Rippo v. State

• Citation: 368 P.3d 729
• Decision Date: 25 February 2016
• Docket Number: No. 53626.,53626.
• Parties: Michael Damon RIPPO, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

368 P.3d 729

Michael Damon RIPPO, Appellant,

v.The STATE of Nevada, Respondent.

No. 53626.

Supreme Court of Nevada.

Feb. 25, 2016.

Rene L. Valladares, Federal Public Defender, and David Anthonyand 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 PARRAGUIRRE, C.J., HARDESTY, DOUGLAS, CHERRY, SAITTA, GIBBONSand 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 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 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 strangulation and that Jacobson died from asphyxiationdue 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 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, 113 Nev. at 1265, 946 P.2d at 1033. The remittitur issued on November 3, 1998.

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, 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 Rippo'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.

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.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 Rippo's motion for discovery as moot. This appeal followed.

DISCUSSION

The petition at issue raised claims for relief based on trial error, prosecutorial misconduct and failure to disclose...