423 P.3d 1084 (Nev. 2018), 53626, Rippo v. State

Docket Nº:53626
Citation:423 P.3d 1084, 134 Nev.Adv.Op. 53
Opinion Judge:HARDESTY, J.
Party Name:Michael Damon RIPPO, Appellant, v. The STATE of Nevada, Respondent.
Attorney: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.
Judge Panel:We Concur: Douglas, C.J., Gibbons, J., Parraguirre, J. PICKERING, J., concurring in part and dissenting in part: CHERRY, J., concurring in part and dissenting in part:
Case Date:August 02, 2018
Court:Supreme Court of Nevada
 
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Page 1084

423 P.3d 1084 (Nev. 2018)

134 Nev.Adv.Op. 53

Michael Damon RIPPO, Appellant,

v.

The STATE of Nevada, Respondent.

No. 53626

Supreme Court of Nevada

August 2, 2018

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Appeal from the denial of a postconviction petition for a writ of habeas corpus in a death penalty case. Eighth Judicial District Court, Clark County; David Wall, Judge.

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.1

BEFORE THE COURT EN BANC.2

OPINION

HARDESTY, J.

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This matter is before us on remand from the United States Supreme Court. Our prior opinion in this case, Rippo v. State (Rippo III), 132 Nev. 95, 368 P.3d 729 (2016), affirmed a district court order denying appellant Michael Damon Rippo’s second postconviction petition for a writ of habeas corpus, which challenged his conviction for two first-degree murders and related felony offenses and his death sentences. The petition was both untimely and successive. Our opinion focused primarily on Rippo’s argument that he had shown good cause and prejudice to excuse the procedural bars to his petition based on the alleged ineffective assistance of his first postconviction counsel. We reiterated the holdings from this court’s decisions in Crump v. Warden, 113 Nev. 293, 934 P.2d 247 (1997), and McKague v. Warden, 112 Nev. 159, 912 P.2d 255 (1996), 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 but that the ineffective-assistance claim must not itself be procedurally barred, see Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). We then addressed 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 held 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 held 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. Our prior opinion also took the 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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. __, 137 S.Ct. 905, 197 L.Ed.2d 167 (2017). The Supreme Court’s decision touched on only one of the many issues discussed in our prior opinion: Rippo’s judicial bias claim. As to that issue, the Supreme Court determined that we applied the wrong legal standard by focusing on whether Rippo’s allegations demonstrated actual bias rather than asking "whether, considering all the circumstances alleged, the risk of bias was too high to be constitutionally tolerable."

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Id. at __, 137 S.Ct. at 906-07. The Court then vacated our prior judgment and remanded "for further proceedings not inconsistent with this opinion." Id.

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.3 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; 4 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 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

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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...

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