Weber (Timmy) v. State (Death Penalty-Pc), 62473

Background

Timmy Weber was convicted in 2003 of multiple felonies including two first‑degree murders; jury returned death sentence for A.G. and life without parole for Kim. This court affirmed on direct appeal.
Weber filed a first postconviction habeas petition; it was denied and that denial was subsequently affirmed.
He filed a second postconviction petition nearly six years after remittitur; district court denied it as untimely and successive.
Weber claimed his first postconviction counsel was ineffective for omitting numerous trial‑ and appellate‑counsel ineffective‑assistance claims, and he invoked that alleged ineffectiveness as cause to overcome procedural bars.
The Nevada Supreme Court reviewed whether the omitted claims had merit such that postconviction counsel’s failure could constitute cause and prejudice; it affirmed denial in large part but remanded for an evidentiary hearing limited to the claim concerning omitted appellate challenge to the burglary convictions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness / successive petition procedural bar	Weber: second petition timely as postconviction‑counsel ineffectiveness is cause and was raised within a reasonable time	State: petition untimely under NRS 34.726 and successive under NRS 34.810	Court: Petition was generally time‑barred and successive, but Weber timely raised postconviction‑counsel claim; must still show merit to overcome bars
Were omissions by first postconviction counsel (trial‑counsel claims) deficient and prejudicial?	Weber: counsel omitted viable jury‑selection, guilt‑phase, and mitigation/penalty‑phase claims that would have succeeded	State: omitted claims were speculative, lacking record support, or non‑meritorious; many defenses were strategic	Court: Majority—omitted trial‑counsel claims lacked sufficient merit or prejudice; postconviction counsel not ineffective for these omissions
Were omissions by first postconviction counsel (appellate‑counsel claims) deficient and prejudicial?	Weber: appellate counsel failed to raise many substantial instructional, sufficiency, and aggravator challenges on direct appeal	State: most appellate arguments lacked merit under governing precedent; many issues had been repeatedly rejected	Court: Majority—most appellate‑counsel omission claims were nonmeritorious so postconviction counsel was not ineffective in omitting them
Burglary convictions/aggravator issue and need for hearing	Weber: appellate counsel should have challenged burglary convictions/agravator; postconviction counsel should have raised that appellate omission	State: evidence suggested Weber had possessory/right to enter; any successful challenge would not likely change death sentence	Held: Court reverses in part and REMANDS for an evidentiary hearing limited to whether appellate counsel should have challenged burglary convictions (possible merit). Even if successful, elimination of that aggravator would not likely change the death sentence

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing deficient performance and prejudice test for ineffective assistance of counsel)
Crump v. Warden, 113 Nev. 293 (1997) (Nevada recognition that first postconviction counsel is statutorily appointed and must be effective; ineffectiveness can constitute cause)
Wiggins v. Smith, 539 U.S. 510 (2003) (counsel’s duty to investigate mitigation evidence)
Jackson v. Virginia, 443 U.S. 307 (sufficiency‑of‑evidence standard)
Clem v. State, 104 Nev. 351 (1988) (Nevada law on kidnapping and physical restraint)
Byford v. State, 116 Nev. 215 (2000) (upholding certain jury instructions)
Hernandez v. State, 118 Nev. 513 (2002) (definition of deadly weapon upheld)
McConnell v. State, 125 Nev. 243 (2009) (weighing aggravators and mitigators not governed by beyond‑a‑reasonable‑doubt standard)
Cullen v. Pinholster, 563 U.S. 170 (2011) (mitigation evidence can be a "two‑edged sword")
Kansas v. Carr, 136 S. Ct. 633 (2016) (commentary on mitigation, mercy, and jury assessment)