DocketNumber: No. 53626
Citation Numbers: 423 P.3d 1084
Judges: Cherry, Hardesty, Pickering
Filed Date: 8/2/2018
Status: Precedential
Modified Date: 7/19/2022
*1090This matter is before us on remand from the United States Supreme Court. Our prior opinion in this case, Rippo v. State (Rippo III),
Applying those holdings, we concluded that although Rippo filed his petition within a reasonable time after the postconviction-counsel claims became available, those claims lacked merit and therefore he had not demonstrated good cause for an untimely petition or good cause and prejudice for a second petition. We also rejected his other allegations of good cause and prejudice. Accordingly, we determined that the district court properly denied the petition as procedurally barred and therefore affirmed.
Rippo petitioned the United States Supreme Court for certiorari. The Supreme Court granted certiorari, vacated our prior opinion, and remanded for further proceedings. Rippo v. Baker (Rippo IV), 580 U.S. ----,
*1091
Upon reconsideration of the judicial-bias claim, we conclude that an evidentiary hearing is required. Rippo has offered some evidence in support of the judicial-bias claim that is substantially different than what was available to his trial and appellate counsel and this court on direct appeal, such that the law-of-the-case doctrine may not bar further litigation of this claim. And, considering the inquiry required by the Supreme Court, the judicial-bias claim may have merit if the new allegations are true. Rippo also made sufficient allegations that prior postconviction counsel provided ineffective assistance by not investigating and reasserting the judicial-bias claim, which would if true provide good cause to excuse the procedural defaults relevant to the judicial-bias claim. We therefore conclude that an evidentiary hearing is required with respect to these issues related to the judicial-bias claim. Accordingly, we reverse the district court's order as to the first claim in the postconviction petition and remand for an evidentiary hearing consistent with this opinion. Because the Supreme Court's decision did not affect the other holdings in our prior opinion, we reproduce most of our prior opinion and once again affirm the remainder of the district court's order.
FACTS AND PROCEDURAL HISTORY
The bodies of Denise Lizzi and Lauri Jacobson were found in Jacobson's apartment on February 20, 1992. Rippo and his girlfriend, Diana Hunt, were charged in the robbery and murder of Lizzi and Jacobson.
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 *1092presented 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 incarcerated; (2) Rippo's stepfather, Robert Duncan, testified regarding Rippo's friendly behavior when living with him while on parole and asked the jury to spare Rippo's life; and (3) Rippo's sister testified that their former stepfather, James Anzini, emotionally abused Rippo and had stolen his paychecks and gambled them away, and she urged the jury to show mercy. The defense also presented a letter from Rippo's mother, who was unable to testify in person because of medical issues. She described Rippo'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 Rippo'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 Rippo when Anzini was diagnosed with terminal cancer, eventually leading up to the sexual assault committed by Rippo in 1981; and Rippo'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 I,
Rippo 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 NRS 34.820, Rippo was represented by court-appointed counsel in the postconviction proceeding. Following an evidentiary hearing, the district court denied the petition. See Rippo v. State (Rippo II),
Rippo 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.
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 NRS 34.726(1) and for failing to *1093raise 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,
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,
Rippo's allegations regarding postconviction counsel arise in two contexts. First, Rippo asserted a postconviction-counsel claim as a free-standing claim for relief from his judgment of conviction and sentence (claim 20(A), (B) ).
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 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).
*1094Here, 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)), 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,
This court has addressed ineffective assistance of postconviction counsel as cause to excuse a procedural default under NRS 34.810(l)(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.
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,
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,
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. 1097-99. 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 ,
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."
*1096Groesbeck v. Warden,
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 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,
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 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,
*1097In re Robbins,
To provide clearer boundaries, we look to NRS 34.726 for guidance. With NRS 34.726(1), the Legislature has determined that one 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. Cf. 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).
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 "[t]hat 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,
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 ,
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.
[T]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,
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,
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.
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 and prejudice to excuse the applicable procedural bars based on the ineffective assistance of postconviction counsel.
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 law-of-the-case doctrine and the procedural default under NRS 34.810(2) 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)
This claim was raised on direct appeal and rejected by this court. Rippo v. State (Rippo I),
There is nothing substantially new or different about the allegation that the trial judge should have disqualified himself because he was under federal investigation. This court held on direct appeal that "[a] federal investigation of a judge does not by itself create an appearance of impropriety sufficient to warrant disqualification." Rippo I,
In contrast, the other allegations of judicial bias were rejected on direct appeal because there was no evidence offered to support them. Rippo I,
But to reach the merits of the judicial-bias claim, Rippo also has to demonstrate good cause and actual prejudice to excuse his failure to reassert the judicial-bias claim in his first postconviction habeas petition. To that end, he asserts that prior postconviction counsel provided ineffective assistance in failing to further investigate the facts surrounding the judicial-bias claim and failing to repackage the judicial-bias claim as a trial- or appellate-counsel claim or to reassert it as a standalone claim.
We are not convinced that prior postconviction counsel was ineffective in omitting 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 ,
In contrast, it appears that the new information could have been discovered and used by prior postconviction counsel to reassert the judicial-bias claim in the first petition. We acknowledge that in most circumstances where an issue was raised at trial, in a motion for new trial, and on appeal, all to no avail, postconviction counsel's failure to reassert the issue will be perfectly reasonable considering the law-of-the-case doctrine. See generally In re Reno,
Turning to the prejudice prong of the postconviction-counsel claim, we must consider the underlying merit of the judicial-bias claim. This is where the Supreme Court's directive on review of our prior decision becomes relevant. On the merits of the judicial-bias claim, the inquiry is "whether, considering all the circumstances alleged, the risk of bias was too high to be constitutionally tolerable." Rippo IV , 580 U.S. at ----, 137 S.Ct. at 907. The answer to that question may be yes, if Rippo's allegations that the trial judge knew about the State's involvement in the federal sting operation but lied about it and falsely denied that he had any connection to Mason or his business partner to avoid implicating himself in the federal bribery investigation are true. Because the substantive claim therefore may have merit based on the new information, we conclude that discovery and an evidentiary hearing is needed to determine whether the allegations supporting the judicial-bias claim are true and, if so, whether prior postconviction counsel provided ineffective assistance by failing to investigate and re-assert the judicial-bias claim.
Prosecutorial misconduct (claims 2 and 9)
Rippo 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 ,
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,
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,
The Brady allegation involving Beaudoin is similar to those involving Sims and Christos, but where Rippo failed to allege any additional facts sufficient to establish a Brady violation related to those witnesses, Rippo has offered additional specific allegations with respect to Beaudoin. With his petition, Rippo 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 Rippo "at some point before [he] was scheduled to testify" and asked for help since he was helping the prosecution by testifying against Rippo.
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. Cf. Harris v. Lafler,
False testimony
Rippo 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 Rippo made to them while he was incarcerated pending trial in this case. Each informant testified that he had known Rippo before the murders and that Rippo 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.
Rippo 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. Rippo 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, Rippo's claim speaks more to the prosecution knowingly presenting false or misleading testimony. See Giglio v. United States ,
First, he relies on the alleged withholding of evidence by the State. Cf. State v. Bennett,
*1106United States v. Diaz,
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, 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 Ison's testimony could have affected the jury's verdict ( Giglio / Napue 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 Rippo confessed to his involvement in the murders, we agree with the district court's assessment that Rippo cannot demonstrate prejudice based on postconviction counsel's failure to raise claims related to Levine's and Ison's testimony.
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.
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.
*1107The allegations of prosecutorial misconduct that were raised and rejected on direct appeal, Rippo v. State (Rippo I),
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,
Witness intimidation
The allegation of improper witness intimidation (claim 9) was rejected by this court on direct appeal. Rippo I,
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 *1108default, Rippo asserts that postconviction counsel was ineffective for failing to raise the trial-counsel claim. We conclude that this claim is not sufficient to excuse the procedural default because Rippo 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.
Rippo 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 the reasonableness of counsel's performance is evaluated "from counsel's perspective at the time," without "the distorting effects of hindsight." Strickland v. Washington,
Rippo 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 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
Rippo also claims that postconviction counsel should have asserted an ineffective-assistance claim based on trial counsel's failure to present evidence that Rippo was sexually and physically abused by his stepfather James Anzini. At the penalty phase, trial counsel presented one witness who testified about Rippo's childhood and upbringing, his sister Stacie. She described Rippo 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 Rippo's allowance and paychecks to support his gambling habit. He frequently pushed Rippo around and told him that he would never amount to anything, and he degraded women in front of Rippo. So trial counsel did present some evidence at the penalty phase on the *1109topic of Rippo's childhood and upbringing. Rippo 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, Rippo 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 (Rippo'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 Rippo; and was extremely aggressive when he played board games with the children, calling Rippo 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 [Rippo] that 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 Rippo, but they suspected that Anzini had physically abused Rippo based on his general character for such abuse or because they saw bruises on Rippo or his sisters that they felt were not sufficiently explained. Many of the declarants also suggested that Rippo 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 Rippo.
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,
Here, Stacie's declaration indicates that trial counsel met with her and other unidentified members of Rippo'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 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 Rippo, 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 *1110penalty 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 about the abuse or identified any family members who could testify to the abuse. See Strickland,
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,
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 *1111they 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,
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 issue 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-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,
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,
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 *1112procedural default of this alleged trial error under NRS 34.726(1) and NRS 34.810, Rippo 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 Rippo has not identified a discovery motion or other request for the evaluation that was denied by the trial court, he has 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.
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 ,
Rippo argues that insufficient evidence supports the torture aggravating circumstance, a claim we rejected on direct appeal. See Rippo v. State (Rippo I),
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,
Having determined that Rippo is entitled to an evidentiary hearing as to the first claim in his petition but that his other claims lack merit, we affirm in part, reverse in part, and remand to the district court for further proceedings consistent with this opinion.
We Concur:
Douglas, C.J.
Gibbons, J.
Parraguirre, J.
The facts are set forth in greater detail in our opinion on direct appeal from the judgment of conviction. Rippo v. State (Rippo I),
Hunt testified 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.
The petition was accompanied by approximately 17 volumes of exhibits.
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) ).
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 NRS 34.800(2), we decline to address it because 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."
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.6. See State v. Riker,
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,
This procedural 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 );
The 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,
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,
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,
For examples of how the prejudice inquiry varies, see Missouri v. Frye,
The statutes in South Dakota have been amended since Jackson was decided to preclude relief based on the ineffectiveness of postconviction counsel.
Other 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,
Brady v. Maryland ,
This court previously observed in Lozada v. State,
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 ,
To the 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.
Mason was Denise Lizzi's boyfriend, and his name was on a credit card that Hunt found in Rippo's wallet after the murders.
We agree with the Ninth Circuit's observation that when a judge has been indicted on criminal charges "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." United States v. Jaramillo,
Included 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.
The petition below made summary allegations (claim 2, ¶¶ 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,
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.
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.
The State 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.
Beaudoin also states in the declaration that he believes that Rippo "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."
We recognize 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 significance that undermining them would also undermine our confidence in the jury's verdict.
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.
Rippo's appellate 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 citation therefore does not appear to support the characterization of Hill as a "career criminal informant."
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 claim.
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 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.
Rippo challenged 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.
Rippo argues that postconviction counsel was ineffective for not challenging the aggravating circumstances as invalid. We conclude that his claim lacks merit and therefore the district court did not err by denying this claim.