticence to use an imprecise standard in this arena. See
generally In re Gallego, 959 P.2d 290 (Cal. 1998); In re Robbins, 959 P.2d
311 (Cal. 1998); In re Clark, 855 P.2d 729 (Cal. 1993); see also Carey v.
Saffold, 536 U.S. 214, 223 (2002) (discussing California's timeliness
standard in context of applying federal tolling provision and observing
that he fact that California's timeliness standard is general rather than
precise may make it more difficult for federal courts to determine just
when a review application . . . comes too late").
To provide clearer boundaries, we look to NRS 34.726 for
guidance. With NRS 34.726(1), the Legislature has determined that one
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year provides sufficient time within which to raise claims that trial and
appellate counsel provided ineffective assistance. The same can be said
with respect to raising a postconviction-counsel claim. Using a similar
one-year boundary for what is a reasonable time within which to file a
petition raising a postconviction-counsel claim that was not factually or
legally available at the time of a procedural default under NRS 34.726 also
provides some fairness and predictability. CI Pellegrini, 117 Nev. at 874-
75, 34 P.3d at 529 (concluding that for purposes of determining timeliness
of successive petitions filed by petitioners whose convictions were final
before effective date of NRS 34.726, "it is both reasonable and fair to allow
petitioners one year from the effective date of the amendment to file any
successive habeas petitions"). We therefore conclude that a claim of
ineffective assistance of postconviction counsel has been raised within a
reasonable time after it became available so long as the postconviction
petition is filed within one year after entry of the district court's order
disposing of the prior postconviction petition or, if a timely appeal was
taken from the district court's order, within one year after this court
issues its remittitur. Because Rippo filed his petition within one year
after we issued our remittitur on appeal from the order denying the prior
petition, the second petition was filed within a reasonable time after the
postconviction-counsel claim became available. Rippo thus met the first
component of the good-cause showing required under NRS 34.726(1).
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Undue prejudice to excuse untimely petition based on
ineffective assistance of postconviction counsel and standard
for evaluating postconviction counsel's effectiveness
The second component of the good-cause showing under NRS
34.726(1) requires the petitioner to demonstrate "What dismissal of the
petition as untimely will unduly prejudice [him]." A showing of undue
prejudice necessarily implicates the merits of the postconviction-counsel
claim, otherwise this requirement would add nothing to the first
component of the good-cause showing required under NRS 34.726(1) and
the petitioner would be able to overcome the procedural default under that
statute without establishing the merits of the postconviction-counsel
claim.
To determine whether the postconviction-counsel claim has
any merit, we must address the standard for evaluating postconviction
counsel's performance. We have held that the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984), applies to evaluate the
effectiveness of trial counsel, Warden v. Lyons, 100 Nev. 430, 432-33, 683
P.2d 504, 505 (1984), and appellate counsel, Kirksey v. State, 112 Nev. 980,
998, 923 P.2d 1102, 1113 (1996). Similarly, we have indicated that
Strickland should be used to evaluate the effectiveness of postconviction
counsel where there is a statutory right to that counsel Crump v.
Warden, 113 Nev. 293, 304, 934 P.2d 247, 254 (1997) ("[We must remand
this matter to the district court for an evidentiary hearing to determine
whether [first postconviction counsel's] omissions constitute ineffective
assistance of counsel as set forth in Strickland."). But unlike the rights to
effective assistance of trial and appellate counsel, which are guaranteed by
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the Sixth and Fourteenth Amendments to the United States Constitution,
Evitts v. Lucey, 469 U.S. 387, 392, 396-97 (1985), there is no recognized
constitutional right to effective assistance of postconviction counsel,"
McKague v. Warden, 112 Nev. 159, 163, 912 P.2d 255, 257-58 (1996)
(concluding that neither the United States nor Nevada Constitution
provides for a right to counsel in postconviction proceedings). Given that
distinction, we are not obligated to apply Strickland to evaluate
postconviction counsel's effectiveness. See People v. Perkins, 856 N.E.2d
1178, 1183 (Ill. App. Ct. 2006) (observing that with statutory right to
postconviction counsel, "Strickland is not automatically applicable to
claims of less-than-reasonable assistance of postconviction counsel").
However, because Strickland provides a well-established standard that
has been developed through caselaw and can be easily applied in the
postconviction-counsel context, see Means v. State, 120 Nev. 1001, 1011,
103 P.3d 25, 32 (2004) (describing Strickland as "a fair, workable and, as
it turns out, durable standard"), we take this opportunity to explicitly
adopt the Strickland standard to evaluate postconviction counsel's
"In the absence of a Supreme Court decision recognizing a
constitutional right, we reiterate that the limited right to effective
assistance of postconviction counsel addressed in this opinion arises out of
the statutory mandate to appoint counsel under NRS 34.820(1)(a), and we
disavow any prior decisions suggesting that the right has a constitutional
basis, see, e.g., Pellegrini, 117 Nev. at 887-88 n.125, 34 P.3d at 537 n.125
(describing McKague as "holding that there is no constitutional right to
effective assistance of counsel except where state law entitles one to the
appointment of counsel"); Crump, 113 Nev. at 304-05, 934 P.2d at 254.
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performance where there is a statutory right to effective assistance of that
counsel. 12
Strickland has two prongs. The petitioner must demonstrate
(1) that counsel's performance was deficient and (2) that counsel's
deficient performance prejudiced the defense. Strickland, 466 U.S. at 687.
Both showings must be made before counsel can be deemed to have
provided ineffective assistance, id. at 687, but a court need not address the
prongs in a particular order or even consider both prongs if the petitioner
makes an insufficient showing on one, id. at 697; see also McNelton v.
State, 115 Nev. 396, 403, 990 P.2d 1263, 1268 (1999). And when a
petitioner presents a claim of ineffective assistance of postconviction
counsel on the basis that postconviction counsel failed to prove the
ineffectiveness of his trial or appellate attorney, the petitioner must prove
the ineffectiveness of both attorneys. State v. Jim, 747 N.W.2d 410, 418
(Neb. 2008) (stating that layered claim of ineffective assistance requires
evaluation at each level of counsel); see also Clabourne v. Ryan, 745 F.3d
12 Not all states guarantee postconviction petitioners a statutory
right to the effective assistance of counsel, but in states that do, use of the
Strickland standard is not uncommon. See, e.g., In re Clark, 855 P.2d 729,
748-49 (Cal. 1993); Silva v. People, 156 P.3d 1164, 1168-69 (Colo. 2007);
Stovall v. State, 800 A.2d 31, 38 (Md. Ct. Spec. App. 2002); Johnson v.
State, 681 N.W.2d 769, 776-77 (N.D. 2004); Commonwealth v. Priovolos,
715 A.2d 420, 422 (Pa. 1998). The Supreme Court has also indicated that
Strickland applies when a state prisoner seeks federal habeas relief and
asserts the ineffective assistance of state habeas counsel as cause to
excuse the procedural default of a trial-counsel claim. Martinez, 566 U.S.
at , 132 S. Ct. at 1318.
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362, 377 (9th Cir. 2014) (observing that prejudice showing required for
ineffective assistance of postconviction counsel based on failure to raise
ineffective-assistance-of-trial-counsel claim "is necessarily connected to
the strength of the argument that trial counsel's assistance was
ineffective"), overruled on other grounds by McKinney v. Ryan, No,
09-99018, 2015 WL 9466506, at *1647 (9th Cir. 2015).
The showing required to satisfy the prejudice prong—a
reasonable probability that the result of the proceeding would have been
different—varies depending on the context, including the proceeding in
which the allegedly deficient performance occurred and the nature of the
deficient performance. See, e.g., Missouri v. Frye, 566 U.S. „ 132 S.
Ct. 1399, 1409-10 (2012) (prejudice arising from deficient performance
based on failure to communicate plea offer to defendant); Lat.ler v. Cooper,
566 U.S. „ 132 S. Ct. 1376, 1384-85 (2012) (prejudice arising from
deficient performance in advising defendant to reject favorable plea offer);
Hill v. Lockhart, 474 U.S. 52, 59 (1985) (prejudice arising from deficient
performance that led defendant to accept plea offer rather than proceed to
trial); Strickland, 466 U.S. at 694 (prejudice arising from deficient
performance of counsel during trial); Kirksey, 112 Nev. at 998, 923 P.2d at
1114 (prejudice arising from deficient performance on appeal from
judgment of conviction). In the context of postconviction counsel, we
conclude that the prejudice prong requires a showing that counsel's
deficient performance prevented the petitioner from establishing "that the
conviction was obtained, or that the sentence was imposed, in violation of
the Constitution of the United States or the Constitution or laws of this
State," NRS 34.724(1). As one state court has explained, the question is
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more than whether "the first post-conviction relief proceeding should have
gone differently":
[11 he ultimate issue is the fairness of the
defendant's conviction and sentence. It is not
enough for the defendant to prove that the first
post-conviction relief proceeding should have gone
differently. The defendant must also prove that
the flaw in the prior post-conviction relief
proceeding prevented the defendant from
establishing a demonstrable and prejudicial flaw
in the original trial court proceedings.
Grinols v. State, 10 P.3d 600, 620 (Alaska Ct. App. 2000), affd, 74 P.3d
889 (Alaska 2003); see also Jackson v. Weber, 637 N.W.2d 19, 23 (S.D.
2001) ("[I]neffective assistance of counsel at a prior habeas proceeding is
not alone enough for relief in a later habeas action. Any new effort must
eventually be directed to error in the original trial . .")." Thus, the
Supreme Court's observation that "klurmounting Strickland's high bar is
never an easy task," Padilla v. Kentucky, 559 U.S. 356, 371 (2010), is
particularly apt when it comes to postconviction counsel's assistance. If a
petitioner surmounts that high bar and proves that postconviction counsel
provided ineffective assistance, then the postconviction-counsel claim is
"The statutes in South Dakota have been amended since Jackson
was decided to preclude relief based on the ineffectiveness of
postconviction counsel. S.D. Codified Laws § 21-27-4 ("The ineffectiveness
or incompetence of counsel, whether retained or appointed, during any
collateral post-conviction proceeding is not grounds for relief under this
chapter.").
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sufficient to meet the undue-prejudice component of the good-cause
showing required to excuse a procedural default under NRS 34.726(1).
Actual prejudice to excuse procedural default under NRS 34.810
based on ineffective assistance of postconviction counsel
Similarly, a postconviction-counsel claim is sufficient to
establish cause to excuse the procedural default of another claim under
NRS 34.810(1)(b) or NRS 34.810(2) if the petitioner proves both prongs of
the ineffective-assistance test. See Lynch v. Ficco, 438 F.3d 35, 49 (1st Cir.
2006) ("In theory, Strickland attacks (including its own prejudice prong)
go to the separate 'cause' as opposed to the 'prejudice' standards for
overcoming default."); see also Clabourne, 745 F.3d at 377 (explaining that
to establish "cause" to allow federal habeas review of trial-counsel claim
that was defaulted in state court based on allegation of ineffective
assistance of postconviction counsel, petitioner "must establish that his
counsel in the state postconviction proceeding was ineffective" by
establishing both prongs of the Strickland test). But to excuse the
procedural default of another claim under NRS 34.810, the petitioner also
must demonstrate actual prejudice. NRS 34.810(1)(b), (3).
If a petitioner who seeks to excuse a procedural default based
on ineffective assistance of counsel makes the showing of prejudice
required by Strickland, he also has met the actual prejudice showing
required to excuse the procedural default. 14 See, e.g., Joseph v. Coyle, 469
14 0ther courts have suggested that actual prejudice requires a
greater showing than that required for the prejudice prong of an
ineffective-assistance claim, see, e.g., United States v. Dale, 140 F.3d 1054,
continued on next page . . .
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F.3d 441, 462-63 (6th Cr. 2006) (explaining that because the Supreme
Court has held in Strickler v. Greene, 527 U.S. 263 (1999), that the
materiality prong of a Brady 15 violation parallels the prejudice showing
required to excuse a procedural default, the prejudice prong of the
ineffective-assistance test, which is similar to the Brady materiality prong,
also parallels the prejudice showing required to excuse a procedural
default); Lynch, 438 F.3d at 49-50 (same); Mincey v. Head, 206 F.3d 1106,
1147 n.86 (11th Cir. 2000) (same); accord State u. Bennett, 119 Nev. 589,
599, 81 P.3d 1, 8 (2003) (following Strickler and equating Brady
materiality with the prejudice required to excuse a procedural default
under NRS 34.810). 16
With this foundation in mind, we turn to Rippo's claims and
whether he has met both prongs of the ineffective-assistance test with
respect to postconviction counsel and therefore has demonstrated cause
. continued
1056 n.3 (D.C. Cir. 1998); see Armstrong v. Kemna, 590 F.3d 592, 606 (8th
Cir. 2010) (citing inconsistent decisions on the issue by different Eighth
Circuit panels), but we are not persuaded that there is a useful distinction
to be made,
i5Brady v. Maryland, 373 U.S. 83 (1963).
16 This
court previously observed in Lozada v. State, 110 Nev. 349,
358, 871 P.2d 944, 949-50 (1994), that the two prejudice showings are
"separate and distinct" but also suggested that when "both prejudice
requirements happen to address the same concern," then the same
showing will satisfy them. To the extent that these observations in
Lozada are inconsistent with this decision, we disavow them.
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and prejudice to excuse the applicable procedural bars based on the
ineffective assistance of postconviction counse1. 17 Applying the two-prong
test set forth above, we conclude that Hippo failed to show that
postconviction counsel was ineffective, and that he was not entitled to an
evidentiary hearing on the allegations related to postconviction counsel
because they either lack merit or were not supported by sufficient factual
allegations, see Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225
(1984) (stating that postconviction petitioner is entitled to evidentiary
hearing when he asserts specific factual allegations that, if true, would
entitle him to relief). We therefore conclude that although Hippo raised
his postconviction-counsel claims within a reasonable time after they
became available, he failed to demonstrate undue prejudice to excuse the
procedural default under NRS 34.726(1) or cause and actual prejudice to
excuse the procedural defaults under NRS 34.810. 18
17 Rippo's opening brief focuses primarily on the substantive merits
of the grounds asserted in the petition, with limited attention paid to the
threshold cause-and-prejudice inquiry based on the allegedly ineffective
assistance provided by prior postconviction counsel. While the assertions
of ineffective assistance of postconviction counsel in Rippo's briefs are not
as detailed or focused as we would prefer, they also are not the kind of
"pro forma, perfunctory" assertions of ineffective assistance that we
discouraged in Evans v. State, 117 Nev. 609, 647, 28 P.3d 498, 523 (2001).
18 Tothe extent that Rippo relies on arguments other than ineffective
assistance of postconviction counsel to establish cause and prejudice as to
any particular defaulted ground for habeas relief, those arguments are
addressed in the discussion of each defaulted claim.
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Judicial bias (claim 1)
In claim 1 of his petition, Rippo alleged that his convictions
and death sentences are invalid because the trial judge was biased and
that trial and appellate counsel were ineffective because they failed to
adequately challenge the trial judge's alleged bias He argues on appeal
that the district court erred in applying the procedural default under NRS
34.810(2) and the law-of-the-case doctrine to this claim.
The judicial-bias claim is based on allegations that the trial
judge (1) was the subject of a federal investigation at the time of trial,
(2) knew that the Clark County District Attorney's Office and/or the Las
Vegas Metropolitan Police Department (Metro) were involved in the
investigation but failed to disclose that fact, and (3) was acquainted with a
trial witness (Denny Mason) but failed to disclose that fact because it
would have incriminated the judge in the federal investigation. This claim
was raised on direct appeal and rejected by this court. Rippo v. State, 113
Nev. 1239, 1248-50, 946 P.2d 1017, 1023-24 (1997). Normally, the law-of-
the-case doctrine would preclude further litigation of this issue. See Hall
v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975). Rippo argues,
however, that the doctrine should not apply because the facts are
substantially different than they were on direct appeal and because our
prior decision was based on false representations by the State and the
trial judge. See Hsu v. Cty. of Clark, 123 Nev. 625, 630, 173 P.3d 724, 729
(2007) (observing that federal courts recognize exception to the doctrine
when "subsequent proceedings produce substantially new or different
evidence").
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The first and third allegations above were raised in Rippo's
opening brief on direct appeal. We rejected both. Rippo, 113 Nev. at 1248,
946 P.2d at 1023 (concluding that "[a] federal investigation of a judge does
not by itself create an appearance of impropriety sufficient to warrant
disqualification"); id. at 1249, 946 P.2d at 1024 (observing that "no
evidence exists, beyond the allegations set forth by the defense, that [the
trial judge] knew either Denny Mason or his alleged business partner,"
but that "[e]ven if a relationship existed, Rippo has not shown that the
judge's alleged acquaintance with Mason's business partner would result
in bias"). There are no substantially different facts alleged now that
would warrant an exception from the law-of-the-case doctrine with respect
to our prior decision regarding these allegations.
The allegation that the trial judge failed to disclose that he
knew that the prosecutor's office and/or Metro were involved in the federal
investigation also was raised in Rippo's opening brief on direct appeal. We
observed that there was no evidence "that the State was either involved in
the federal investigation or conducting its own investigation of [the trial
judge]." Id. at 1248, 946 P.2d at 1023. Flippo now asserts that the
prosecutors and the trial judge lied about the State's involvement in the
federal investigation, relying on the federal government's trial
memorandum and a defense motion that were filed in the trial judge's
federal prosecution and testimony presented in the federal trial, which
took place after Rippo's trial. The documents and testimony indicate that,
as part of a sting operation, an unnamed chief or deputy district attorney
worked with federal authorities to bring a fictitious case before the trial
judge and that the judge saw a person wearing a Metro jacket when FBI
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agents executed a search warrant at his home. It is not entirely clear that
this new information establishes that the State was engaged in its own
investigation of the trial judge or that there was a joint state/federal
investigation as opposed to a federal investigation in which some state
actors provided assistance to the federal authorities. But even if it does,
the facts remain insufficient to establish judicial bias.
Rippo's judicial-bias claim is not that the trial judge was
biased against him specifically but more that the investigation and
indictment created a "compensatory, camouflaging bias"—that the trial
judge would be biased against criminal defendants at the time to curry
favor with the agencies investigating him and prove that he was not soft
on criminal defendants. Bracy v. Gramley, 520 U.S. 899, 905 (1997)
(describing similar claim of judicial bias). Taking Rippo's allegations as
true, there remains "[n]o factual basis. . . for Rippo's argument that [the
trial judge] was under pressure to accommodate the State or treat
criminal defendants in state proceedings less favorably" or that he was
biased against Rippo because of the investigation and indictment. Rippo,
113 Nev. at 1248, 946 P.2d at 1023. Such speculative allegations simply
are not sufficient to warrant discovery or an evidentiary hearing on this
issue as they do not support the assertion that the trial judge was actually
biased in this case. Cf. Bracy, 520 U.S. at 905-09 (holding that a
petitioner had demonstrated good cause for discovery to prove a
"compensatory, camouflaging bias" on the part of a trial judge who had
been indicted (and later convicted) of taking bribes from criminal
defendants to fix cases where petitioner "support[ed] his discovery request
by pointing not only to [the trial judge's] conviction for bribe taking in
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other cases, but also to additional evidence. . . that lend[ed] support to his
claim that [the trial judge] was actually biased in petitioner's own case,"
including "specific allegations' that [petitioner's] trial attorney, a former
associate of [the trial judge's] in a law practice that was familiar and
comfortable with corruption, may have agreed to take [petitioner's] capital
case to trial quickly so that petitioner's conviction would deflect any
suspicion [that] the rigged. . . cases might attract"). Hippo therefore has
not demonstrated grounds to warrant reconsideration of our prior decision
in the face of the law-of-the-case doctrine.ls
19 Rippo'sreliance on United States v. Jaramillo, 745 F.2d 1245 (9th
Cir. 1984) is unavailing. In that case, a federal district court judge
declared a mistrial in a criminal case upon learning that he had been
indicted by a federal grand jury. Id. at 1246. Rejecting a double-jeopardy
claim, the appellate court determined that the trial judge "properly
concluded that a reasonable person with knowledge of all the facts
pertaining to the nature of the indictment would question the ability of a
judge facing prosecution to remain impartial as the presiding jurist in a
criminal proceeding." Id. at 1248. The court noted the "historically
unique problems [the trial judge] faced as a judge indicted on criminal
charges which called into question his moral fitness to sit as a judge." Id.
at 1249. Here, in contrast, the trial judge was not indicted until after
Hippo's trial. And on direct appeal, we rejected the idea that the
investigation alone would have warranted his disqualification in all
criminal trials. Rippo, 113 Nev. at 1248-49, 1249 & n.1, 946 P.2d at 1023
& n.1 ("We further note that [the trial judge's] disqualification in the
instant case would lead to his disqualification in all criminal cases he
heard while subject to the federal investigation. Such a result would be
insupportable.").
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Hippo also has not demonstrated good cause and actual
prejudice to excuse his failure to re-raise the judicial-bias claim in the first
habeas petition. He asserts that prior postconviction counsel provided
ineffective assistance in failing to further investigate the facts
surrounding the judicial-bias claim and failing to re-raise the claim in the
first petition or to repackage it as a trial- or appellate-counsel claim. We
are not convinced that prior postconviction counsel was incompetent for
failing to repackage the judicial-bias claim as a trial- or appellate-counsel
claim for two reasons. First, both trial and appellate counsel raised the
judicial-bias issue, so any ineffective-assistance claim would have been
belied by the record. Second, after evaluating trial and appellate counsel's
performance based on "counsel's perspective at the time," Strickland, 466
U.S. at 689, it is not clear that trial and appellate counsel were deficient in
failing to present the evidence that is now offered in support of the
judicial-bias claim. The new information is based on documents filed in
connection with and testimony at the federal trials in 1997 and 1998, after
Hippo's trial. That evidence clearly was not available to trial counsel,
making it difficult to fault trial counsel for failing to discover and present
it. Even if some of the documents were filed in the federal case while the
direct appeal was pending, appellate counsel could not have expanded the
record before this court to include evidence that was not part of the trial
record, see Carson Ready Mix, Inc. v. First Nat'l Bank of Nev., 97 Nev. 474,
476-77, 635 P.2d 276, 277-78 (1981), making it difficult to fault appellate
counsel's performance. Granted, the new information could have been
discovered in time for prior postconviction counsel to use it as grounds to
reassert the judicial-bias claim in the first petition, but we are not
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convinced that prior habeas counsel's failure to further investigate and re-
assert this claim was objectively unreasonable. The mere omission of a
claim that has been further developed by new counsel "'does not raise a
presumption that prior habeas corpus counsel was incompetent.' In re
Reno, 283 P.3d 1181, 1210 (Cal. 2012) (quoting In re Clark, 855 P.2d 729,
749 (Cal. 1993)). Because this court had rejected the generic proposition
that the trial judge had to be disqualified in all criminal cases while he
was subject to the federal investigation, Rippo, 113 Nev. at 1248, 1249 &
n.1, 946 P.2d 1023 & n.1, and the new information still does not establish
bias in this case, Hippo has not demonstrated that the judicial-bias claim
is "one that any reasonably competent [habeas] counsel would have"
reasserted or that the claim would have entitled him to relief, Reno, 283
P.3d at 1211. Therefore, the postconviction-counsel claim lacks merit and
is not adequate cause to excuse the procedural default of the judicial-bias
claim under NRS 34.810(2).
Prosecutorial misconduct (claims 2 and 9)
Hippo raised numerous allegations of prosecutorial misconduct
that appear in claims 2 and 9 in his second habeas petition. Those
allegations are that the State violated Brady v. Maryland, 373 U.S. 83(1963) (claim 2); the State failed to correct false testimony by its witnesses
(claim 2); the State failed to disclose and misrepresented its involvement
in the federal investigation of the trial judge (claim 2); the prosecutors
made improper arguments to the jury (claim 2); and the State intimidated
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a defense witness (claim 9). 20 These claims were primarily raised as trial
error, but claim 2 also included summary allegations that trial and
appellate counsel were ineffective to the extent that they did not litigate or
failed to fully litigate or uncover the misconduct alleged in that claim. The
district court determined that both claims 2 and 9 were procedurally
defaulted under NRS 34.810(2) and that claim 2 was also defaulted under
NRS 34.810(1)(b). The court also observed that several of the misconduct
allegations were subject to the law-of-the-case doctrine. See Hall v. State,
91 Nev. 314, 315, 535 P.2d 797, 798 (1975).
Brady allegations
We first address the arguments in claim 2 that are based on
Brady violations. "Brady and its progeny require a prosecutor to disclose
evidence favorable to the defense when that evidence is material either to
guilt or to punishment." State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8
(2003) (quoting Mazzan v. Warden, 116 Nev. 48, 66, 993 P.2d 25, 36
(2000)). To establish a Brady violation, the defendant must show (1) that
the State withheld evidence, (2) which is favorable to the accused because
20Included in his allegations of prosecutorial misconduct, Rippo
claims that the State violated a discovery order (claim 2) as evidenced by a
series of nondisclosures concerning the existence of a jailhouse informant,
a forensic report, exculpatory statements a witness made to the
prosecutor, and the State's release of "twelve inches of document discovery
on the day of calendar call." Absent from Rippo's claim, however, is any
allegation of prejudice even assuming his contentions are true.
Accordingly, he has not demonstrated that postconviction counsel was
ineffective in this regard.
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it is exculpatory or impeaching, and (3) that prejudice resulted because the
evidence was material, i.e., that there is a reasonable possibility of a
different result had there been disclosure. Id. at 599-600, 81 P.3d at 8.
When a Brady claim is raised in an untimely or successive petition, the
cause-and-prejudice showing can be met based on the second and third
prongs required to establish a Brady violation. Id. at 599, 81 P.3d at 8.
The Brady allegations here involve claims that the State withheld
evidence that could have been used to impeach several of the State's
witnesses: Thomas Sims, Thomas Christos, and Michael Beaudoin. 21
The Brady allegations related to Sims and Christos focus on
whether the State withheld evidence of cooperation agreements whereby
these witnesses received favorable treatment in exchange for testifying. A
promise made by the prosecution to a key witness in exchange for the
witness's testimony constitutes impeachment evidence that must be
disclosed under Brady. Giglio v. United States, 405 U.S. 150, 154-55
(1972). As the district court observed, Sims and Christos were thoroughly
21 Thepetition below made summary allegations (claim 2, II 13, 14)
that the State failed to disclose exculpatory or impeachment evidence
related to Donald Hill (aka William Burkett) and David Levine, but it
included no specific allegations regarding the Brady violation related to
Hill and made a summary allegation that Levine "expected to receive a
favorable parole recommendation in exchange for his testimony." In his
appellate briefs, Rippo argues that both witnesses testified falsely. The
allegation as to Hill appears to involve a post-trial recantation, while the
allegation as to Levine appears to involve a Giglio claim—that the
prosecution knowingly used false testimony. See Giglio v. United States,
405 U.S. 150 (1972). Those arguments are addressed infra.
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"cross-examined [during trial] regarding continuances, quashed bench
warrants, and future benefits" with respect to other criminal charges.
Both witnesses denied being promised, expecting, or receiving any benefits
in exchange for their testimony. A prosecutor also testified that Sims was
not promised anything in exchange for his testimony, and the jury was
aware that Sims' pending felony case had been continued repeatedly over
the course of several years, the extent to which the delay in that
proceeding may have benefited him, and the prosecutor's reasons for
agreeing to the continuances. 22 Hippo's allegations are based on records
related to the disposition of various criminal cases involving Sims and
Christos before and after they testified. But those favorable dispositions
are a matter of public record that was not and could not be withheld by the
State. They also do not suffice to establish either explicit or tacit
agreements between the State and these witnesses in exchange for their
testimony. See Bell v. Bell, 512 F.3d 223, 233-34 (6th Cir. 2008)
(concluding that handling of witness's case does not prove existence of an
agreement between prosecution and witness); Middleton v. Roper, 455
F.3d 838, 854 (8th Cir. 2006) (concluding that speculation based on
sequence of events in which witnesses obtained favorable dispositions of
criminal charges after testifying against defendant was not sufficient to
22 Rippo suggests that postconviction counsel was ineffective for
failing to raise a trial-counsel claim based on trial counsel's failure to have
the prosecutor's testimony read into the record to impeach Sims. The
record, however, shows that the prosecutor testified before the jury at
trial.
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demonstrate that prosecution withheld evidence of deal offered to
witnesses in exchange for their testimony); Shabazz v. Artuz, 336 F.3d
154, 165 (2d Cir. 2003) ("The government is free to reward witnesses for
their cooperation with favorable treatment in pending criminal cases
without disclosing to the defendant its intention to do so, provided that it
does not promise anything to the witnesses prior to their
testimony.... [The fact that a prosecutor afforded favorable treatment to
a government witness, standing alone, does not establish the existence of
an underlying promise of leniency in exchange for testimony."). Rippo
therefore has not made sufficient factual allegations as to Sims and
Christos to support a finding that the State violated Brady. Nor are the
speculative allegations offered 12 years after trial based on public
information that has long been available sufficient to warrant an
evidentiary hearing. See Hargrove v. State, 100 Nev. 498, 502-03, 686
P.2d 222, 225 (1984). For these reasons, the Brady claim as to these
witnesses is not sufficient itself to establish cause and prejudice. 23 The
deficiencies in Rippo's Brady claim as to these witnesses also undermine
his effort to rely on the alleged ineffective assistance of postconviction
23 As a separate but related subclaim, Rippo argues that the State
violated Brady by allowing Sims and Christos to testify falsely that they
received no promises of leniency or favorable treatment in exchange for
their testimony. This argument fails, however, as Rippo has not alleged
sufficient facts to support the allegation that Sims and Christos testified
falsely.
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counsel as cause to excuse his failure to raise the Brady claim in the first
petition.
The Brady allegation involving Beaudoin is similar to those
involving Sims and Christos, but where Hippo failed to allege any
additional facts sufficient to establish a Brady violation related to those
witnesses, Hippo has offered additional specific allegations with respect to
Beaudoin. With his petition, Hippo submitted a declaration dated May 18,
2008, in which Beaudoin indicates that he was arrested on felony drug
charges after he began cooperating with the prosecution in this case and
that he contacted one of the attorneys prosecuting Hippo "at some point
before [he] was scheduled to testify" and asked for help since he was
helping the prosecution by testifying against Rippo. 24 According to the
declaration, as a result of that call, the district attorney's office dropped
one of the charges and reduced the other from a felony to a gross
misdemeanor, and Beaudoin avoided going to prison on the charges. The
declaration indicates that if "anyone had bothered to ask [him] about these
matters, [he] would have provided them with all of the information that is
contained in [the] declaration." 25 The latter representation seems
questionable since Beaudoin was asked about inducements at trial and
24 TheState does not acknowledge or address the declaration in its
appellate brief, but we are not convinced that an evidentiary hearing is
warranted on this claim based solely on that omission.
25 Beaudoin also states in the declaration that he believes that Hippo
"is responsible for the crime" but does not "believe that he should receive
the death penalty because it's not going to bring Denise back."
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testified that there had been none. It is entirely possible that his trial
testimony was truthful because the declaration does not indicate that the
prosecutor made any explicit or tacit promises to Beaudoin before he
testified. As discussed with respect to the Brady claim involving Sims and
Christos, absent such a promise by the prosecution, there was no Brady
violation. Regardless, we also are not convinced that the information in
the Beaudoin declaration is material as required to establish a Brady
violation.
Beaudoin had already testified before the grand jury and his
trial testimony was consistent with that prior testimony, thus
undermining the impeachment value of the information in the
postconviction declaration, and Beaudoin was not such a key witness for
the prosecution that additional impeachment of him beyond that
presented at trial (his criminal record) would lead to a reasonable
possibility of a different outcome at trial. CI Harris v. Wier, 553 F.3d
1028, 1033-34 (6th Cir. 2009) (concluding that there was reasonable
probability of different outcome at trial had prosecution disclosed promises
of leniency or favorable treatment in exchange for witness's testimony
where witness provided only eyewitness account of shooting and identified
defendant as the shooter, providing only evidence that directly linked
defendant to the shooting). Thus, even accepting the representations in
the declaration as true and assuming that there was a promise of
favorable treatment in exchange for Beaudoin's testimony shortly before
he testified at trial, the failure to disclose that promise does not
undermine our confidence in the jury's verdict. See Kyles v. Whitley, 514
U.S. 419, 434-35 (1995) (explaining that materiality prong of Brady
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involves whether the violation undermines confidence in the verdict). For
these reasons, we conclude that this Brady claim lacks merit and cannot
itself establish cause and prejudice and that Hippo has not demonstrated
that postconviction counsel was ineffective in failing to raise this Brady
claim.
False testimony
Hippo also alleges prosecutorial misconduct related to three
jailhouse informants: David Levine, James Ison, and Donald Hill (aka
William Burkett). These witnesses testified about admissions that Hippo
made to them while he was incarcerated pending trial in this case. Each
informant testified that he had known Hippo before the murders and that
Hippo admitted his involvement in the murders. Based on handwritten
declarations provided by Levine, Ison, and Hill in connection with the
second postconviction petition, Rippo asserts that these witnesses gave
false testimony. We first address the allegations involving Levine and
Ison and then turn to those involving Hill.
Hippo alleges that prosecutors or police officers provided
Levine and Ison with information about the case that they then related at
trial as information obtained from Rippo, making their testimony appear
more credible. Hippo asserts that Levine and Ison could have been
impeached with this information had it been disclosed to the defense.
Although couched in terms of the State's alleged failure to disclose
material exculpatory and impeachment information, Hippo's claim speaks
more to the prosecution knowingly presenting false or misleading
testimony. See Giglio v. United States, 405 U.S. 150, 153 (1972); see also
Napue v. Illinois, 360 U.S. 264, 269 (1959) (requiring prosecutor to correct
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testimony if he learns of its falsity after the testimony has been
presented). Where the prosecution knowingly presents false or misleading
testimony or fails to correct false testimony after learning of its falsity, a
new trial is required if "the false testimony used by the State in securing
the conviction. . . may have had an effect on the outcome of the trial."
Napue, 360 U.S. at 272. The claim is procedurally barred under both NRS
34.726 and NRS 34.810. Hippo appears to press two arguments on appeal
to excuse the procedural bars.
First, he relies on the alleged withholding of evidence by the
State. Cf. State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003)
(explaining that withholding of favorable evidence may establish cause for
raising Brady claim in an untimely and/or successive petition). This
argument is insufficient because any falsity in Levine's and Ison's
testimony about Hippo's admissions would have been known to Hippo at
the time that the witnesses testified. Cf. West v. Johnson, 92 F.3d 1385,
1398-99 (5th Cir. 1996) (rejecting Brady claim that prosecution withheld
evidence suggesting that defendant fabricated his confession because
defendant "knew whether or not he had taken the necklace"); United
States v. Diaz, 922 F.2d 998, 1007 (2d Cir. 1990) (concluding that there
was no improper suppression of evidence under Brady where evidence at
issue involved defendant's whereabouts, which were within defendant's
knowledge).
Second, Rippo relies on the alleged ineffective assistance of
postconviction counsel to excuse the procedural bars to consideration of
the claim as to Levine and Ison. The district court apparently rejected
this argument on the prejudice prong of the ineffective-assistance claim,
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p7.
concluding that the declarations offered by Rippo do not undermine
confidence in the verdict because Levine and Ison have not recanted their
testimony that Rippo admitted his involvement in the murders. We agree
with the district court's reading of the declarations provided by Levine and
Ison.
Although the information in the declarations could have been
used to impeach these witnesses had the defense been aware of it, we are
not convinced that there is a reasonable likelihood that the allegedly false
portions of Levine's or 'son's testimony could have affected the jury's
verdict (GigliolNapue standard) or that there is a reasonable possibility of
a different outcome had the information been disclosed (Brady standard).
Both witnesses were impeached regarding discrepancies between their
statements to police and their trial testimony. Their credibility was
enhanced more by their long-term acquaintance with Rippo than by the
details that their declarations bring into question. In light of those
circumstances and the fact that neither witness has recanted his
testimony that Hippo confessed to his involvement in the murders, we
agree with the district court's assessment that Hippo cannot demonstrate
prejudice based on postconviction counsel's failure to raise claims related
to Levine's and Ison's testimony. 26 Accordingly, the postconviction-counsel
26 Werecognize that some of the details brought into question by the
declarations arguably corroborated Hunt's testimony and therefore lent
credibility to her account of the murders, but we are not convinced that
any of those corroborating elements in themselves were of such
continued on next page . . .
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claim lacks merit and therefore is not cause to excuse the procedural
default of this claim.
Rippo's allegations as to Hill are of a different nature in that
they appear to involve a partial recantation rather than the prosecution
withholding evidence or knowingly presenting false testimony. Hill's
postconviction declaration states that, contrary to his testimony at trial,
Rippo never suggested that he wanted to have Hunt killed and that as far
as Hill knew at the time, Hunt was not going to testify against Rippo. 27
The declaration does not suggest that the prosecution knew or had reason
to know that this part of Hill's testimony was false, and although this
claim is included in a section of Rippo's appellate brief that is focused on
prosecutorial misconduct, Rippo does not argue that the prosecution was
aware that Hill testified falsely or suppressed evidence that could have
been used to impeach Hill. 28 Nor does the declaration call into question
• . . continued
significance that undermining them would also undermine our confidence
in the jury's verdict.
27 The declaration also states that Hill's girlfriend was not
incarcerated at the women's prison in Carson City with Hunt during the
relevant time period. Hill testified similarly at trial: when asked at trial
whether his fiancée was still at the women's prison, he responded that she
was not.
28 Rippo'sappellate brief suggests that Hill revealed his status as a
"career criminal informant" for the first time on cross-examination at trial.
But in the trial testimony cited in the brief, Hill, who had been
incarcerated for all but nine months between 1982 and 1996, testified that
he had acted as an informant in two cases, including this one. The
continued on next page . . .
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Hill's trial testimony that Rippo admitted that he strangled the victims
and put their bodies in a closet. Given these deficiencies, we cannot
conclude that the district court erred in determining that Rippo had not
demonstrated good cause and prejudice to excuse the procedural default of
this claim.
Prosecutorial misconduct in closing argument
Rippo also asserts that the prosecutors committed misconduct
during guilt- and penalty-phase argument. We first address the claims
that had been raised before on direct appeal and then turn to the new
claims.
The allegations of prosecutorial misconduct that were raised
and rejected on direct appeal, Rippo v. State, 113 Nev. 1239, 1253-55 &
n.5, 946 P.2d 1017, 1026-28 & n.5 (1997), are subject to the law-of-the-case
doctrine, which precludes further litigation of those claims. See Hall v.
State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975). Given that further
litigation of those claims would have been barred by the law-of-the-case
doctrine, we are not convinced that postconviction counsel's failure to raise
them again fell outside the wide range of professionally competent
assistance. Nor are we convinced by Rippo's suggestion that he has good
cause to raise these claims again because they must be considered
cumulatively. In particular, the assertion of "cumulative error" as cause
. . . continued
citation therefore does not appear to support the characterization of Hill
as a "career criminal informant."
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to raise these claims anew ignores our prior determination that there was
no error with respect to the claims that previously were rejected on appeal
on their merits. Rippo does not explain how argument by a prosecutor
that has been found not to be error can now be aggregated to comprise a
new claim that falls outside the law-of-the-case doctrine. See In re Reno,
283 P.3d 1181, 1223-24 (Cal. 2012) (rejecting "cumulative error"
explanation for capital petitioner to raise a claim again that was rejected
on its merits in a prior appeal and explaining that such a claim "cannot
logically be used to support a cumulative error claim because [the
appellate court has] already found there was no error to cumulate").
One prosecutorial-misconduct claim that was raised on appeal
(the characterization of Rippo as "evil" during penalty-phase argument)
would not have been subject to the law-of-the-case doctrine because it was
not preserved, and therefore this court chose not to consider it on the
merits. 113 Nev. at 1260, 946 P.2d at 1030. But that claim and the other
new claims of prosecutorial misconduct are procedurally barred under
NRS 34.726 and NRS 34.810 because they were untimely and could have
been raised before. Rippo generally asserts that postconviction counsel
was ineffective for omitting trial- or appellate-counsel claims based on
these alleged instances of prosecutorial misconduct. We conclude,
however, that Hippo has not demonstrated any misconduct (i.e., error) as
to the challenged comments by the prosecutor; therefore he has not met
either prong of the omitted trial-counsel claim or the performance prong as
to the omitted appellate counsel The postconviction-counsel claim
therefore lacks merit and is not sufficient cause to excuse the procedural
default of these trial-error and ineffective-assistance claims regarding
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prosecutorial misconduct in argument at the guilt and penalty phases.
And in the absence of any error, those claims also could not be cumulated
with the instances of prosecutorial misconduct that were found to have
merit on direct appeal (the reference to evidence not presented at trial and
the comment on Rippo's failure to call a witness) but were detei mined to
be harmless both individually and cumulatively, see Rippo, 113 Nev. at
1253-55 & n.5, 946 P.2d at 1026-28 & n.5. On that basis, Rippo also
cannot rely on "cumulative error" as cause to raise the new claims of
prosecutorial misconduct. See Reno, 283 P.3d at 1223-24.
Witness intimidation
The allegation of improper witness intimidation (claim 9) was
rejected by this court on direct appeal. Rippo, 113 Nev. at 1251, 946 P.2d
at 1025. Given that further litigation of the issue is precluded by the law-
of-the-case doctrine, see Hall, 91 Nev. at 315, 535 P.2d at 798, we are not
convinced that postconviction counsel's failure to re-raise this issue fell
outside of the wide range of professionally competent assistance. We also
reject the idea that the need to consider claims of prosecutorial misconduct
cumulatively provides cause to raise this claim again where it was rejected
previously on the merits. See Reno, 283 P.3d at 1223-24.
Failure to investigate and present mitigating evidence (claim 3)
Rippo argues that the district court erred in procedurally
defaulting his claim that trial counsel were ineffective for failing to
investigate and present mitigating evidence and submit a special verdict
form listing possible mitigating circumstances. To excuse the procedural
default, Rippo asserts that postconviction counsel was ineffective for
failing to raise the trial-counsel claim. We conclude that this claim is not
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sufficient to excuse the procedural default because Hippo fails to meet
either prong of the Strickland test to support a viable trial-counsel claim
and therefore cannot demonstrate that postconviction counsel was
ineffective in failing to raise it.
Hippo claims that postconviction counsel should have asserted
an ineffective-assistance claim based on trial counsel's failure to present
evidence that he suffered from a neuropsychological impairment. As
support, he relies on a neuropsychological evaluation conducted 12 years
after trial, which concluded that he had "mild neurocognitive dysfunction"
and Attention Deficit Hyperactivity Disorder and Obsessive-Compulsive
Disorder. But thefl reasonableness of counsel's performance is evaluated
"from counsel's perspective at the time," without "the distorting effects of
hindsight." Strickland v. Washington, 466 U.S. 668, 689 (1984). At the
time of trial in this case, counsel had access to multiple psychological
evaluations of Hippo from years before trial and just before trial, none of
which revealed any psychoses, neuropsychological impairments, or major
affective disorders. Considering the evaluations available to trial counsel,
we cannot fault postconviction counsel for not asserting that trial counsel's
failure to seek additional evaluations fell outside "the wide range of
reasonable professional assistance." Id.Hippo further claims that postconviction counsel should have
asserted an ineffective-assistance claim based on trial counsel's failure to
present testimony from a violence risk assessment expert and an
institutionalization expert to establish that he would function well in a
structured prison setting. Trial counsel did present some lay testimony to
this effect from a prison vocational instructor who had interacted with
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441,1
Rippo. We are not convinced that trial counsel's failure to present an
expert to provide similar testimony was unreasonable. Nor does the
failure to present such testimony undermine our confidence in the
outcome of the penalty hearing, see id. at 694 ("A reasonable probability is
a probability sufficient to undermine confidence in the outcome."),
particularly since any expert opinion would have been challenged on cross-
examination with evidence that Rippo was found with weapons in his cell
and had exposed himself to and threatened to kill a prison guard, the
same as the witness who did testify at the penalty hearing. For these
reasons, the ineffective-assistance-of-trial-counsel claim lacks merit, and
we cannot fault postconviction counsel for failing to assert it. 29
Rippo also claims that postconviction counsel should have
asserted an ineffective-assistance claim based on trial counsel's failure to
29 Rippo also claims that postconviction counsel should have
challenged trial counsel's failure to prepare a social history and provide it
to a mental health expert for evaluation. As support, he provided a
lengthy social history and an evaluation from psychologist Dr. Jonathan
Mack, who opined that Rippo experienced "significant psychosocial trauma
in the home of his mother and step-father, and possibly earlier in the
home of his biological father and mother," which "caused a free floating
anxiety" leading to obsessive-compulsive and drug-addictive tendencies,
and that Rippo had a suppressed variant of post-traumatic stress disorder
that was difficult to diagnosis perhaps due to "conscious and unconscious
repression of family-of-origin trauma." This new mitigation evidence lacks
sufficient persuasiveness to have altered the outcome of the penalty
hearing had it been presented to the jury. We therefore are not convinced
that postconviction counsel was ineffective in omitting this trial-counsel
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present evidence that Hippo was sexually and physically abused by his
stepfather James Anzini At the penalty phase, trial counsel presented
one witness who testified about Hippo's childhood and upbringing, his
sister Stacie. She described Hippo as the "family clown" and a "great
brother" who was protective of and encouraging to his sisters. She also
testified about their childhood, explaining that life with Anzini was
difficult. He was a compulsive gambler and often took Hippo's allowance
and paychecks to support his gambling habit. He frequently pushed Hippo
around and told him that he would never amount to anything, and he
degraded women in front of Hippo. So trial counsel did present some
evidence at the penalty phase on the topic of Hippo's childhood and
upbringing. Hippo argues, however, that the presentation fell short due to
trial counsel's failure to adequately investigate and interview his family
members and that reasonably competent counsel would have uncovered
evidence of sexual and physical abuse.
To support his claim, Hippo filed several declarations by
various family members, including his sister Stacie; his father; his former
stepmother; and Anzini's ex-wife, sister, brother-in-law, former sister-in-
law, and sons (Hippo's stepbrothers). In her declaration, Stacie recalls
that Anzini was abusive in that he was demeaning toward women; played
games that frightened her, her sister, and Hippo; and was extremely
aggressive when he played board games with the children, calling Hippo a
"sissy" when he lost to his sisters. She states that Anzini enjoyed scaring
and taunting the children and that their mother and Anzini had violent
arguments. She describes Anzini as physically abusive to the children but
that she was unaware of "what, if anything [Anzini] did to [Hippo] that
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tvn
may have had any sexual overtones." In the other declarations, Anzini is
described as physically and verbally abusive. Most of the declarants never
saw instances of physical abuse involving Hippo, but they suspected that
Anzini had physically abused Hippo based on his general character for
such abuse or because they saw bruises on Hippo or his sisters that they
felt were not sufficiently explained. Many of the declarants also suggested
that Hippo had been a happy, good boy and that being raised by Anzini
must have changed him. None of the declarations suggest that Anzini
sexually abused Hippo.
We first address the performance prong on the omitted trial-
counsel claim as it informs whether postconviction counsel's omission of
that claim was ineffective. When it comes to preparing for the penalty
phase of a capital case, trial counsel generally has a duty to conduct "a
thorough investigation of the defendant's background." Williams v.
Taylor, 529 U.S. 362, 396 (2000). But Strickland does not require the
same investigation in every case. Cullen v. Pinholster, 563 U.S. 170, 195
(2011). "[A] particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel's judgments." Strickland, 466 U.S. at 691.
The test "calls for an inquiry into the objective reasonableness of counsel's
performance, not counsel's subjective state of mind." Harrington V.
Richter, 562 U.S. 86, 110 (2011).
Here, Stacie's declaration indicates that trial counsel met with
her and other unidentified members of Hippo's family before the penalty
hearing to find out if any of them were willing to testify during the penalty
hearing and Stacie agreed to do so. She suggests that her testimony
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would have been more detailed about the abuse perpetrated by Anzini if
trial counsel had better prepared her. But at the penalty hearing, trial
counsel asked Stacie broad questions about how Anzini was around the
house and how he was toward Hippo, and in response she never suggested
significant physical abuse even though it is clear that she knew Rippo's
upbringing was important when she observed at the end of her testimony
that "a lot of your upbringing directs your life." Even assuming that trial
counsel spent a limited amount of time with Stacie before she testified, we
are not convinced that counsel's acts or omissions in this respect were
outside the wide range of professionally competent assistance.
We are not as confident addressing the performance prong
with respect to the more general allegation that trial counsel failed to
interview and present the testimony of other family members. Stacie's
declaration does not identify the other family members who were present
for the meeting with counsel before the penalty hearing, but the family
members who provided declarations for the postconviction petition
indicate that they were never contacted by trial counsel. Absent an
evidentiary hearing, it is difficult to determine whether trial counsel
considered contacting other family members or had any reason to believe
such an investigation would be fruitful. In this respect, Stacie's testimony
at the penalty phase and the letter that counsel read into the record from
Rippo's mother suggest that no one led trial counsel to believe there was
more significant physical abuse or any sexual abuse and therefore
counsel's investigation and presentation may have been within the wide
range of professionally competent assistance in this respect. In the same
vein, Rippo has not specifically alleged that he informed trial counsel
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about the abuse or identified any family members who could testify to the
abuse. See Strickland, 466 U.S. at 691 ("The reasonableness of counsel's
actions may be determined or substantially influenced by the defendant's
own statements or actions. Counsel's actions are usually based, quite
properly, on informed strategic choices made by the defendant and on
information supplied by the defendant"); see also Waldrop v. Thigpen, 857
F. Supp. 872, 915 (N.D. Ala. 1994) ("The attorney's duty under the Sixth
Amendment is to conduct a reasonable investigation, not such an
exhaustive investigation that all conceivable mitigating evidence is
necessarily uncovered."). Although we believe that Rippo has not
overcome the presumption that trial counsel's performance was within the
wide range of professionally competent assistance, we also address the
prejudice prong below.
Considering all of the information in the declarations, we are
not convinced that "there is a reasonable probability that at least one juror
would have struck a different balance" between life and death. Wiggins v.
Smith, 539 U.S. 510, 537 (2003). In addition to Stacie's testimony and the
letter from Rippo's mother, the defense presented testimony about Rippo's
good behavior in prison and for a period of time while he was on parole
and living with his mother and stepfather, Robert Duncan. The testimony
at the penalty hearing and the postconviction declarations describe Rippo
as a likeable and kind person who was skilled and intelligent. Hippo also
made a statement in allocution and expressed remorse for the victims'
deaths. Although some of the declarations include descriptions of
instances where Anzini emotionally and verbally abused Hippo, aside from
Stacie's declaration, the postconviction declarations detail little in the way
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of specific instances of physical abuse involving Rippo; many of the
declarants indicate that they suspected such abuse but had not witnessed
it or were told by someone else that Anzini was abusive toward everyone
in the house. Against this mitigating evidence, the State proved three
valid aggravating circumstances: (1) that Rippo had a prior violent felony
conviction for sexual assault, (2) that he was under a sentence of
imprisonment at the time of the murders, and (3) that the murders
involved torture. See Rippo v. State, 122 Nev. 1086, 1093, 1098, 146 P.3d
279, 284, 287 (2006) (holding that three aggravating circumstances were
invalid under McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004), but
that the jury's consideration of those aggravating circumstances was
harmless beyond a reasonable doubt). We have characterized the
mitigating evidence presented at trial in this case as "not particularly
compelling," Rippo, 122 Nev. at 1094, 146 P.3d at 284, and the additional
mitigating evidence does not add anything compelling enough for us to
conclude that there is a reasonable probability that at least one juror
would have struck a different balance—either in weighing the aggravating
and mitigating circumstances or choosing between life and death. See
Cullen, 563 U.S. at 189 (explaining that Strickland's reasonable
probability standard "requires a 'substantial,' not just 'conceivable,'
likelihood of a different result" (quoting Harrington, 562 U.S. at 112)). On
the latter point of the ultimate choice between life and death, it is
significant that Rippo took two lives. Having determined that the omitted
trial-counsel claim lacks merit, Hippo has not demonstrated cause to
excuse the procedural default of that claim based on ineffective assistance
of postconviction counsel.
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Finally, Rippo claims that trial counsel should have argued
specific mitigating circumstances and requested a special verdict form
listing specific mitigating circumstances. Postconviction counsel raised
this trial-counsel claim in the first petition. At the evidentiary hearing on
that petition, trial counsel testified that they chose not to create a list of
specific mitigating circumstances—other than the statutory mitigating
circumstances—because they wanted the jury "to think of absolutely
anything as a mitigating factor." We cannot fault postconviction counsel
for not pursuing this claim further on appeal given that the testimony
establishes that it was a strategic decision and there is no reasonable
probability that this court would have granted some form of relief based on
this claim. See Howard v. State, 106 Nev. 713, 722, 800 P.2d 175, 180
(1990) ("Tactical decision are virtually unchallengeable absent
extraordinary circumstances."), abrogated on other grounds by Harte v.
State, 116 Nev. 1054, 1072 n.6, 13 P.3d 420, 432 n.6 (2000).
Disclosure of records (claim 8)
Rippo argues that the district court erred in dismissing his
claim related to the trial court's decision to quash a subpoena for records
that were in the possession of the Department of Parole and Probation.
He argues that the trial court infringed on his constitutional right to
present a defense and confront the witnesses against him, that trial
counsel failed to "adequately litigate the disclosure of the records," and
that appellate counsel should have raised the issueS on direct appeal. To
excuse the procedural default of these claims under NRS 34.726(1) and
NRS 34.810, Rippo asserts that prior postconviction counsel was
ineffective for failing to raise them. We conclude that the postconviction-
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counsel claim lacks merit and therefore the trial-error and ineffective-
assistance claims are defaulted.
The postconviction-counsel claim lacks merit as to the
allegation of trial error because the alleged error was invited. When the
trial court held a hearing on the State's motion to quash the subpoena,
trial counsel represented that he and the prosecution had "worked
something out informally" and he did not have an objection to the court
granting the motion to quash. Under the circumstances, Rippo cannot
complain that the trial court erred when his counsel participated in and
invited the alleged error in granting the motion to quash. See Carter v.
State, 121 Nev. 759, 769, 121 P.3d 592, 599 (2005) ("A party who
participates in an alleged error is estopped from raising any objection on
appeal."). There similarly is no basis for concluding that postconviction
counsel was deficient for not presenting a trial-error claim that was both
procedurally defaulted (under NRS 34.810(1)(b) because it could have been
raised on appeal) and without merit. Accordingly, the postconviction-
counsel claim is not sufficient to excuse the procedural default of the trial-
error claim.
The postconviction-counsel claim also lacks merit as cause and
prejudice with respect to the defaulted allegations of ineffective assistance
of trial and appellate counsel. The appellate-counsel claim fails on the
prejudice prong of Strickland because there is no reasonable probability
that this omitted issue would have had success on appeal, see Kirksey v.
State, 112 Nev. 980, 998, 923 P.2d 1102, 1113-14 (1996) (explaining
Strickland prejudice in context of appellate-counsel claim), given trial
counsel's representation that the issue had been resolved informally and
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that there was no objection to granting the motion to quash, see Carter,
121 Nev. at 769, 121 P.3d at 599 ("A party who participates in an alleged
error is estopped from raising any objection on appeal."). The trial-counsel
claim fails on both prongs. As to the deficiency prong, the record indicates
that trial counsel had come to a resolution on the issue with the
prosecution and Hippo has not made any factual allegations to the
contrary. As to the prejudice prong, Hippo has not substantiated his claim
that the records would have given rise to expert testimony; even now, over
a decade after trial, Rippo has not identified an expert willing to offer
testimony about his future dangerousness and amenability to a structured
living environment based on the records. He therefore has not established
a reasonable probability of a different outcome at trial had counsel
challenged the motion to quash the subpoena. Because the appellate- and
trial-counsel claims fail, so does the postconviction-counsel claim as cause
and prejudice to excuse the procedural default of the appellate- and trial-
counsel claims.
Rippo also argues that the district court erred in dismissing
his claim that the trial court erred by preventing him from cross-
examining Diana Hunt with the results of a pretrial psychiatric
evaluation. To excuse the procedural default of this alleged trial error
under NRS 34.726(1) and NRS 34.810, Hippo asserts that prior
postconviction counsel was ineffective based on his failure to assert trial-
and appellate-counsel claims related to this alleged trial error. We
conclude that the postconviction-counsel claim lacks merit.
First, because Hippo has not identified a discovery motion or
other request for the evaluation that was denied by the trial court, he has
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not demonstrated a viable issue that reasonably competent appellate
counsel could have raised Second, because Rippo fails to allege that trial
counsel knew about the evaluation or explain what additional
investigation trial counsel should have conducted that would have
uncovered the evaluation, assuming that counsel was not aware of it, he
has not demonstrated that trial counsel's conduct did not fall within the
range of reasonable professional assistance. It further appears that there
was no viable prejudice argument to support a trial-counsel claim as trial
counsel thoroughly cross-examined Hunt and challenged her credibility,
and Hunt admitted her criminal history, involvement in the charged
crimes, and agreement to testify against Rippo to avoid murder charges.
Given the lack of any substantial basis on which to challenge trial or
appellate counsel's performance, the postconviction-counsel claim lacks
merit and cannot be sufficient cause to excuse the procedural default of
the trial-error claim."
30 Rippo also challenges the district court's denial of the following
claims related to (1) inadequate voir dire of potential jurors (claim 4),
(2) admission of prior bad act evidence (claim 5), (3) guilt phase jury
instructions (claims 6, 7, 11, and 19), (4) admission of victim-impact
evidence (claim 12), (5) penalty phase jury instructions (claims 16 and 17),
and (6) admission of gruesome photographs (claim 18). We conclude that
Rippo failed to overcome the applicable procedural bars and/or the law-of-
the-case doctrine and therefore the district court properly denied these
claims. We further reject Rippo's claim that cumulative error requires
reversal of the judgment of conviction. Any deficiencies in postconviction
counsel's representation, considered individually or cumulatively, see
McConnell, 125 Nev. at 259 n.17, 212 P.3d at 318 n.17, did not prejudice
him Finally, we reject Rippo's claim that the lethal injection protocol is
continued on next page. . .
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Actual innocence
Where, as here, a petitioner cannot demonstrate cause and
prejudice, the district court may nevertheless excuse a procedural bar if
the petitioner demonstrates that failing to consider the merits of any
constitutional claims would result in a fundamental miscarriage of justice.
Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). Typically, a
fundamental miscarriage of justice in this context requires "a colorable
showing" of actual innocence. Id. And we have allowed such gateway
claims of actual innocence with respect to a capital petitioner's death
eligibility. Id. Rippo contends that he is ineligible for the death penalty
because the three aggravating circumstances supporting his death
sentence are invalid. 31
Rippo argues that insufficient evidence supports the torture
aggravating circumstance, a claim we rejected on direct appeal. See Rippo
v. State, 113 Nev. 1239, 1263-64, 946 P.2d 1017, 1032-33 (1997). He
acknowledges our prior review but argues that we never determined
whether the evidence showed that he "inflict[ed] pain beyond the killing
. continued
unconstitutional, as this claim is not cognizable in a postconviction
petition for a writ of habeas corpus. See id. at 248-49, 212 P.3d at 311.
31 Rippochallenged two of the aggravating circumstances in claims
13 and 14 in his petition. Those claims were subject to the same
procedural bars discussed in this opinion. The claims are addressed here
only to the extent that they are the basis for Rippo's assertion of actual
innocence as a gateway to consideration of his procedurally defaulted
claims.
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itself." Hernandez v. State, 124 Nev. 978, 984, 194 P.3d 1235, 1239 (2008),
overruled on other grounds by Armenta-Carpio v. State, 129 Nev., Adv. Op.
54, 306 P.3d 395, 396 (2013). His claim is patently without merit based on
this court's observation regarding the evidence of torture inflicted on the
victims, which comports with the requirement identified by Rippo. Rippo,
113 Nev. at 1264, 946 P.2d at 1033 ("There seems to be little doubt that
when Rippo was shocking these victims with a stun gun, he was doing so
for the purpose of causing them pain and terror and for no other purpose.
Rippo was not shocking these women with a stun gun for the purpose of
killing them but, rather, it would appear, with a purely 'sadistic
purpose.'").
Rippo complains that the other two aggravating circumstances
are invalid for two reasons. First, he argues that the prior conviction
related to both aggravating circumstances was the product of an invalid
guilty plea. Based on our review of the record, we disagree that his guilty
plea was involuntarily or unknowingly entered. Second, relying on Roper
v. Simmons, 543 U.S. 551 (2005), Rippo argues that the prior conviction
could not be used as an aggravating circumstance for death-penalty
eligibility because he was only 16 years old at the time of the prior offense.
We reject this argument because Roper only addresses whether a
defendant can be sentenced to death for a capital offense committed before
age 18; it does not address whether a conviction for an offense that was
committed before the defendant was 18 can be used to make the defendant
death-eligible on another offense committed after the defendant turned 18.
Here, the murders were committed a week before Rippo's 27th birthday.
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The a ggravating circumstances are valid, and Rippo has not demonstrated
that he is ineligible for the death penalty.32
Having determined that Rippo is not entitled to relief, we
affirm the order of the district court.
CaC
■ TCt
Parraguir:CS 1
k-Lt ceatn J.
Hardesty
J.
Saitta
Gibbo
J.
Pickering
32Rippo ar gues that postconviction counsel was ineffective for not
challenging the a ggravating circumstances as invalid. We conclude that
his claim lacks merit and therefore the district court did not err by
denying this claim.
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CHERRY, J., concurring in part and dissenting in part:
I concur in the majority's decision that when postconviction
counsel is appointed pursuant to NRS 34.820, a challenge to that counsel's
representation becomes available upon the conclusion of the first
postconviction proceeding. I further agree with the majority's adoption of
the two-prong test in Strickland v. Washington, 466 U.S. 668 (1984), to
evaluate claims of ineffective assistance of postconviction counsel.
However, I disagree with the majority's decision that a petition raising a
claim of ineffective assistance of first postconviction counsel is filed within
a reasonable time if it is filed within one year after entry of the district
court's order disposing of the prior petition or, if a timely appeal is taken
from the district court's order, within one year after our issuance of
remittitur. I would hold that the reasonableness of any delay should be
assessed on a case-by-case basis considering the totality of the
circumstances, which may justify a delay of more than one year. I further
dissent from the majority's conclusion that Rippo failed to show that he is
entitled to an evidentiary hearing on his claims that postconviction
counsel was ineffective for not raising a claim of prosecutorial misconduct
and an ineffective-assistance claim based on trial counsel's failure to
present additional mitigation evidence. Therefore, I would reverse and
remand this matter to the district court for an evidentiary hearing on
these claims.
Rippo complains that postconviction counsel was ineffective in
failing to investigate and present evidence that the State knowingly
presented perjured testimony at trial. Two of the State's witnesses, David
Levine and James Ison, have provided declarations stating that the police
provided details about the murders that Rippo had not disclosed to them.
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The majority acknowledges that the statements in the declarations could
have been used to impeach Levine and Ison but concludes that this was
not enough to make a difference. In my view, an evidentiary hearing is
necessary before that determination can be made. While Levine and Ison
did not recant their testimony that Hippo admitted his involvement in the
murders, their statements certainly impeached aspects of their testimony
and, perhaps more importantly, raise serious concerns about prosecutorial
misconduct. See People v. Savvides, 136 N.E.2d 853, 854 (N.Y. 1956) ("It is
of no consequence that the falsehood bore upon the witnessIs] credibility
rather than directly upon defendant's guilt. A lie is a lie, no matter what
its subject, and, if it is in any way relevant to the case, the district
attorney has the responsibility and duty to correct what he knows to be
false and elicit the truth."). The implications of the matters raised in the
declarations deserve closer examination that an evidentiary hearing will
provide.
Rippo also contends that postconviction counsel was
ineffective for not challenging trial counsel's failure to present mitigating
evidence of the abuse he suffered at the hands of his stepfather, James
Anzini, and his neuropsychological impairment. The new evidence paints
a picture of emotional and physical abuse to which the jury was not privy.
Anzini played games with Rippo and his siblings for the sole purpose of
belittling and harassing them Anzini scared the children by pretending
that he was going to drive the car they were riding in over a cliff. He hit
Rippo and his siblings with books and bamboo sticks. Anzini treated
Rippo worse than any of his children or stepchildren. On one occasion,
after Rippo suffered a beating from a neighbor boy, Anzini ordered him to
"go back and finish the job." Rippo returned to fight the boy and was
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badly hurt. In another incident, Anzini flew into a rage when Rippo
accidently broke an inexpensive household item. Anzini punished Rippo
for minor infractions by confining him to his room for hours without access
to a bathroom and then beating him when he wet his pants. While the
family was living in Moab, Utah, Anzini punished Rippo by making him
stand outside when the temperature was over 100 degrees. Rippo's
mother, Carole Anzini, also contributed to his troubled childhood. She
was neglectful in her care of him, and when he was seven years old, she
took Rippo and his siblings from their home in New York without
permission from the children's father, Domiano Campanelli. Campanelli
knew nothing about his children's whereabouts until ten years later. The
new mitigation evidence strongly suggests that Campanelli was a kind
and caring father who loved his children very much. Because of Carole's
actions, Rippo was robbed of a loving relationship with his father for a
decade.
In addition, Rippo provided an evaluation from psychologist
Jonathan Mack. Dr. Mack concluded that Rippo suffers from Attention
Deficit Hyperactivity Disorder, which, along with his unstable upbringing,
contributed to his early drug use. Further, Rippo sustained significant
psychosocial trauma during his childhood, which caused "a chronic free
floating anxiety which led to the development of his obsessive-compulsive
and drug addictive tendencies" as a means of controlling his anxiety. Dr.
Mack observed that Rippo's overall neurological and psychological
assessment reveals that he has significant problems with attention,
impulse control, and short-term memory that could have been identified
by competent neurological testing prior to trial.
The mitigation evidence presented at trial did little in the way
of providing the jury any insight into Rippo's character, background, and
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conduct. Had the new mitigation evidence been presented, it could have
provided that insight and swayed the jury to choose imprisonment rather
than death. See Penry v. Lynaugh, 492 U.S. 302, 328 (1989) ("Rather than
creating the risk of an unguided emotional response, full consideration of
evidence that mitigates against the death penalty is essential if the jury is
to give a reasoned moral response to the defendant's background,
character, and crime." (citations and internal quotation marks omitted)),
abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002);
Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir. 2003) ("Evidence
regarding social background and mental health is significant, as there is a
'belief, long held by this society, that defendants who commit criminal acts
that are attributable to a disadvantaged background or to emotional and
mental problems, may be less culpable than defendants who have no such
excuse." (quoting Boyde v. California, 494 U.S. 370, 382 (1990))); Jesse
Chang, Frontloading Mitigation: The "Legal" and the "Human" in Death
Penalty Cases, 35 Law & Soc. Inquiry 39, 46 (2010) ("The purpose of
mitigating evidence is to provide the jury with a basis for sentencing the
individual defendant to life imprisonment rather than to death .. . . The
challenge facing defense counsel is to present mitigating evidence that
explains the defendant's commission of the crime. This requires providing
the jury with an empathy provoking way of understanding the defendant
and his conduct."). While the majority casually dismisses this new
mitigation evidence, concluding that it would not have made a difference,
Rippo has produced sufficient support entitling him to an evidentiary
hearing to prove his allegations that postconviction counsel provided
ineffective assistance by failing to investigate and challenge trial counsel's
performance in the presentation of mitigating circumstances. Should he
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be successful, he may secure a new penalty hearing. Justice demands that
he receive that opportunity.
J.
Cherry
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