423 P.3d 1084
Nev.2018Background
- Michael Rippo was convicted of two first-degree murders (1992) and sentenced to death; convictions and sentences affirmed on direct appeal; postconviction proceedings followed.
- Rippo filed a first, counseled postconviction petition (statutorily appointed counsel under NRS 34.820); that petition was denied and the denial affirmed (remittitur Jan 16, 2007).
- Rippo filed a second, successive and untimely postconviction petition raising 22 grounds, including judicial-bias, Brady/prosecutorial-misconduct, and claims of ineffective assistance of trial, appellate, and first postconviction counsel.
- The district court dismissed the second petition as procedurally barred (NRS 34.726 time bar; NRS 34.810 waiver/successive rules); this Court initially affirmed but the U.S. Supreme Court granted certiorari, vacated, and remanded on the judicial-bias issue (Rippo IV).
- On remand this Court (majority) re-adopted most prior reasoning, held that Rippo’s new judicial-bias allegations and related claim that first postconviction counsel was ineffective require discovery and an evidentiary hearing, but rejected most other claims as procedurally barred or meritless.
Issues
| Issue | Plaintiff's Argument (Rippo) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Availability/timeliness of ineffective-assistance-of-postconviction-counsel claims | Such claims become available only after conclusion of the postconviction proceeding; Rippo filed within a year of remittitur so timely | State argued shorter timelines may be reasonable case-by-case and sought stricter scrutiny | Court: claim becomes available at conclusion of the postconviction proceeding; filing within one year of district-court order or remittitur is a reasonable bright-line rule, so Rippo met timing requirement |
| Standard to evaluate ineffective assistance of postconviction counsel | Apply Strickland two-prong test where counsel is statutorily appointed (NRS 34.820) | No constitutional right to postconviction counsel, but Strickland is workable standard | Court: adopt Strickland to evaluate postconviction counsel where appointment is statutorily mandated |
| Whether new evidence overcomes law-of-the-case and requires relief on judicial-bias claim | New evidence (documents/testimony from federal prosecutions) shows judge and State concealed material facts; risk of bias may be constitutionally intolerable per Rippo IV; first postconviction counsel failed to investigate | State relied on law-of-the-case and prior rulings rejecting bias; argued no adequate new evidence to warrant rehearing | Court: new evidence is substantially different; because bias inquiry under Rippo IV focuses on intolerable risk of bias, an evidentiary hearing is required; also possible ineffective assistance by first postconviction counsel warrants hearing |
| Brady / prosecutorial-misconduct and other claims | Withheld impeachment/favorable-disposition evidence (witness deals), false testimony, improper argument, failure to present mitigation; postconviction counsel ineffective for not raising these | State: allegations speculative, public records not suppressed, not material, law-of-the-case, and many claims untimely/successive; insufficient to show prejudice | Court: most prosecutorial-misconduct/Brady claims lack merit or are speculative and procedurally barred; only the judicial-bias claim (and related postconviction-counsel ineffectiveness) survives for hearing |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance standard)
- Martinez v. Ryan, 566 U.S. 1 (recognizes narrow role of postconviction counsel ineffectiveness to excuse procedural default in federal habeas context)
- Padilla v. Kentucky, 559 U.S. 356 (discusses difficulty of proving Strickland prejudice)
- Napue v. Illinois, 360 U.S. 264 (prosecutor must correct false testimony; materiality standard)
- Giglio v. United States, 405 U.S. 150 (prosecution must disclose deals/impeachment material with witnesses)
- Kyles v. Whitley, 514 U.S. 419 (Brady materiality inquiry—whether nondisclosure undermines confidence in outcome)
- Williams v. Taylor, 529 U.S. 362 (duty to investigate mitigation in capital cases)
- Wiggins v. Smith, 539 U.S. 510 (prejudice in penalty-phase ineffective-assistance claims; reasonable probability standard)