                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                TIMMY JOHN WEBER,                                      No. 62473
                Appellant,
                vs.
                THE STATE OF NEVADA,
                Respondent.                                                FILED
                                                                           JUN 2 4 2016
                                                                           TRACE K. LINDEMAN
                                                                      CLERK   OF SUPREME COURT

                                                                      BY   S•
                                                                             DEJTY CLERK




                                   ORDER AFFIRMING IN PART,
                               REVERSING IN PART AND REMANDING
                            This is an appeal from a district court order denying a
                postconviction petition for a writ of habeas corpus in a death penalty case.
                Eighth Judicial District Court, Clark County; Douglas Smith, Judge.
                            Appellant Timmy John Weber lived in Las Vegas with his
                girlfriend Kim, her two sons (17-year-old C.G. and 15-year-old A.G.), and
                her daughter (14-year-old M.G.). Although he was Kim's boyfriend, Weber
                treated M.G. more like his girlfriend. He started to abuse M.G. sexually
                and took photographs documenting the abuse. That abuse escalated on
                the morning of April 4, 2002.
                            That morning Weber and M.G. were home alone; C.G. had
                spent the night at his friend Joey's apartment, Kim had gone to visit one
                of her friends, and A.G. had left to go skateboarding. Weber and M.G. had
                argued the previous night after a male friend called M.G., and she was
                still upset the next morning. After she refused Weber's request that she
                give him a hug and told him that she wanted to see her boyfriend, he
                locked the front door to the house, pinned M.G. on the couch, and duct-

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                 taped her hands together behind her back. When she screamed, Weber
                 told her to shut up, put duct tape around her head, and forced her into a
                 bedroom, throwing her on the bedS and taping each foot individually and
                 taping her feet to her hands. Weber left, threatening to kill M.G. if she
                 attempted to escape. About 45 minutes later, Weber returned and
                 sexually assaulted her. After allowing M.G. to shower, he put socks over
                 her hands, duct-taped them, and then duct-taped her legs together. He
                 also duct-taped her head and body to the ladder of her bunk bed so that
                 she could not move. After telling M.G. that he was going to check on her
                 15-year-old brother A.G., Weber turned up the volume on a television set,
                 covered her with a blanket, and left the room.
                             Meanwhile, A.G. had met up with C.G. and was hanging out
                 with him at Joey's apartment. About two hours after the assault on
                 A.G. and Joey saw Weber sitting in his car near Joey's apartment. At the
                 time the boys were returning to the apartment after going to get snacks.
                 A.G. went to speak with Weber. When he returned to the apartment, he
                 told Joey that Weber said he had to go check in with Kim. A.G. left the
                 apartment and got into Weber's car.
                             About thirty minutes later, C.G. woke up from a nap and he
                 too went home. But when he got there, the doors were locked and he could
                 not get in through any windows. Hearing a loud television and a muffled
                 scream from M.G.'s room, he went back to Joey's apartment to get help.
                 When C.G. returned with a friend, they heard screams. C.G. broke a
                 window, entered the house, and let his friend in through the front door.
                 They found M.G. taped up in her room. Upon removing the tape over her
                 mouth, they learned of Weber's attack. Fearful that Weber would return,
                 they left the house and headed to Joey's apartment. While C.G. went to a

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                nearby gas station to call the police, Weber drove up to Joey's apartment
                building and asked if anyone had seen M.G. After Weber drove away,
                C.G.'s friend flagged down a passing patrol car and M.G. told the officer
                about Weber's assault on her. The officer took C.G. and M.G. home.
                While conducting a protective sweep of the home, the officer discovered
                Kim's and A.G.'s bodies.
                             Kim, who had left her friend's home a little before 11:00 a.m.
                (about 90 minutes before Weber sexually assaulted M.G. in her room), was
                found stuffed in a rubber container located in her bedroom closet. She was
                naked. Her neck displayed a number of marks suggesting strangulation.
                She suffered two blunt force trauma wounds on the back of her head,
                causing a fractured skull. She also had bruising and scrapes on her arm
                and knees.
                             A.G. was found in his bedroom, lying face down on his bed.
                His head was covered with a black plastic bag that was secured around his
                neck. His arms, hands, and wrists were bound behind his back with duct
                tape, and his ankles were bound together with duct tape. A white t-shirt
                was stuffed inside his mouth, and duct tape was wrapped around his head,
                covering his eyes and mouth. Two 45-pound weights had been placed on
                his upper and lower back, and two 50-pound weights had been placed on
                his legs. A.G. died from mechanical asphyxia, suffocation, and
                compression and restriction of his torso. Tears in the duct tape around
                A.G.'s hands indicated that he struggled to free himself and the presence
                of blood and vomit in the bag around his head indicated that A.G suffered
                a very slow death.
                             Weber fled Las Vegas after the murders but returned before
                the funeral services for Kim and A.G. on April 14, 2002. Before the

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                      services that day, C.G. returned to the family home with William Froman,
                      C.G. and M.G.'s temporary guardian, to retrieve a few items. Immediately
                      upon entering the home, Froman was attacked by Weber, who struck
                      Froman on the head with a baseball bat, fracturing his skull. Weber also
                      hit C.G., drawing blood. Weber fled but was captured about two weeks
                      later in a trailer home in Las Vegas.
                                  A jury convicted Weber of sexual assault on a child under 14
                      (Count 1), sexual assault on a child under 16 (Counts 2, 3, and 11), open or
                      gross lewdness (Counts 4, 5, and 6), use of a minor in producing
                      pornography (Count 7), possession of a visual presentation depicting
                      sexual conduct of a person under 16 (Count 8), burglary (Counts 9 and 15),
                      first-degree kidnapping (Counts 10 and 13), first-degree murder with the
                      use of a deadly weapon (Counts 12 and 14), and attempted murder with
                      the use of a deadly weapon (Counts 16 and 17).
                                  At the conclusion of the penalty hearing, the jury found 13
                      circumstances aggravated A.G.'s murder, all of which stemmed from the
                      incidents on April 4 and 14—(1) sexual assault on a child under the age of
                      14; (2), (3), (4) sexual assault on a child under the age of 16; (5) first-
                      degree kidnapping of M.G.; (6) first-degree kidnapping of A.G; (7)
                      attempted murder of C.G. with the use of a deadly weapon; (8) attempted
                      murder of Froman with the use of a deadly weapon; (9) the murder was
                      committed during the perpetration of a burglary; (10), (11) the first-degree
                      kidnapping of A.G. and M.G.; (12) the murder involved torture or
                      mutilation; and (13) Weber had been convicted in the immediate
                      proceeding of more than one offense of murder. At least one juror found
                      the following mitigating circumstances; (1) Weber had an unstable
                      upbringing, (2) his family loved him, (3) his family would suffer as a result

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                of the imposition of a death sentence, (4) he had a history of good behavior
                while incarcerated at the Clark County Detention Center, (5) he had a
                history of good behavior while incarcerated at the Nevada State Prison, (6)
                he had no prior history of crimes of violence, (7) his age at the time of his
                prior criminal history, (8) his current age, (9) he did not resist arrest, (10)
                he had a normal upbringing, (11) his lack of financial stability, (12) the
                State's witnesses did not request death, and (13) his display of emotion
                during the penalty phase. Concluding that the aggravating circumstances
                outweighed the mitigating circumstances, the jury sentenced Weber to
                death for A.G.'s murder. With the exception of the torture aggravating
                circumstance, the jury found the same circumstances aggravated Kim's
                murder but sentenced Weber to a term of life in prison without the
                possibility of parole. On appeal, this court affirmed the judgment of
                conviction and death sentence. Weber v. State, 121 Nev. 554, 119 P.3d 107
                (2005).
                             Weber filed a pro se postconviction petition for a writ of
                habeas corpus on March 22, 2006, which was supplemented by counsel on
                February 27, 2007. The district court denied the petition on November 7,
                2007, without conducting an evidentiary hearing. This court affirmed the
                district court's judgment on July 20, 2010, and remittitur issued on
                October 18, 2010. Weber v. State, Docket No. 50613 (Order of Affirmance,
                July 20, 2010). Weber filed a second postconviction petition on September
                22, 2011, and an amended petition on March 12, 2012. The district court
                denied the petition on December 10, 2012, without conducting an
                evidentiary hearing. This appeal followed.
                             Weber argues that the district court erroneously denied his
                second petition as procedurally barred without conducting an evidentiary

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                 hearing. Because he filed the petition almost six years after this court
                 issued its remittitur in his direct appeal, the petition was untimely under
                 NRS 34.726(1). The petition was also successive and therefore
                 procedurally barred pursuant to NRS 34.810(1)(b)(2). As cause to
                 overcome the procedural default rules, Weber contends that his first
                 postconviction counsel was ineffective for failing to raise several claims of
                 ineffective assistance of trial and appellate counsel.
                 Post conviction counsel
                             Because Weber's first postconviction counsel was appointed
                 pursuant to a statutory mandate, NRS 34.820(1), Weber was entitled to
                 effective assistance of that counsel as a matter of state law and a
                 meritorious claim that postconviction counsel provided ineffective
                 assistance may establish cause under NRS 34.810(1)(b) for raising new
                 claims in a second postconviction proceeding.    Crump v. Warden, 113 Nev.
                 293, 304-05, 934 P.2d 247, 253-54 (1997); see also Rippo v. State, 132 Nev.,
                 Adv. Op. 11, P.3d (2016). But the postconviction-counsel claim
                 must not be procedurally defaulted.        Hathaway v. State, 119 Nev. 248,
                 252, 71 P.3d 503, 506 (2003). Here, the postconviction-counsel claim is
                 subject to the time limit set forth in NRS 34.726(1), State v. Eighth
                 Judicial Dist. Court (Riker), 121 Nev. 225, 235, 112 P.3d 1070, 1077
                 (2005), so the postconviction-counsel claim had to be raised within a
                 reasonable time after it became available, Hathaway, 119 Nev. at 252-53,
                 71 P.3d at 506. We conclude that Weber filed his petition asserting the
                 postconviction-counsel claims as good cause within a reasonable time as
                 the petition was filed within one year after this court issued its remittitur
                 in the first postconviction appeal. Rippo, 132 Nev., Adv. Op. 11, P.3d



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                at    . Weber must still show that his postconviction claims have merit to
                overcome the procedural bars. 1
                            Weber argues that postconviction counsel was ineffective for
                omitting a variety of challenges to the effectiveness of trial and appellate
                counsel. To establish that postconviction counsel was ineffective, Weber
                must demonstrate both deficient performance (that counsel's performance
                fell below an objective standard of reasonableness) and that counsel's
                performance prejudiced him in the prior habeas proceeding (that the
                outcome of that proceeding would have been different but for counsel's
                deficient performance). Id. at ; see also Crump, 113 Nev. at 304 & n.6,
                934 P.2d at 254 & n.6 (indicating that test set forth in Strickland v.
                Washington, 466 U.S. 668 (1984) would be used to evaluate postconviction
                counsel's assistance) Where postconviction counsel's alleged
                ineffectiveness is based on omitted claims regarding ineffective assistance
                of trial and/or appellate counsel, the merit of the postconviction.-counsel
                claim generally is dependent on the merits of the omitted trial- and
                appellate-counsel claims.    See Rippo, 132 Nev., Adv. Op. 11,          P.3d
                at    . The same two-part test set forth above applies to the trial- and


                       'In addition to the procedural bars in NRS 34.726 and NRS 34.810,
                the statutory laches bar under NRS 34.800 also applies because the State
                pleaded it below. See NRS 34.800(2) (requiring that State specifically
                plead laches). The district court determined that the petition was subject
                to laches and the rebuttable presumption of prejudice. Weber does not
                expressly challenge that decision in his appellate briefs even though the
                State addresses NRS 34.800 in its answering brief. As a result of Weber's
                omission, we could have summarily affirmed the district court's decision
                based on NRS 34.800. Weber's counsel should be mindful to avoid similar
                omissions in the future.



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                appellate-counsel claims.    Strickland, 466 U.S. at 687-88; Warden v.
                Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in
                Strickland); Kirksey,   112 Nev. at 998, 923 P.2d at 1114 (applying
                Strickland test in context of appellate-counsel claim). Both deficiency and
                prejudice must be shown, Strickland, 466 U.S. at 697, and the petitioner
                must demonstrate the underlying facts by a preponderance of the
                evidence, Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004).
                This court gives deference to the district court's factual findings if
                supported by substantial evidence and not clearly erroneous but reviews
                the court's application of the law to those facts de novo.   Lader v. Warden,
                121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).
                      Omitted trial-counsel claims
                            Weber argues that the district court erred by denying his
                claim that postconviction counsel was ineffective for not challenging trial
                counsel's representation in three respects: jury selection, pretrial
                investigation and conduct of the guilt phase, and investigation of
                mitigation evidence and conduct of the penalty phase.
                            Jury selection
                            Weber faults postconviction counsel's failure to assert that
                trial counsel provided ineffective assistance during jury selection when
                they waived peremptory challenges and failed to meaningfully question
                potential jurors, "life-qualify" the jury, exclude jurors who could not
                consider all forms of punishment, exclude jurors who misunderstood the
                State's burden of proof and the defense's lack of any burden of proof,
                question jurors about their personal experiences that likely biased them
                against him, and adequately question the jury about pretrial publicity. To
                support his argument on appeal, Weber cites to his postconviction petition,
                where he provided a fuller explanation of these trial-counsel claims.
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                However, mere citation to the pleadings below is inappropriate, NRAP
                28(e)(2), and insufficient to meet his burden to provide cogent argument,
                Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987), that explains
                how the district court erred. Moreover, the omitted trial-counsel claims
                are speculative and not borne out by the record. Therefore, he has not
                shown that postconviction counsel was ineffective in omitting them.
                            Investigation and guilt phase
                            Weber next faults postconviction counsel for not asserting that
                trial counsel were ineffective because they failed to attack the credibility
                of Robin Thornton, M.G., and affidavits used to establish probable cause
                for the search warrants. We conclude that the suggested attacks on
                Thornton's credibility based on her drug use and criminal history and on
                M.G.'s credibility because she had not witnessed Weber's credit card fraud
                would not have convinced the trial court to grant his motion to suppress
                the evidence obtained when the search warrants were executed.
                Therefore, he has not demonstrated that prior postconviction counsel's
                omission of this trial-counsel claim was ineffective.
                            Weber also faults postconviction counsel for not asserting that
                trial counsel were ineffective because they based the allocation of
                resources to his case on the results of a polygraph test that counsel
                required him to take. Even assuming that the underlying factual
                allegation is true, he does not point to any course of action that trial
                counsel did not undertake due to the results of his polygraph. As he
                established no basis for this challenge to trial counsel's performance, he
                has not demonstrated that postconviction counsel was ineffective for not
                raising this claim.
                            Weber further faults postconviction counsel for not asserting
                that Weber likely would not have been convicted of first-degree murder
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                had trial counsel investigated and presented evidence of his brain damage.
                As support, he points to an evaluation by neuropsychologist Dr. Ruben
                Gur that indicates he suffered from brain damage. Although the
                evaluation suggests that Weber has difficulty controlling his emotions in
                situations that he perceives to be threatening, it does not demonstrate
                that he was incapable of forming the necessary intent for first-degree
                murder by premeditation or torture (the two theories alleged by the
                prosecution) and therefore the evaluation provided no basis for
                postconviction counsel to assert this trial-counsel claim. Accordingly, we
                conclude that Weber failed to show that postconviction counsel was
                ineffective in this regard.
                             In his final challenge related to the defense investigation,
                Weber faults postconviction counsel for failing to assert that trial counsel
                were ineffective in the defense theories that they presented. He takes
                issue with trial counsel's alternative-suspect theory on the ground that it
                had little evidentiary support and with trial counsel's consent defense to
                the sexual assault charges because the jurors might have considered such
                a defense repugnant. He suggests that they should have pursued a
                mental health defense. Although Weber disagrees with the defense
                theories pursued at trial, his general assertion that another theory would
                have provided a better defense is not a sufficient basis on which prior
                postconviction counsel could have asserted that trial counsel were
                ineffective. See Rios v. Rocha, 299 F.3d 796, 807 (9th Cir. 2002) ("Once
                counsel reasonably selects a defense, it is not deficient performance to fail
                to pursue alternative defenses."); Hunt v. State, 940 So. 2d 1041, 1067
                (Ala. Crim. App. 2005) r[T]he mere existence of a potential alternative
                defense theory is not enough to establish ineffective assistance based on

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                       counsel's failure to present that theory." (quoting Rosario—Dominguez v.
                       United States, 353 F. Supp. 2d 500, 513 (S.D.N.Y. 2005))). Because Weber
                       has not established a sufficient basis for the omitted trial-counsel claim,
                       he has not demonstrated that prior postconviction counsel was ineffective
                       for not raising it.
                                    Penalty-phase claims
                                    Weber argues that postconviction counsel should have alleged
                       that trial counsel were ineffective for encouraging the jury to sentence him
                       to death. Considering the challenged comments in context, trial counsel
                       did not encourage jurors to impose a death sentence; rather, they implored
                       the jury not to impose a death sentence because that sentence would not
                       bring the victims back to their family, told the jury that it had the power
                       to stop the killing in this case, and suggested that killing Weber in
                       retaliation for his actions would not compensate the victims' family for
                       their loss. Trial counsel further argued that incarcerating him forever was
                       severe punishment and entreated the jury to select that option rather than
                       death. As Weber demonstrated no basis on which prior postconviction
                       counsel could have successfully challenged trial counsels' performance in
                       this respect, we conclude that he failed to show that postconviction counsel
                       was ineffective.
                                    Mitigation
                                     Weber next argues that postconviction counsel should have
                       asserted that trial counsel provided ineffective assistance by not
                       investigating and presenting additional evidence concerning his
                       upbringing, family history, and mental illness. We are not convinced that
                       this trial-counsel claim was so strong that postconviction counsel's failure
                       to raise it fell below an objective standard of reasonableness.

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                               Strickland   acknowledges counsel's obligation to "make
                   reasonable investigations or to make a reasonable decision that makes
                   particular investigations unnecessary." 466 U.S. 668, 691 (1984); see also
                   Wiggins v. Smith, 539 U.S. 510, 521-23 (2003) (recognizing counsel's duty
                   to investigate). Preparing for a capital penalty hearing generally includes
                   a duty to thoroughly investigate a defendant's background for possible
                   mitigating evidence, see Williams v. Taylor, 529 U.S. 362, 396 (2000), but
                   "reasonable" does not mean that an investigation must be so exhaustive as
                   to uncover all conceivable mitigating evidence, see Waldrop v. Thigpen,
                   857 F. Supp. 872, 915 (N.D. Ala. 1994).
                               It is evident from the record that trial counsel investigated
                   and prepared for the penalty hearing, as several family members testified
                   about Weber's childhood and a mental health expert provided insight into
                   his upbringing as well as his personality. While the new mitigation
                   evidence presents a more robust picture of Weber's childhood and delves
                   deeper into his mental health than the mitigation case presented at trial,
                   we are not convinced that he established that counsel's investigation was
                   deficient. Several of •Weber's family members were interviewed in
                   preparation for the penalty hearing, but none of them described the level
                   of physical abuse at the hands of his parents and other relatives that he
                   now describes. Nor did any of those witnesses describe the full extent of
                   his parents' criminal activity or Weber's mother's alcohol abuse. Notably,
                   both Weber and his mother denied any history of physical or sexual abuse
                   when interviewed by the defense mental health expert who testified at
                   trial. Weber also does not assert that trial counsel had reason believe that
                   he had mental problems that required investigation or evaluation beyond
                   that provided by the expert who testified at trial—none of the witnesses

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                interviewed for trial indicated that Weber had any mental health issues
                and Weber indicated to his defense team that he had "no psychological
                profile" and that there was nothing in his background that would explain
                his actions. Given this record, it is not clear that prior postconviction
                counsel's failure to challenge trial counsels' investigation and presentation
                of mitigating evidence was ineffective.
                            Even if there were sufficient grounds for prior postconviction
                counsel to assert that trial counsel were deficient in their investigation
                and presentation of mitigation evidence, counsel still would have had to
                demonstrate prejudice. Presenting negative aspects of Weber's
                upbringing, hisS mental health, and brain damage, as opposed to or in
                addition to the mitigation evidence presented at trial showing positive and
                gentle aspects of his character, would have been risky. The jurors could
                have viewed the new evidence as mitigating, but they could have just as
                easily considered the evidence to be aggravating, showing that his
                exposure to violence, physical abuse and neglect, mental illness, and brain
                damage that coalesced into unimaginable violence made him
                unredeemable or a continuing danger.       See Cullen v. Pinholster, U.S.
                , 131 S. Ct, 1388, 1410 (2011) (observing that evidence of defendant's
                family's substance abuse problems, mental illness, and criminal history
                was "by no means clearly mitigating, as the jury might have concluded
                that [defendant] was simply beyond rehabilitation"); Atkins v. Virginia,
                536 U.S. 304, 321 (2002) (recognizing that mitigating evidence can be a
                "two-edged sword" that juries might find shows future dangerousness); see
                also Kansas v. Carr, U.S. , 136 S. Ct. 633, 642 (2016) ("Whether
                mitigation exists . . . is largely a judgment call (or perhaps a value call);
                what one juror might consider mitigating another might not."). Although

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                 some of the new mitigating evidence suggests that Weber was
                 nonaggressive by nature but, due to his traumatic upbringing, mental
                 illness, and brain damage, he reacted violently in situations where he was
                 frightened or threatened, the circumstances of the offenses at issue here
                 do not suggest a frightening or threatening situation. For example, the
                 evidence suggested that Weber sought out A.G., bringing him back to the
                 home for no purpose other than to kill him in a manner that inflicted a
                 great deal of pain and suffering. Under the circumstances, we conclude
                 that the new mitigation evidence would not have altered the outcome of
                 the penalty hearing. Thus, for this reason as well, we conclude that he
                 has not demonstrated that postconviction counsel was ineffective for not
                 challenging trial counsel's performance in this regard. 2
                             Other matters
                             Weber also argues that postconviction counsel should have
                 asserted that trial counsel were ineffective for not objecting "to the
                 numerous unlawful and erroneous aggravating circumstances, jury
                 instructions and prosecutorial misconduct that pervaded the penalty


                        Weber complains that postconviction counsel should have asserted
                 that trial counsel inadequately prepared the mental health expert for
                 trial However, postconviction counsel raised a substantially similar
                 claim, challenging trial counsel's reliance on the expert because the expert
                 failed to perform a proper evaluation and was unable to offer a
                 psychological opinion explaining why Weber committed the offenses.
                 Weber v. State, Docket No. 50613 (Order of Affirmance July 20, 2010), at 5-
                 6. We conclude that this claim is barred by the law-of-the-case doctrine,
                 see Hall v. State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975) ("The doctrine
                 of the law of the case cannot be avoided by a more detailed and precisely
                 focused argument subsequently made after reflection upon the previous
                 proceedings."), and therefore no relief is warranted.



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                phase hearing as alleged" and that trial counsel ineffectively examined
                witnesses, ineffectively cross-examined the prosecution's forensic expert,
                and failed to object to the improper admission of his prior convictions.
                These claims are not supported by cogent argument but only by citations
                to his postconviction petition, and therefore we decline to address them.
                See Maresca, 103 Nev. at 673, 748 P.2d at 6.
                      Omitted appellate-counsel claims
                            Weber argues that the district court erred by denying his
                claims that postconviction counsel was ineffective for not challenging
                appellate counsel's failure to raise a number of issues on direct appea1. 3
                            Jury selection matters
                            Weber argues that postconviction counsel should have
                challenged appellate counsel's failure to argue that: (1) pretrial publicity
                rendered his trial unfair, (2) the trial court should have excused several
                potential jurors who indicated that they had already determined his guilt,
                (3) the trial court should have excused four seated jurors who indicated
                that they believed that a defendant had an obligation to establish his
                innocence and five jurors who were predisposed to the death penalty, and



                      3We   do not address several of Weber's claims that postconviction
                counsel should have asserted that appellate counsel was ineffective
                because he failed to present cogent argument. Maresca, 103 Nev. at 673,
                748 P.2d at 6. Those claims relate to appellate counsel's failure to
                challenge his convictions and death sentence as invalid because the tenure
                of judges of the Nevada state district courts and the Justices of this court
                are dependent upon popularly contested elections, failure to raise issues
                identified as claims 18, 25, and 27 in his postconviction petition, and
                failure to raise unidentified instances of prosecutorial misconduct during
                arguments in the guilt and penalty phases of the trial.



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                  (4) the trial court should have excused several seated jurors because they
                  or their family members had been the victim of some sort of sexually-
                  related incident. Because he has not shown that any of the jurors were
                  unfair or biased for any of the reasons he suggests, he has not established
                  viable appellate issues that were unreasonably omitted by appellate
                  counsel And, as a result, he has not established that postconviction
                  counsel was ineffective for omitting these appellate-counsel claims. 4
                              Weber further contends that postconviction counsel should
                  have asserted that appellate counsel was ineffective for not arguing that
                  the trial court erred in excusing three death scrupled veniremembers.
                  Each of the three veniremembers were properly excused from the venire
                  because they expressed views against the death penalty that would have
                  prevented or substantially impaired the performance of their duties as
                  jurors. See Lockhart v. McCree, 476 U.S. 162, 165 (1986); NRS 175.036(1).
                  Because the record therefore does not support a challenge to appellate
                  counsel's omission of this issue, Weber has not demonstrated that prior


                        4To  the extent Weber argues that the trial court erred by refusing to
                  change venue, allow individualized voir dire to ascertain the impact of
                  pretrial publicity, and sequester the jury, those claims were appropriate
                  for direct appeal and therefore are procedurally barred absent a
                  demonstration of good cause and prejudice. NRS 34.810(1)(b)(2), (3).
                  Because he has not articulated good cause for failing to raise these claims
                  sooner, no relief is warranted. Weber further argues that we should
                  revisit this court's decision on direct appeal regarding the trial court's
                  denial of two for-cause challenges in light of his new argument that the
                  intense pretrial publicity surrounding his case made it impossible to
                  impanel a fair and impartial jury. We reject this argument, especially
                  where he has still not shown that any seated juror was biased based on
                  pretrial publicity or for any other reason.



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                 postconviction counsel was ineffective for not raising this appellate-
                 counsel claim.
                             Pornography
                             Weber argues that postconviction counsel should have
                 asserted that appellate counsel was ineffective for not arguing that there
                 was insufficient evidence to support the conviction for possession of child
                 pornography because no evidence established that he exercised control
                 over the pornographic images found on the computer and floppy disks
                 retrieved from the home. We conclude that appellate counsel's omission of
                 this sufficiency challenge was not ineffective as a rational trier of fact
                 could find Weber guilty beyond a reasonable doubt based on testimony
                 that the computer and floppy disks containing the child pornography
                 belonged to and were used by Weber.       See Origel-Candido v. State, 114
                 Nev. 378, 381, 956 P.2d 1378, 1380 (1998); Jackson v. Virginia, 443 U.S.
                 307, 319 (1979). While other people living in the home had access to the
                 computer and some of them used it to play video games or type school
                 reports, a rational juror could reasonably infer from the evidence
                 presented that Weber possessed pornographic images of children.         See
                 NRS 200.730; Palmer v. State, 112 Nev. 763, 768-69, 920 P.2d 112, 115
                 (1996). Because any sufficiency challenge would have been rejected had
                 appellate counsel raised it, postconviction counsel was not ineffective for
                 omitting this appellate-counsel claim.
                             Jury instructions
                             Weber also argues that postconviction counsel should have
                 asserted that appellate counsel was ineffective in failing to challenge the
                 "actual and substantial" and "govern and control" language in the
                 reasonable doubt instruction. As the instruction given did not include the

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                word "substantial," postconviction counsel could not fault appellate counsel
                on this point. And because challenges to the "govern and control"
                language had been rejected, see, e.g., Ramirez v. Hatcher, 136 F.3d 1209,
                1213 (9th Cir. 1998); Elvik v. State, 114 Nev. 883, 897-88, 965 P.2d 281,
                290-91 (1998), postconviction counsel similarly could not fault appellate
                counsel for not challenging that part of the instruction, see In re Reno, 283
                P.3d 1181, 1212 (Cal. 2012) (explaining that habeas counsel's failure to
                raise claims previously rejected in other• cases is not objectively
                unreasonable where there is no legitimate• and asserted ground for
                revisiting the issue). Absent any merit to this appellate-counsel claim,
                postconviction counsel cannot be faulted for omitting it.
                            Weber next argues postconviction counsel should have
                asserted that appellate counsel was ineffective for not challenging the
                torture-murder instruction on the ground that the instruction did not
                include all of the requisite elements of the offense. However, the
                instruction comports with the law, see Rippo v. State, 113 Nev. 1239, 1263,
                946 P.2d 1017, 1032 (1996), and Weber does not identify what elements
                were omitted from the instruction. As postconviction counsel could not
                have successfully challenged appellate counsel's failure to challenge this
                instruction upon the ground he asserts here, postconviction counsel was
                not ineffective for omitting this claim.
                            Weber also argues that postconviction counsel should have
                asserted that appellate counsel was ineffective for not arguing that the
                jury was incorrectly instructed that it could convict him of murder and
                kidnapping if it merely found that A.G. was physically restrained, thereby
                relieving the State of its burden to prove every element of the kidnapping
                beyond a reasonable doubt. At the time of Weber's trial and direct appeal,

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                 we had held that physical restraint in itself was sufficient to establish
                 kidnapping distinct from an associated offense (here, murder).     Clem v.
                 State, 104 Nev. 351, 354, 760 P.2d 103, 105 (1988), overruled on other
                 grounds by Zgombic v. State,      106 Nev. 571, 798 P.2d 548 (1990),
                 superseded by statute on other grounds as stated in Steese v. State, 114
                 Nev. 479, 960 P.2d 321 (1998). The instruction used here was consistent
                 with language in Clem.     Because the instruction given was a correct
                 statement of law at the time of Weber's trial and direct appeal, appellate
                 counsel cannot be faulted for not challenging it on appeal. See Strickland
                 v. Washington, 466 U.S. 668, 689 (1984) ("A fair assessment of attorney
                 performance requires that every effort be made to eliminate the distorting
                 effects of hindsight, to reconstruct the circumstances of counsel's
                 challenged conduct, and to evaluate the conduct from counsel's perspective
                 at the time."). Moreover, there was little likelihood of success on the
                 merits had this claim been raised on appeal for two reasons. First, the
                 State's theory on this offense was not dependent on restraint but instead
                 focused more on Weber's conduct when he lied to A.G. to get him to go
                 home and then took A.G. home with the intent to kill him. Second, we
                 indicated in Mendoza v. State, that the test now asserted by Weber does
                 not apply when the associated offense underlying first-degree kidnapping
                 is murder. 5 122 Nev. 267, 275 n.19, 130 P.3d 176, 180 n.19 (2006).



                       5 We acknowledge that shortly after Mendoza, this court nonetheless
                 applied that test where murder was the associated offense underlying a
                 first-degree kidnapping conviction. See Pascua v. State, 122 Nev. 1001,
                 1006, 145 P.3d 1031, 1034 (2006). Pascua does not mention footnote 19 in
                 Mendoza. Even if the test applied here, a challenge to the instruction
                 would not have resulted in a different outcome on direct appeal because
                                                                continued on next page . . .

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                 Because there is no merit to either prong of the appellate-counsel claim,
                 postconviction counsel was not ineffective for omitting it.
                             Weber argues that postconviction counsel should have
                 asserted that appellate counsel was ineffective for not challenging the
                 instructions on malice, anti-sympathy, and equal and exact justice.
                 Because this court had repeatedly upheld those instructions, see Byford v.
                 State, 116 Nev. 215, 232, 994 P.2d 700, 712 (2000) (upholding malice
                 instruction where the jury is properly instructed on the presumption of
                 innocence); Sherman v. State, 114 Nev. 998, 1011, 965 P.2d 903, 912
                 (1998) (upholding anti-sympathy instruction where trial court also
                 instructs the jury to consider mitigating facts); Leonard v. State, 114 Nev.
                 1196, 1209, 969 P.2d 288, 296 (1998) (upholding equal and exact justice
                 instruction), appellate counsel's failure to challenge the instructions did
                 not fall below an objective standard of reasonableness and, consequently,
                 postconviction counsel was not ineffective for omitting this appellate-
                 counsel claim.
                             Deadly weapon enhancement
                             Weber next argues postconviction counsel should have
                 asserted that appellate counsel was ineffective for not challenging the


                 . . . continued
                 the evidence establishes that the movement and physical restraint of A.G.
                 substantially exceeded that required to complete the murder.        See id.
                 ("Although we are cognizant that seizure, restraint, or movement often
                 occurs incidental to the underlying offense of murder, there are certainly
                 situations in which such seizure, movement, or restraint substantially
                 exceeds that required to complete the murder. For example, dual
                 convictions could stand where the object is murder and the victim is
                 kidnapped for that purpose.").



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                 deadly-weapon-enhancement instruction on the ground that it is
                 unconstitutionally vague. We had rejected a similar constitutional
                 challenge to the definition of a "deadly weapon" in Hernandez v. State, 118
                 Nev. 513, 527-28, 50 P.3d 1100, 1110 (2002), which was decided before
                 Weber's direct appeal. Considering the controlling law at the time of the
                 direct appeal, appellate counsel's omission of this issue did not fall below
                 an objective standard of reasonableness. And for that reason, prior
                 postconviction counsel's omission of this appellate-counsel claim also was
                 not deficient. Weber's alternative, sufficiency-of-the-evidence basis for an
                 appellate-counsel claim also falls on the deficiency prong because, based
                 on the evidence presented at trial, the sufficiency challenge does not
                 appear to be so strong that its omission could be characterized as falling
                 below the objective standard of reasonableness that governs counsel's
                 performance. A rational juror could reasonably conclude beyond a
                 reasonable doubt that the various implements used to kill A.G. and Kim
                 were "instrument[s] [or] material[s] . . . which, under the circumstances in
                 which [they were] used . . . [were] readily capable of causing substantial
                 bodily harm or death." NRS 193.165(6)(b) (defining "deadly weapon"). As
                 there was no basis on which postconviction counsel could have successfully
                 challenged appellate counsel's failure to challenge the deadly weapon
                 enhancement, postconviction counsel was not ineffective for omitting this
                 claim.
                          Penalty-phase claims
                               Weighing instruction
                               Weber claims that postconviction counsel should have asserted
                 that appellate counsel was ineffective for not challenging an instruction
                 that did not advise the jury that the aggravating circumstances had to

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                     outweigh the mitigating circumstances beyond a reasonable doubt before
                     the jury could impose a death sentence. Although the cases that have
                     been asserted as support for such an instruction (Ring v. Arizona, 536 U.S.
                     584 (2002) and Johnson v. State, 118 Nev. 787, 59 P.3d 450 (2002)) were
                     available at the time of Weber's direct appeal, trial counsel did not request
                     such an instruction and therefore appellate counsel would have been faced
                     with a plain-error standard. For that reason, it is questionable whether
                     appellate counsel's omission of this issue fell below an objective standard
                     of reasonableness. But even if postconviction counsel could have
                     demonstrated that appellate counsel's performance was deficient, our
                     decisions in McConnell v. State, 125 Nev. 243, 254, 212 P.3d 307, 314-15
                     (2009), which concluded that nothing in the relevant statutory language
                     imposed a beyond-a-reasonable-doubt standard on the weighing of
                     aggravating and mitigating circumstances, and Nunnery v. State, 127
                     Nev., Adv. Op. 69, 263 P.3d 235, 250-53 (2011), which concluded that the
                     weighing of aggravating and mitigating circumstances is not subject to the
                 •   beyond-a-reasonable-doubt standard, establish that there was no
                     reasonable probability of success had this issue been raised by appellate
                     counsel. See also Carr,      U.S. at , 136 S. Ct. at 642 (ION course the
                     ultimate question whether mitigating circumstances outweigh
                     aggravating circumstances is mostly a question of mercy—the quality of
                     which, as we know, is not strained. It would mean nothing, we think, to
                     tell the jury that the defendants must deserve mercy beyond a reasonable
                     doubt; or must more-likely-than-not deserve it."). As such, postconviction
                     counsel could not have established the prejudice prong of the appellate-
                     counsel claim. Because the appellate-counsel claim ultimately would have



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                   had no merit, Weber suffered no prejudice based on postconviction
                   counsel's omission of it.
                                Constitutionality of the aggravating circumstances
                                Weber contends that postconviction counsel should have
                   asserted a number of appellate-counsel claims related to the validity of the
                   sexual assault, torture, and felony aggravating circumstances.
                                      Sexual assault aggravating circumstances
                                Weber argues that postconviction counsel should have
                   asserted that appellate counsel was ineffective for not challenging the
                   aggravating circumstances based on his four convictions for sexually
                   assaulting M.G. on the ground that the jury was not instructed that it had
                   to find beyond a reasonable doubt that those convictions involved the use
                   or threat of violence, as required by NRS 200.033(2)(b).
                                The jurors were instructed that first-degree murder may be
                   aggravated where the "murder was committed by a person who, at any
                   time before a penalty hearing is conducted for the murder, is or has been
                   convicted of a felony involving the use or threat of violence to the person of
                   another," specifically the sexual assault counts related to M.G. The jurors
                   were further instructed that they "must find the existence of each
                   aggravating circumstance, if any, unanimously and beyond a reasonable
                   doubt" and were given the statutory reasonable doubt instruction, NRS
                   175.211. We are not convinced that the instruction relieved the
                   prosecution of its burden of proof. But even if it did, this court's analysis
                   of these aggravating circumstances in the context of its mandatory review
                   of the death sentence on direct appeal indicates that a challenge to the
                   instruction would not have resulted in relief on appeal. Specifically, in
                   upholding the sexual assault aggravating circumstances, this court

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                  concluded that the record established that Weber used or threatened
                  violence when he sexually assaulted M.G.       Weber, 121 Nev. at 586, 119
                  P.3d. 129. Given that ruling, postconviction counsel was not ineffective for
                  omitting this appellate-counsel claim.
                                     Torture aggravating circumstance
                              Weber argues that postconviction counsel should have
                  asserted that appellate counsel was ineffective for not challenging the
                  torture aggravating circumstance on three grounds.
                              First, he argues that appellate counsel should have argued
                  that the aggravating circumstance was not supported by sufficient
                  evidence showing that he intended to inflict pain and suffering or that any
                  torture occurred beyond the act of killing A.G. We conclude that
                  postconviction counsel would not have been able to establish that
                  appellate counsel's omission of this issue was deficient. Because this court
                  was already required under NRS 177.055(2) to review the sufficiency of
                  the evidence regardless of whether the issue was raised by counsel, it
                  would not be objectively unreasonable for appellate counsel to focus their
                  presentation on other issues, particularly considering the page limits on
                  appellate briefs. Additionally, this court's mandatory review of this
                  aggravating circumstance on direct appeal and conclusion that sufficient
                  evidence supported it, Weber, 121 Nev. 587, 119 P.3d at 130, belies any
                  argument that appellate counsels' omission of the issue prejudiced Weber.
                  Because the appellate-counsel claim was without merit, postconviction
                  counsel was not ineffective for omitting it.
                              Second, Weber asserts that appellate counsel should have
                  argued that the torture aggravating circumstance failed to sufficiently
                  narrow the class of defendants eligible for the death penalty because it

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                     "overlapped with the definition of 'murder by torture." In Hernandez v.
                     State, this court held "the definition of torture murder performs a
                     constitutionally satisfactory narrowing function" and therefore the State is
                     allowed to charge first-degree murder by torture and allege an
                     aggravating circumstance based on the same act or acts of torture. 124
                     Nev. 978, 983-85, 194 P.3d 1235, 1239-40 (2008), overruled on other
                     grounds by Armenta-Carpio v. State, 129 Nev., Adv. Op. 54, 306 P.3d 395
                     (2013). Given that holding, Weber was not prejudiced by postconviction
                     counsel's omission of this appellate-counsel claim.
                                 Third, Weber contends that appellate counsel should have
                     argued that the torture aggravating circumstance is unconstitutionally
                     vague and overbroad because this court has inconsistently adhered to the
                     requirement that the torture must be beyond the act of killing itself. His
                     substantive attack on the aggravating circumstance lacks merit as a
                     general matter and as specifically applied in this case. Therefore, he was
                     not prejudiced by postconviction counsel's omission of this appellate-
                     counsel claim.
                                       Redundant felony aggravating circumstances
                                 Weber argues that postconviction counsel should have
                     asserted that appellate counsel was ineffective for not challenging the
                     felony aggravating circumstances that were based on his burglary and
                     kidnapping convictions on the ground that they were redundant to the
                     charges of murder because neither had an independent purpose apart
                     from the killing. The redundancy analysis, which focuses on whether
                     multiple convictions for the same or different offenses are permissible (and
                     has recently been rejected by this court), see Jackson v. State, 128 Nev.,
                     Adv. Op 55, 291 P.3d 1274, 1281-82 (2012) (observing that redundancy

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                 centers on whether the "fact-based same conduct" may support multiple
                 convictions), does not work in this context because the felony aggravating
                 circumstances are not substantive offenses. The fact that these
                 aggravating circumstances are related to the circumstances of the killing
                 is not unusual. Thus, even if appellate counsel's failure to come up with
                 this novel argument fell below an objective standard of reasonableness,
                 that omission• did not prejudice Weber. Postconviction counsel therefore
                 was not ineffective for omitting this appellate-counsel claim.
                             Weber next contends that postconviction counsel should have
                 asserted that appellate counsel was ineffective for not challenging the
                 prior-violent-felony-conviction aggravating circumstance under NRS
                 200.033(2)(b) based on kidnapping KG. because the State also used A.G.'s
                 kidnapping to support an aggravating circumstance under NRS
                 200.033(4). NRS 200.033(2)(b) provides that first-degree murder may be
                 aggravated where the defendant• has a prior conviction for a "felony
                 involving the use or threat of violence to the person of another and the
                 provisions of subsection 4 do not otherwise apply to that felony." (Emphasis
                 added). Subsection 4 provides that first-degree murder may be aggravated
                 where a defendant committed the murder during the commission (or
                 attempted commission) of an enumerated felony, including kidnapping.
                 Because the State alleged that A.G.'s murder was aggravated because it
                 was committed during a kidnapping, it could not also seek the death
                 penalty by using Weber's conviction for kidnapping A G as a separate
                 aggravating circumstance. While appellate counsel should have
                 challenged this dual use of A.G.'s kidnapping and postconviction counsel
                 should have raised the appellate-counsel claim, the elimination of this
                 aggravating circumstance would not have led to a different outcome on

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                 appeal or in the prior postconviction proceeding. In particular, after
                 striking an aggravating circumstance, this court would have reweighed
                 the aggravating and mitigating circumstances or conducted a harmless-
                 error review.    See Clemons v. Mississippi,    494 U.S. 738, 741 (1990).
                 Considering the numerous remaining aggravating circumstances and the
                 mitigating evidence presented, we conclude that there is no reasonable
                 probability that this court would have reversed the death sentence.
                 Therefore, Weber cannot show prejudice based on postconviction counsel's
                 omission of this claim.°
                                    Issues related to burglary
                              Weber argues that postconviction counsel should have
                 challenged appellate counsel's failure to challenge the aggravating
                 circumstance based on burglary and his burglary convictions. Weber
                 asserts that the issue unreasonably omitted by appellate counsel is a
                 constitutional challenge to Nevada's definition of burglary on the ground
                 that it is overbroad and vague because it applies to a person who enters
                 his own home with the intent to commit larceny or a felony. But the
                 omitted appellate argument is more properly described as a challenge to
                 the sufficiency of the evidence to support the burglary aggravating
                 circumstance and convictions and that is the way it was presented in the
                 petition filed below.
                              Recently in State v. White, we explained that under Nevada
                 law "a person with an absolute right to enter a structure cannot commit


                        °Pursuant to NRS 200.033(2)(b), we strike the prior-violent-felony-
                 conviction aggravating circumstance that was based on Weber's conviction
                 for kidnapping A.G.



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                burglary of that structure." 130 Nev., Adv. Op. 56, 330 P.3d 482, 485-86
                (2014). The State therefore had the burden to prove that Weber did not
                have an absolute, unconditional right to enter the home at the time the
                crimes occurred.   See People v. Gill, 70 Cal. Rptr. 3d 850, 866 (Ct. App.
                2008) (observing that the prosecution "must prove that a defendant does
                not have an unconditional possessory right to enter his or her family
                residence" to sustain a burglary conviction). As White merely articulated
                the substantive law on burglary as it has always been in Nevada,
                appellate counsel could have challenged the burglary convictions and
                felony aggravating circumstance.
                            Whether appellate counsel's failure to do so and postconviction
                counsel's failure to raise the appellate-counsel claim fell below an objective
                standard of reasonableness and prejudiced the defense is not entirely clear
                from the record. The evidence presented at trial seems to show •that
                Weber moved into the family's residence early in his relationship with
                Kim and that, although he moved out on occasion when the relationship
                was on the rocks and kept personal belongings at both the family's home
                and his mother's home, Weber had resumed his relationship with Kim
                about one week before the murders and was living in her house at that
                time. This evidence thus suggests that Weber had an absolute,
                unconditional right to enter the home at the time of the murders. The
                evidence is less clear with respect to the second burglary charge related to
                the events of April 14, 2002. At that point, Weber had killed Kim and A.G.
                and fled Las Vegas, so he arguably no longer had an absolute,
                unconditional right to enter the home.     Cf. People v. Ulloa, 102 Cal. Rptr.
                3d 743 (Ct. App. 2009) (discussing various circumstances where defendant
                may no longer have unconditional possessory right to enter residence).

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                   Under the circumstances, we conclude that an evidentiary hearing is
                   warranted to determine whether the postconviction-counsel claim has
                   merit as to the failure to assert an appellate-counsel claim based on the
                   omitted challenge to the burglary convictions.
                                In contrast, even if a challenge to the burglary aggravating
                   circumstance would have been successful, Weber cannot demonstrate the
                   prejudice prong of the ineffective-assistance claim. Although a successful
                   challenge to the aggravating circumstance might have resulted in this
                   court striking the aggravating circumstance, it would not have afforded
                   Weber relief from the death sentence. In particular, after reweighing the
                   aggravating and mitigating circumstances or conducting a harmless-error
                   review, we conclude that there is no reasonable probability that this court
                   would have reversed the death sentence considering the numerous
                   remaining aggravating circumstances and the mitigating evidence
                   presented. Therefore, Weber failed to demonstrate prejudice resulting
                   from postconviction counsel's failure to raise an appellate-counsel claim
                   challenging this aggravating circumstance. 7




                         7 To the extent Weber argues that he is actually innocent of the
                   death penalty due to the invalidity of the aggravating circumstances, his
                   claim lacks merit. After striking the prior-violent-felony-conviction
                   aggravating circumstance based on Weber's conviction for kidnapping A.G.
                   and even accepting his argument regarding the aggravating circumstance
                   based on burglary, other valid aggravating circumstances remain and
                   therefore he is not actually innocent of the death penalty. See Lisle v.
                   State, 131 Nev., Adv. Op. 39, 351 P.3d 725, 734 (2015) (observing that only
                   aggravating circumstances are relevant to a gateway claim that the
                   defendant is actually innocent of the death penalty).



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                Cumulative error
                             Weber contends that based on the cumulative effect of
                postconviction counsel's failure to raise the claims argued here, there is a
                reasonable probability that the result of the prior postconviction
                proceeding would have been different. Assuming that multiple
                deficiencies in counsel's performance may be considered cumulatively to
                establish prejudice, see McConnell v. State, 125 Nev. 243, 259 n.17, 212
                P.3d 307, 318 n.17 (2009), we are not convinced that the cumulative
                deficiencies in postconviction counsel's performance—omitting appellate-
                counsel claims challenging the prior-violent-felony-conviction aggravating
                circumstance based on his kidnapping conviction, the felony aggravating
                circumstance based on burglary, and the burglary convictions—prejudiced
                Weber. 8




                      8 We   reject Weber's contention that the district court erred by
                denying his claim that the cumulative effect of the errors committed at
                trial, on direct appeal, and during postconviction proceedings entitle him
                to a new trial and penalty hearing. Finally, we reject Weber's argument
                that postconviction counsel should have asserted that appellate counsel
                was ineffective for not arguing that execution by lethal injection as
                administered in Nevada constitutes cruel and unusual punishment. See
                McConnell v. State, 125 Nev. 243, 246-49, 212 P.3d 307, 310-11 (2009)
                (holding that challenge to lethal injection protocol is not cognizable in
                postconviction habeas proceedings).



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                                      Having considered Weber's claims, we
                                      ORDER the judgment of the district court AFFIRMED IN
                        PART AND REVERSED IN PART and REMAND this matter for an
                        evidentiary hearing based on the omitted challenge to the burglary
                        convictions.°


                                                     t A Yi ez—sif
                                                 Parraguirre u


                                   Lee-4.-c         J.
                        Hardesty                                     Douglas



                        Cherry                                       Gibbons


                        PICKERING, J., concurring in part and dissenting in part:
                                      In 2003, a jury convicted Weber of 17 felonies, including two
                        counts of murder, and sentenced him to death. The 15 non-murder felony
                        convictions were for acts associated with the murders, including two
                        burglary convictions, for unlawfully entering the victims' residence with
                        intent to commit felonies therein. Weber appealed, this court affirmed,
                        Weber v. State, 121 Nev. 554, 119 P.3d 107 (2005), and in 2006, the United
                        States Supreme Court denied certiorari, Weber v. Nevada, 546 U.S. 1216
                        (2006). There followed Weber's first petition for habeas corpus, which the
                        district court denied, which order this court affirmed on appeal, Weber v.

                              9 The Honorable Nancy Saitta, Justice, did not participate in the
                        decision in this matter.



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                   State, Docket No. 50613 (Order of Affirmance, July 20, 2010); and Weber's
                   second petition for habeas corpus, which the district court denied in
                   December of 2012, from which Weber again appealed. It is this appeal
                   from the district court's order denying Weber's second petition for a writ of
                   habeas corpus that is now before the court.
                                The majority upholds the district court's order denying
                   Weber's second petition for habeas corpus as to his murder convictions and
                   the sentence of death he received. However, it reverses and remands for
                   an evidentiary hearing on Weber's claim that first postconviction counsel
                   was ineffective for not asserting a claim that appellate counsel was
                   ineffective in not challenging Weber's burglary convictions on direct
                   appeal. The majority orders these further proceedings even though the
                   majority also finds, ante at 29, that assuming Weber succeeds in
                   eliminating the burglary convictions, this will not, as a matter of law,
                   "afford[ ] Weber relief from the death sentence," because Weber's murder
                   conviction and death sentence stand with or without the burglary
                   convictions as aggravators. While I otherwise join the majority's order, I
                   submit that the burglary convictions are final and unreviewable except to
                   the extent they affect the death sentence, which the majority holds, as a
                   matter of law, they do not. I therefore would not remand this matter for
                   an evidentiary hearing but would instead affirm the district court's order
                   in its entirety.
                                The special rules afforded postconviction petitioners sentenced
                   to death—the statutory right to the appointment of first postconviction
                   counsel, NRS 34.820, and the right to the effective assistance of that
                   counsel, Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997);
                   McKague v. Warden, 112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996)—

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                 are a departure from the rule that otherwise limits habeas corpus
                 petitioners to one time through the system. Given the unique and
                 irrevocable nature of the death penalty, the Legislature deemed it
                 appropriate to provide additional protections for those petitioners facing
                 the ultimate sentence. But those protections, I believe, extend solely to
                 matters that subject a defendant to the death penalty.     Cf. McKinney v.
                 State, 992 P.2d 144, 154 (Idaho 1999) (noting that postconviction
                 procedures affording additional review in death penalty cases do not
                 extend to non-death sentences imposed on related convictions obtained in
                 the same underlying trial).
                             There is a long-standing legal maxim that "where the reason
                 of a rule cease[s] the rule also cease[s]." Funk v. United States, 290 U.S.
                 371, 384 (1933); see also Reno Smelting, Milling & Reduction Works v.
                 Stevenson, 20 Nev. 269, 279, 21 P. 317, 320 (1889) ("It is contrary to the
                 spirit of the common law itself to apply a rule founded on a particular
                 reason to a case where that reason utterly fails—cessante ratione legis,
                 cessat ipsa lex.").   Here, the reason behind the additional review NRS
                 34.820 affords, in our interpretation of it, ceases to exist with respect to
                 postconviction-counsel claims based on matters that do not subject a
                 defendant to capital punishment, as to which the judgment of conviction
                 has become final. It naturally follows that a second postconviction petition
                 should be limited only to postconviction-counsel claims related to the
                 capital offense and the death sentence. To cast a wider net to capture
                 matters related to Weber's burglary convictions that have no bearing on
                 the capital offense or the death sentence is, in my view, a misuse of the
                 judicial process and contributes to the seemingly endless delays in
                 bringing capital cases to a close.

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                               Therefore, while I concur in large part, I respectfully dissent
                from the majority's decision to remand this matter for an evidentiary
                hearing on Weber's postconviction-counsel claim related to his burglary
                convictions.




                                                              Picts ul
                                                                    t;A
                                                        Pickering




                cc: Hon. Douglas Smith, District Judge
                     Federal Public Defender/Las Vegas
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




SUPREME COURT
        OF
     NEVADA
                                                       34
(0) 1947A
