                                                   132 Nev., Advance Opinion 1 1
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                MICHAEL DAMON RIPPO,                                   No. 53626
                Appellant,
                vs.
                THE STATE OF NEVADA,
                                                                             FILED
                Respondent.                                                  FEB 2 5 2016

                                                                        BY




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

                Rene L. Valladares, Federal Public Defender, and David Anthony and
                Michael Pescetta, Assistant Public Defenders, Las Vegas,
                for Appellant.

                Adam Paul Laxalt, Attorney General, Carson City; Steven S. Owens, Chief
                Deputy District Attorney, Clark County,
                for Respondent.'




                      'After this appeal was briefed, argued, and submitted for decision,
                attorney Steven Wolfson was appointed Clark County District Attorney.
                Mr. Wolfson was one of the attorneys who represented appellant Michael
                Damon Rippo at trial. He has not appeared as the district attorney in this
                appeal.




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                 BEFORE PARRAGUIRRE, C.J., HARDESTY, DOUGLAS, CHERRY,
                 SAITTA, GIBBONS and 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


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                  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 (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

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                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

                      °The facts are set forth in greater detail in our opinion on direct
                appeal from the judgment of conviction. Rippo, 113 Nev. at 1244-47, 946
                P.2d at 1021-23.

                      3 Hunttestified that when she accused Rippo of choking the women,
                he told her that he had temporarily cut off their air supply and that he
                and Hunt needed to leave before the women regained consciousness.




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                strangulation and that Jacobson died from asphyxiation due to manual
                strangulation. But the medical examiner also testified that neither body
                revealed stun gun marks. A jury found Rippo guilty of two counts of first-
                degree murder and one count each of robbery and unauthorized use of a
                credit card.
                               At the penalty hearing, the State alleged six aggravating
                circumstances: that the murders were committed (1) by a person who was
                under a sentence of imprisonment; (2) by a person who was previously
                convicted of a felony involving the use or threat of violence to the person of
                another; (3) during the commission of a burglary; (4) during the
                commission of a kidnapping; (5) during the commission of a robbery; and
                (6) that the murders involved torture, depravity of mind, or the mutilation
                of the victims In support of the first two aggravating circumstances, the
                State presented evidence that Rippo had a prior conviction for sexual
                assault and was on parole at the time of the murders. The remaining
                aggravating circumstances were supported by the guilt-phase evidence. In
                addition to the evidence supporting the aggravating circumstances, the
                State presented evidence that Rippo had a prior conviction for burglary
                and had confessed to committing numerous burglaries. The State also
                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

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                incarcerated; (2) Hippo's stepfather, Robert Duncan, testified regarding
                Hippo's friendly behavior when living with him while on parole and asked
                the jury to spare Hippo's life; and (3) Hippo's sister testified that their
                former stepfather, James Anzini, emotionally abused Hippo and had stolen
                his paychecks and gambled them away, and she urged the jury to show
                mercy. The defense also presented a letter from Hippo's mother, who was
                unable to testify in person because of medical issues. She described
                Hippo'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
                Hippo'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 Hippo when Anzini was diagnosed with
                terminal cancer, eventually leading up to the sexual assault committed by
                Hippo in 1981; and Hippo'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.
                              Hippo 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 NHS

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                 34.820, Hippo 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
                 Hippo'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.
                               Hippo 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 Hippo's motion for discovery as moot.
                 This appeal followed.




                       4 The   petition was accompanied by approximately 17 volumes of
                 exhibits.




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                                               DISCUSSION
                            The petition at issue raised claims for relief based on trial
                error, prosecutorial misconduct and failure to disclose evidence, ineffective
                assistance of trial counsel, ineffective assistance of appellate counsel, and
                ineffective assistance of postconviction counsel. Rippo acknowledged that
                the petition was not filed within the time period provided by NRS
                34.726(1) and that most of the grounds in the petition were either waived,
                successive, or an abuse of the writ and therefore subject to various
                procedural defaults under NRS 34.810. He provided several explanations
                for his failure to file the petition within the time provided by MRS
                34.726(1) and for failing to raise the new claims in prior proceedings or
                raising the claims again. The district court dismissed the petition as
                procedurally defaulted, specifically mentioning NRS 34.726 and NRS
                34.810(2). In reviewing the district court's application of the procedural
                default rules, we will give deference to its factual findings but "will review
                the court's application of the law to those facts de novo." State v. Huebler,
                128 Nev. 192, 197, 275 P.3d 91, 95 (2012).
                Ineffective assistance of postconviction counsel as cause and prejudice to
                excuse a procedural default
                            This opinion focuses on Rippo's allegations that counsel
                appointed to represent him in his first postconviction proceeding provided
                ineffective assistance (postconviction-counsel claim). We have recognized
                a right to effective assistance of postconviction counsel only where the
                appointment of postconviction counsel is statutorily mandated.             See
                Crump v. Warden, 113 Nev. 293, 303 & n.5, 934 P.2d 247, 253 & n.5
                (1997); McKague v. Warden, 112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5


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                 (1996). Under Nevada law, the appointment of postconviction counsel is
                 statutorily mandated in one circumstance: where the "petitioner has been
                 sentenced to death and the petition is the first one challenging the validity
                 of the petitioner's conviction or sentence." NRS 34.820(1)(a). That is the
                 case here—Hippo has been sentenced to death and his prior petition was
                 the first one challenging the validity of his conviction and sentence. Hippo
                 therefore was entitled to effective assistance of that counsel.
                             Hippo's allegations regarding postconviction counsel arise in
                 two contexts. First, Hippo asserted a postconviction-counsel claim as a
                 free-standing claim for relief from his judgment of conviction and sentence
                 (claim 20(A), (B)). 5 Second, Hippo asserted that postconviction counsel's
                 ineffective assistance established "cause and prejudice" to excuse the
                 procedural default of the other claims in his petition. In both contexts, we
                 must address the allegations about postconviction counsel's performance
                 within the prism of the three procedural bars that are implicated by the
                 petition and the district court's decision: the second-or-successive-petition

                        °The free-standing claim raises another issue that has not been
                 adequately addressed by the parties and therefore is not addressed in this
                 opinion: whether a free-standing claim of ineffective assistance of
                 postconviction counsel is cognizable in a postconviction petition for a writ
                 of habeas corpus given that there is no constitutional right to
                 postconviction counsel. See NRS 34.724(1) ("Any person convicted of a
                 crime and under sentence of death or imprisonment who claims that the
                 conviction was obtained, or that the sentence was imposed, in violation of
                 the Constitution of the United States or the Constitution or laws of this
                 State . . . may. . . file a postconviction petition for a writ of habeas corpus
                 to obtain relief from the conviction or sentence . . . ." (emphasis added)).




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                bar set forth in NRS 34.810(2), the waiver bar set forth in NRS
                34.810(1)(b), and the time bar set forth in NRS 34.726(1). 6
                      Successive petitions and abuse of the writ
                            We start with the statutory provision that limits second or
                successive habeas petitions that challenge a judgment of conviction or
                sentence. Under NRS 34.810(2), such a petition must be dismissed in
                either of two circumstances: (1) if "it fails to allege new or different
                grounds for relief and. . the prior determination was on the merits" or
                (2) "if new and different grounds are alleged" and the court finds that the
                petitioner's failure "to assert those grounds in a prior petition constituted
                an abuse of the writ." To avoid dismissal under this provision, the

                      6 Rippo's   petition was subject to a fourth procedural bar, laches
                under NRS 34.800, because it was filed more than five years after our
                decision on direct appeal from the judgment of conviction.            See NRS
                34.800(2). Although the State pleaded laches below as required by MRS
                34.800(2), we decline to address it on appeal for two reasons. First, the
                district court did not mention laches in its order, and the State has not
                asserted it as an alternative basis on which to affirm the district court's
                decision aside from a summary statement on the final page of its brief that
                claim 21 is "subject to laches." Second, we need not consider whether the
                petition is procedurally defaulted under NRS 34.800 because it is
                procedurally defaulted under other provisions. See Riker, 121 Nev. at 239,
                112 P.3d at 1079 ("A court need not discuss or decide every potential basis
                for its decision as long as one ground sufficient for the decision
                exists. . . . Thus, our conclusion in a case that one procedural bar precludes
                relief carries no implication regarding the potential applicability of other
                procedural bars." (footnote omitted)); see also Pellegrini v. State, 117 Nev.
                860, 867 n.5, 34 P.3d 519, 524 n.5 (2001) (declining to address laches
                where claims were procedurally barred under other provisions and district
                court's order did not rely on laches).




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                  petitioner must plead and prove specific facts that demonstrate both
                  "[g]ood cause for the petitioner's failure to present the claim or for
                  presenting the claim again" and "[a]ctual prejudice to the petitioner."
                  NRS 34.810(3). Here, the prior petition was resolved on the merits and all
                  of the grounds in the second petition had been raised in the prior petition
                  or were new and different grounds for relief. The second petition therefore
                  was subject to dismissal under NRS 34.810(2) absent a showing of cause
                  and prejudice under NRS 34.810(3).
                        Failure to raise claims in prior proceedings
                              A petition also may be subject to dismissal under NRS
                  34.810(1)(b) if it raises any grounds that could have been raised in a prior
                  proceeding (whether at trial, on appeal, or in a prior postconviction
                  proceeding). Like the procedural default for second and successive
                  petitions under NRS 34.810(2), this procedural default may be excused by
                  a showing of "cause for the failure to present the grounds and actual
                  prejudice," NRS 34.810(1)(b), and the petitioner has "the burden of
                  pleading and proving specific facts that demonstrate" cause and actual
                  prejudice, NRS 34.810(3). Most of the grounds raised in Rippo's petition
                  could have been raised in a prior proceeding, including those based on
                  alleged errors that occurred at trial (claims 1, 2, 6-14), which could have
                  been raised on direct appeal; ineffective assistance of trial and appellate
                  counsel (claims 3-8, 10-12, 14, 16-19), which could have been raised in the
                  prior postconviction habeas petition; errors on appellate review (claim 15),
                  which could have been raised in a petition for rehearing; and errors or
                  irregularities in the prior postconviction proceeding (claim 20(C)-(G)),



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                 which could have been raised in the prior postconviction appeal. Those
                 grounds therefore are subject to dismissal under NRS 34.810(1)(b)."
                       Procedural default of cause-and-prejudice claim
                              To demonstrate the cause required to excuse the procedural
                 default of claims under NRS 34.810(1)(b) and (2), the petitioner must show
                 that "an impediment external to the defense" prevented the petitioner
                 from presenting the claims previously or warrants presenting them again.
                 Clem v. State, 119 Nev. 615, 621, 81 P.3d 521, 525 (2003). In an effort to
                 make the required showing, Rippo relies primarily on allegations that his
                 first postconviction counsel provided ineffective assistance.
                              This court has addressed ineffective assistance of
                 postconviction counsel as cause to excuse a procedural default under NRS
                 34.810(1)(b) in Crump. In that case, we held that where a petitioner has
                 the statutory right to assistance of postconviction counsel, a meritorious
                 claim that postconviction counsel provided ineffective assistance may
                 establish cause under NRS 34.810(1)(b) for the failure to present claims
                 for relief in a prior postconviction petition for a writ of habeas corpus. 8


                       "The free-standing postconviction-counsel claim (claim 20(A), (B))
                 could not have been raised in a prior proceeding; that ground therefore is
                 not subject to NRS 34.810(1)(b) to the extent that it is cognizable, see
                 supra n.5. See Riker, 121 Nev. at 235, 112 P.3d at 1077.

                       8 We  have held that good cause cannot be shown based on a
                 postconviction-counsel claim where there is no constitutional or statutory
                 right to counsel. McKague, 112 Nev. at 164-65, 912 P.2d at 258; see also
                 Brown v. McDaniel, 130 Nev., Adv. Op. 60, 331 P.3d 867, 869 (2014)
                 (holding that decision in Martinez v. Ryan, 566 U.S. , 132 S. Ct. 1309
                                                                continued on next page . . .


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                113 Nev. 293, 304-05, 934 P.2d 247, 254 (1997). But we have also
                recognized that an ineffective-assistance-of-counsel claim cannot be
                asserted as cause to excuse the procedural default of another claim for
                relief if the ineffective-assistance claim is itself defaulted.   Hathaway v.
                State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003); accord Edwards v.
                Carpenter, 529 U.S. 446, 452-54 (2000) (holding that ineffective-assistance
                claim asserted in federal habeas petition as cause for procedural default of
                another claim may itself be subject to procedural default that can be
                excused only by satisfying cause-and-prejudice standard with respect to
                ineffective-assistance claim). That is the case here: Rippo's ineffective-
                assistance-of-postconviction-counsel claim is itself subject to procedural
                default under NRS 34.726(1). 9 Riker, 121 Nev. at 235, 112 P.3d at 1077;
                see also Pellegrini, 117 Nev. at 869-70, 34 P.3d at 526 (rejecting argument
                that NRS 34.726 does not apply to second or successive petitions).




                . . . continued
                (2012), does not address state procedural default rules and refusing to
                recognize ineffective assistance of postconviction counsel as good cause
                where petitioner did not have statutory or constitutional right to
                postconviction counsel).

                      9 Thisprocedural default was not addressed in Crump because
                Crump filed his petition in 1989, before NRS 34.726 had been adopted.
                See 1991 Nev. Stat., ch. 44, § 5, at 75-76 (adopting NRS 34.726); id. § 33,
                at 92 (providing that amendments did not apply to postconviction
                proceedings commenced before January 1, 1993).




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                                                             ;flr
                               Availability of postconviction-counsel claim and time within
                               which it must be raised
                               Under NRS 34.726(1), a habeas petition challenging a
                   judgment of conviction or sentence must be filed within one year after
                   entry of the judgment of conviction, or if a timely appeal is taken from the
                   judgment of conviction, within one year after this court issues its
                   remittitur on direct appeal from the judgment of conviction.      Dickerson v.
                   State, 114 Nev. 1084, 1087-88, 967 P.2d 1132, 1133-34 (1998) (construing
                   NRS 34.726(1) to allow one year from remittitur on direct appeal only if
                   direct appeal was timely). Hippo's petition was not filed within that time
                   period. To excuse the delay in filing the petition, Hippo had to
                   demonstrate good cause for the delay. NRS 34.726(1). A showing of good
                   cause for the delay has two components: (1) that the delay was not the
                   petitioner's fault and (2) that "dismissal of the petition as untimely will
                   unduly prejudice the petitioner." Id.
                               The first component of the cause standard under NRS
                   34.726(1) requires a showing that "an impediment external to the defense"
                   prevented the petitioner from filing the petition within the time
                   constraints provided by the statute.         Clem, 119 Nev. at 621, 81 P.3d at
                   525; Hathaway, 119 Nev. at 252, 71 P.3d at 506. "A qualifying
                   impediment might be shown where the factual or legal basis for a claim
                   was not reasonably available at the time of any default." Clem, 119 Nev.
                   at 621, 81 P.3d at 525; see also Hathaway, 119 Nev. at 252, 71 P.3d at 506.
                   Hippo argues that there was such an impediment. Specifically, he asserts
                   that the delay in filing the petition was due to ineffective assistance of
                   postconviction counsel and that his postconviction-counsel claim was not


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                available at the time of the procedural default under NRS 34.726(1). We
                agree.
                             The availability of a postconviction-counsel claim is related to
                the showing that a petitioner must make to prove the claim. To make out
                a claim that postconviction counsel provided ineffective assistance, a
                petitioner must demonstrate that counsel's performance was deficient and
                that the deficient performance resulted in prejudice.   See discussion infra
                pp. 20-24. Although a petitioner knows during the course of the
                postconviction proceedings that postconviction counsel omitted claims or
                presented claims in a certain way, he cannot state a claim of ineffective
                assistance of postconviction counsel until he has suffered prejudice. The
                basis for the claim thus depends on the conclusion of the postconviction
                proceedings in which the ineffective assistance allegedly occurred. Paz v.
                State, 852 P.2d 1355, 1358 (Idaho 1993) (Bistline, J., dissenting); cf.
                K.J.B., Inc. v. Drakulich, 107 Nev. 367, 369-70, 811 P.2d 1305, 1306 (1991)
                (explaining that statute of limitations for attorney malpractice action does
                not begin to run until claimant sustains damages and "that damages for
                attorney malpractice are premature and speculative until the conclusion of
                the underlying lawsuit in which the professional negligence allegedly
                occurred"). In this case, as with most capital cases, the postconviction
                proceedings did not conclude within the time period provided in NRS
                34.726(1). Therefore, the claim that postconviction counsel provided
                ineffective assistance in litigating the prior petition was not reasonably
                available to Rippo at the time of the procedural default under NRS
                34.726(1).



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                                      The fact that the claim was not reasonably available within
                         the one-year period does not end the inquiry because a petitioner does not
                         have an indefinite period of time to raise a postconviction-counsel claim.
                         As we have recognized, "[t]he necessity for a workable [criminal justice]
                         system dictates that there must exist a time when a criminal conviction is
                         final."   Groesbeck v. Warden, 100 Nev. 259, 261, 679 P.2d 1268, 1269
                         (1984) (explaining consideration behind decision to restrict postconviction
                         petition for writ of habeas corpus before enactment of specific statutory
                         time limitations on such petitions). Consistent with that need for finality,
                         we have held that when a petition raises a claim that was not available at
                         the time of a procedural default under NRS 34.726(1), it must be filed
                         within "a reasonable time" after the basis for the claim becomes available.
                         Hathaway, 119 Nev. at 254-55, 71 P.3d at 507-08 (discussing delay in
                         filing petition alleging appeal-deprivation claim where petitioner believed
                         that attorney had filed appeal and did not learn of attorney's failure to file
                         appeal before procedural default under NRS 34.726(1)). To determine
                         whether Hippo's petition was filed within a reasonable time, we must
                         answer two questions: (1) when does a claim that postconviction counsel
                         provided ineffective assistance become available, and (2) what is a
                         reasonable time thereafter for filing a petition that raises the claim.
                                      The answer to the first question is related to the basis for a
                         postconviction-counsel claim. We reasoned above that a necessary basis
                         for a claim of ineffective assistance of postconviction counsel depends on
                         the conclusion of the postconviction proceedings in which the ineffective
                         assistance allegedly occurred. Consistent with that determination, we
                         conclude that the postconviction-counsel claim becomes available at the

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             4i,
                conclusion of those proceedings. Although there is no mandatory appeal in
                the postconviction context and it is not clear that there is a statutory right
                to counsel to pursue an appeal from an order denying a postconviction
                habeas petition even when there was such a right to counsel in the district
                court, 1-0 we conclude that as a practical matter, if a timely appeal is taken,
                the postconviction proceeding concludes when this court issues its
                remittitur on appeal. Otherwise, there is the potential for piecemeal
                litigation that would further clog the criminal justice system.    If no timely
                appeal is filed, the postconviction proceeding concludes when the district
                court enters its judgment resolving the petition. In this case, the prior
                postconviction proceeding concluded when this court issued its remittitur
                in the postconviction appeal on January 16, 2007. Rippo's postconviction-
                counsel claim therefore became available on that date.
                            The next question is whether Rippo's petition was filed within
                a reasonable time after the postconviction-counsel claim became available.
                Rippo asserts that a reasonable time for filing a petition that raises a



                       wThe Supreme Court has indicated that there is no constitutional
                right to assistance of counsel on appeal from an "initial-review collateral
                proceeding." Coleman v. Thompson, 501 U.S. 722, 755 (1991); see also
                Martinez v. Ryan, 566 U.S. „ 132 S. Ct. 1309, 1320 (2012) ("The
                holding in this case does not concern attorney errors in other kinds of
                proceedings, including appeals from initial-review collateral proceedings,
                second or successive collateral proceedings, and petitions for discretionary
                review in a State's appellate courts."). And NRS 34.820(1)(a) does not
                clearly indicate whether the mandatory appointment of counsel pursuant
                to that statute carries over to an appeal.




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                 postconviction-counsel claim would be within one year after the claim
                 becomes available, similar to the time limit set forth in NRS 34.726(1).
                 The State, on the other hand, suggests that a delay of even less than one
                 year may be unreasonable depending on the circumstances, thus
                 proposing more of a claim-by-claim approach. Both positions hold some
                 appeal. Rippo's position provides a bright-line rule while providing
                 sufficient time to investigate additional claims that may not appear from
                 the record. The State's position acknowledges that most omitted claims
                 will appear in the record and that a year is not required for all claims that
                 may have been unavailable at the time of a default under NRS 34.726(1).
                 We are reluctant, however, to take the State's approach because it would
                 only add to the already endless litigation over the application of the
                 procedural default rules, rules that are supposed to discourage the
                 perpetual filing of habeas petitions, see Pellegrini, 117 Nev. at 875, 34 P.3d
                 at 529. One needs only look to the California experience in applying its
                 requirement that a habeas petition be filed without "substantial delay" to
                 understand our reticence to use an imprecise standard in this arena.      See
                 generally In re Gallego, 959 P.2d 290 (Cal. 1998); In re Robbins, 959 P.2d
                 311 (Cal. 1998); In re Clark, 855 P.2d 729 (Cal. 1993); see also Carey v.
                 Saffold, 536 U.S. 214, 223 (2002) (discussing California's timeliness
                 standard in context of applying federal tolling provision and observing
                 that he fact that California's timeliness standard is general rather than
                 precise may make it more difficult for federal courts to determine just
                 when a review application . . . comes too late").
                             To provide clearer boundaries, we look to NRS 34.726 for
                 guidance. With NRS 34.726(1), the Legislature has determined that one

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                  year provides sufficient time within which to raise claims that trial and
                  appellate counsel provided ineffective assistance. The same can be said
                  with respect to raising a postconviction-counsel claim. Using a similar
                  one-year boundary for what is a reasonable time within which to file a
                  petition raising a postconviction-counsel claim that was not factually or
                  legally available at the time of a procedural default under NRS 34.726 also
                  provides some fairness and predictability. CI Pellegrini, 117 Nev. at 874-
                  75, 34 P.3d at 529 (concluding that for purposes of determining timeliness
                  of successive petitions filed by petitioners whose convictions were final
                  before effective date of NRS 34.726, "it is both reasonable and fair to allow
                  petitioners one year from the effective date of the amendment to file any
                  successive habeas petitions"). We therefore conclude that a claim of
                  ineffective assistance of postconviction counsel has been raised within a
                  reasonable time after it became available so long as the postconviction
                  petition is filed within one year after entry of the district court's order
                  disposing of the prior postconviction petition or, if a timely appeal was
                  taken from the district court's order, within one year after this court
                  issues its remittitur. Because Rippo filed his petition within one year
                  after we issued our remittitur on appeal from the order denying the prior
                  petition, the second petition was filed within a reasonable time after the
                  postconviction-counsel claim became available. Rippo thus met the first
                  component of the good-cause showing required under NRS 34.726(1).




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                                Undue prejudice to excuse untimely petition based on
                               ineffective assistance of postconviction counsel and standard
                               for evaluating postconviction counsel's effectiveness
                               The second component of the good-cause showing under NRS
                   34.726(1) requires the petitioner to demonstrate "What dismissal of the
                   petition as untimely will unduly prejudice [him]." A showing of undue
                   prejudice necessarily implicates the merits of the postconviction-counsel
                   claim, otherwise this requirement would add nothing to the first
                   component of the good-cause showing required under NRS 34.726(1) and
                   the petitioner would be able to overcome the procedural default under that
                   statute without establishing the merits of the postconviction-counsel
                   claim.
                               To determine whether the postconviction-counsel claim has
                   any merit, we must address the standard for evaluating postconviction
                   counsel's performance. We have held that the standard set forth in
                   Strickland v. Washington, 466 U.S. 668 (1984), applies to evaluate the
                   effectiveness of trial counsel, Warden v. Lyons, 100 Nev. 430, 432-33, 683
                   P.2d 504, 505 (1984), and appellate counsel, Kirksey v. State, 112 Nev. 980,
                   998, 923 P.2d 1102, 1113 (1996). Similarly, we have indicated that
                   Strickland should be used to evaluate the effectiveness of postconviction
                   counsel where there is a statutory right to that counsel           Crump v.
                   Warden, 113 Nev. 293, 304, 934 P.2d 247, 254 (1997) ("[We must remand
                   this matter to the district court for an evidentiary hearing to determine
                   whether [first postconviction counsel's] omissions constitute ineffective
                   assistance of counsel as set forth in Strickland."). But unlike the rights to
                   effective assistance of trial and appellate counsel, which are guaranteed by


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                the Sixth and Fourteenth Amendments to the United States Constitution,
                Evitts v. Lucey, 469 U.S. 387, 392, 396-97 (1985), there is no recognized
                constitutional right to effective assistance of postconviction counsel,"
                McKague v. Warden, 112 Nev. 159, 163, 912 P.2d 255, 257-58 (1996)
                (concluding that neither the United States nor Nevada Constitution
                provides for a right to counsel in postconviction proceedings). Given that
                distinction, we are not obligated to apply Strickland to evaluate
                postconviction counsel's effectiveness.   See People v. Perkins, 856 N.E.2d
                1178, 1183 (Ill. App. Ct. 2006) (observing that with statutory right to
                postconviction counsel, "Strickland is not automatically applicable to
                claims of less-than-reasonable assistance of postconviction counsel").
                However, because Strickland provides a well-established standard that
                has been developed through caselaw and can be easily applied in the
                postconviction-counsel context, see Means v. State, 120 Nev. 1001, 1011,
                103 P.3d 25, 32 (2004) (describing Strickland as "a fair, workable and, as
                it turns out, durable standard"), we take this opportunity to explicitly
                adopt the Strickland standard to evaluate postconviction counsel's


                       "In the absence of a Supreme Court decision recognizing a
                constitutional right, we reiterate that the limited right to effective
                assistance of postconviction counsel addressed in this opinion arises out of
                the statutory mandate to appoint counsel under NRS 34.820(1)(a), and we
                disavow any prior decisions suggesting that the right has a constitutional
                basis, see, e.g., Pellegrini, 117 Nev. at 887-88 n.125, 34 P.3d at 537 n.125
                (describing McKague as "holding that there is no constitutional right to
                effective assistance of counsel except where state law entitles one to the
                appointment of counsel"); Crump, 113 Nev. at 304-05, 934 P.2d at 254.




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                     performance where there is a statutory right to effective assistance of that
                     counsel. 12
                                    Strickland has two prongs. The petitioner must demonstrate
                     (1) that counsel's performance was deficient and (2) that counsel's
                     deficient performance prejudiced the defense. Strickland, 466 U.S. at 687.
                     Both showings must be made before counsel can be deemed to have
                     provided ineffective assistance, id. at 687, but a court need not address the
                     prongs in a particular order or even consider both prongs if the petitioner
                     makes an insufficient showing on one, id. at 697; see also McNelton v.
                     State, 115 Nev. 396, 403, 990 P.2d 1263, 1268 (1999). And when a
                     petitioner presents a claim of ineffective assistance of postconviction
                     counsel on the basis that postconviction counsel failed to prove the
                     ineffectiveness of his trial or appellate attorney, the petitioner must prove
                     the ineffectiveness of both attorneys.     State v. Jim, 747 N.W.2d 410, 418
                     (Neb. 2008) (stating that layered claim of ineffective assistance requires
                     evaluation at each level of counsel); see also Clabourne v. Ryan, 745 F.3d


                           12 Not  all states guarantee postconviction petitioners a statutory
                     right to the effective assistance of counsel, but in states that do, use of the
                     Strickland standard is not uncommon. See, e.g., In re Clark, 855 P.2d 729,
                     748-49 (Cal. 1993); Silva v. People, 156 P.3d 1164, 1168-69 (Colo. 2007);
                     Stovall v. State, 800 A.2d 31, 38 (Md. Ct. Spec. App. 2002); Johnson v.
                     State, 681 N.W.2d 769, 776-77 (N.D. 2004); Commonwealth v. Priovolos,
                     715 A.2d 420, 422 (Pa. 1998). The Supreme Court has also indicated that
                     Strickland applies when a state prisoner seeks federal habeas relief and
                     asserts the ineffective assistance of state habeas counsel as cause to
                     excuse the procedural default of a trial-counsel claim. Martinez, 566 U.S.
                     at , 132 S. Ct. at 1318.



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                  362, 377 (9th Cir. 2014) (observing that prejudice showing required for
                  ineffective assistance of postconviction counsel based on failure to raise
                  ineffective-assistance-of-trial-counsel claim "is necessarily connected to
                  the strength of the argument that trial counsel's assistance was
                  ineffective"), overruled on other grounds by McKinney v. Ryan,           No,
                  09-99018, 2015 WL 9466506, at *1647 (9th Cir. 2015).
                              The showing required to satisfy the prejudice prong—a
                  reasonable probability that the result of the proceeding would have been
                  different—varies depending on the context, including the proceeding in
                  which the allegedly deficient performance occurred and the nature of the
                  deficient performance. See, e.g., Missouri v. Frye, 566 U.S. „ 132 S.
                  Ct. 1399, 1409-10 (2012) (prejudice arising from deficient performance
                  based on failure to communicate plea offer to defendant); Lat.ler v. Cooper,
                  566 U.S. „ 132 S. Ct. 1376, 1384-85 (2012) (prejudice arising from
                  deficient performance in advising defendant to reject favorable plea offer);
                  Hill v. Lockhart, 474 U.S. 52, 59 (1985) (prejudice arising from deficient
                  performance that led defendant to accept plea offer rather than proceed to
                  trial); Strickland, 466 U.S. at 694 (prejudice arising from deficient
                  performance of counsel during trial); Kirksey, 112 Nev. at 998, 923 P.2d at
                  1114 (prejudice arising from deficient performance on appeal from
                  judgment of conviction). In the context of postconviction counsel, we
                  conclude that the prejudice prong requires a showing that counsel's
                  deficient performance prevented the petitioner from establishing "that the
                  conviction was obtained, or that the sentence was imposed, in violation of
                  the Constitution of the United States or the Constitution or laws of this
                  State," NRS 34.724(1). As one state court has explained, the question is

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                       more than whether "the first post-conviction relief proceeding should have
                       gone differently":
                                   [11 he ultimate issue is the fairness of the
                                   defendant's conviction and sentence. It is not
                                   enough for the defendant to prove that the first
                                   post-conviction relief proceeding should have gone
                                   differently. The defendant must also prove that
                                   the flaw in the prior post-conviction relief
                                   proceeding prevented the defendant from
                                   establishing a demonstrable and prejudicial flaw
                                   in the original trial court proceedings.
                       Grinols v. State, 10 P.3d 600, 620 (Alaska Ct. App. 2000), affd, 74 P.3d
                       889 (Alaska 2003); see also Jackson v. Weber, 637 N.W.2d 19, 23 (S.D.
                       2001) ("[I]neffective assistance of counsel at a prior habeas proceeding is
                       not alone enough for relief in a later habeas action. Any new effort must
                       eventually be directed to error in the original trial . .")." Thus, the
                       Supreme Court's observation that "klurmounting Strickland's high bar is
                       never an easy task," Padilla v. Kentucky, 559 U.S. 356, 371 (2010), is
                       particularly apt when it comes to postconviction counsel's assistance. If a
                       petitioner surmounts that high bar and proves that postconviction counsel
                       provided ineffective assistance, then the postconviction-counsel claim is



                             "The statutes in South Dakota have been amended since Jackson
                       was decided to preclude relief based on the ineffectiveness of
                       postconviction counsel. S.D. Codified Laws § 21-27-4 ("The ineffectiveness
                       or incompetence of counsel, whether retained or appointed, during any
                       collateral post-conviction proceeding is not grounds for relief under this
                       chapter.").




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                   sufficient to meet the undue-prejudice component of the good-cause
                   showing required to excuse a procedural default under NRS 34.726(1).
                         Actual prejudice to excuse procedural default under NRS 34.810
                         based on ineffective assistance of postconviction counsel
                               Similarly, a postconviction-counsel claim is sufficient to
                   establish cause to excuse the procedural default of another claim under
                   NRS 34.810(1)(b) or NRS 34.810(2) if the petitioner proves both prongs of
                   the ineffective-assistance test. See Lynch v. Ficco, 438 F.3d 35, 49 (1st Cir.
                   2006) ("In theory, Strickland attacks (including its own prejudice prong)
                   go to the separate 'cause' as opposed to the 'prejudice' standards for
                   overcoming default."); see also Clabourne, 745 F.3d at 377 (explaining that
                   to establish "cause" to allow federal habeas review of trial-counsel claim
                   that was defaulted in state court based on allegation of ineffective
                   assistance of postconviction counsel, petitioner "must establish that his
                   counsel in the state postconviction proceeding was ineffective" by
                   establishing both prongs of the Strickland test). But to excuse the
                   procedural default of another claim under NRS 34.810, the petitioner also
                   must demonstrate actual prejudice. NRS 34.810(1)(b), (3).
                               If a petitioner who seeks to excuse a procedural default based
                   on ineffective assistance of counsel makes the showing of prejudice
                   required by Strickland, he also has met the actual prejudice showing
                   required to excuse the procedural default. 14 See, e.g., Joseph v. Coyle, 469


                         14 0ther courts have suggested that actual prejudice requires a
                   greater showing than that required for the prejudice prong of an
                   ineffective-assistance claim, see, e.g., United States v. Dale, 140 F.3d 1054,
                                                                       continued on next page . . .


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                F.3d 441, 462-63 (6th Cr. 2006) (explaining that because the Supreme
                Court has held in Strickler v. Greene, 527 U.S. 263 (1999), that the
                materiality prong of a Brady 15 violation parallels the prejudice showing
                required to excuse a procedural default, the prejudice prong of the
                ineffective-assistance test, which is similar to the Brady materiality prong,
                also parallels the prejudice showing required to excuse a procedural
                default); Lynch, 438 F.3d at 49-50 (same); Mincey v. Head, 206 F.3d 1106,
                1147 n.86 (11th Cir. 2000) (same); accord State u. Bennett, 119 Nev. 589,
                599, 81 P.3d 1, 8 (2003) (following Strickler and equating Brady
                materiality with the prejudice required to excuse a procedural default
                under NRS 34.810). 16
                            With this foundation in mind, we turn to Rippo's claims and
                whether he has met both prongs of the ineffective-assistance test with
                respect to postconviction counsel and therefore has demonstrated cause


                   . continued
                1056 n.3 (D.C. Cir. 1998); see Armstrong v. Kemna, 590 F.3d 592, 606 (8th
                Cir. 2010) (citing inconsistent decisions on the issue by different Eighth
                Circuit panels), but we are not persuaded that there is a useful distinction
                to be made,

                      i5Brady v. Maryland, 373 U.S. 83 (1963).

                      16 This
                            court previously observed in Lozada v. State, 110 Nev. 349,
                358, 871 P.2d 944, 949-50 (1994), that the two prejudice showings are
                "separate and distinct" but also suggested that when "both prejudice
                requirements happen to address the same concern," then the same
                showing will satisfy them. To the extent that these observations in
                Lozada are inconsistent with this decision, we disavow them.




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                and prejudice to excuse the applicable procedural bars based on the
                ineffective assistance of postconviction counse1. 17 Applying the two-prong
                test set forth above, we conclude that Hippo failed to show that
                postconviction counsel was ineffective, and that he was not entitled to an
                evidentiary hearing on the allegations related to postconviction counsel
                because they either lack merit or were not supported by sufficient factual
                allegations, see Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225
                (1984) (stating that postconviction petitioner is entitled to evidentiary
                hearing when he asserts specific factual allegations that, if true, would
                entitle him to relief). We therefore conclude that although Hippo raised
                his postconviction-counsel claims within a reasonable time after they
                became available, he failed to demonstrate undue prejudice to excuse the
                procedural default under NRS 34.726(1) or cause and actual prejudice to
                excuse the procedural defaults under NRS 34.810. 18



                      17 Rippo's opening brief focuses primarily on the substantive merits
                of the grounds asserted in the petition, with limited attention paid to the
                threshold cause-and-prejudice inquiry based on the allegedly ineffective
                assistance provided by prior postconviction counsel. While the assertions
                of ineffective assistance of postconviction counsel in Rippo's briefs are not
                as detailed or focused as we would prefer, they also are not the kind of
                "pro forma, perfunctory" assertions of ineffective assistance that we
                discouraged in Evans v. State, 117 Nev. 609, 647, 28 P.3d 498, 523 (2001).

                      18 Tothe extent that Rippo relies on arguments other than ineffective
                assistance of postconviction counsel to establish cause and prejudice as to
                any particular defaulted ground for habeas relief, those arguments are
                addressed in the discussion of each defaulted claim.




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                   Judicial bias (claim 1)
                                 In claim 1 of his petition, Rippo alleged that his convictions
                   and death sentences are invalid because the trial judge was biased and
                   that trial and appellate counsel were ineffective because they failed to
                   adequately challenge the trial judge's alleged bias He argues on appeal
                   that the district court erred in applying the procedural default under NRS
                   34.810(2) and the law-of-the-case doctrine to this claim.
                                 The judicial-bias claim is based on allegations that the trial
                   judge (1) was the subject of a federal investigation at the time of trial,
                   (2) knew that the Clark County District Attorney's Office and/or the Las
                   Vegas Metropolitan Police Department (Metro) were involved in the
                   investigation but failed to disclose that fact, and (3) was acquainted with a
                   trial witness (Denny Mason) but failed to disclose that fact because it
                   would have incriminated the judge in the federal investigation. This claim
                   was raised on direct appeal and rejected by this court. Rippo v. State, 113
                   Nev. 1239, 1248-50, 946 P.2d 1017, 1023-24 (1997). Normally, the law-of-
                   the-case doctrine would preclude further litigation of this issue.   See Hall
                   v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975). Rippo argues,
                   however, that the doctrine should not apply because the facts are
                   substantially different than they were on direct appeal and because our
                   prior decision was based on false representations by the State and the
                   trial judge. See Hsu v. Cty. of Clark, 123 Nev. 625, 630, 173 P.3d 724, 729
                   (2007) (observing that federal courts recognize exception to the doctrine
                   when "subsequent proceedings produce substantially new or different
                   evidence").



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                              The first and third allegations above were raised in Rippo's
                  opening brief on direct appeal. We rejected both. Rippo, 113 Nev. at 1248,
                  946 P.2d at 1023 (concluding that "[a] federal investigation of a judge does
                  not by itself create an appearance of impropriety sufficient to warrant
                  disqualification"); id. at 1249, 946 P.2d at 1024 (observing that "no
                  evidence exists, beyond the allegations set forth by the defense, that [the
                  trial judge] knew either Denny Mason or his alleged business partner,"
                  but that "[e]ven if a relationship existed, Rippo has not shown that the
                  judge's alleged acquaintance with Mason's business partner would result
                  in bias"). There are no substantially different facts alleged now that
                  would warrant an exception from the law-of-the-case doctrine with respect
                  to our prior decision regarding these allegations.
                              The allegation that the trial judge failed to disclose that he
                  knew that the prosecutor's office and/or Metro were involved in the federal
                  investigation also was raised in Rippo's opening brief on direct appeal. We
                  observed that there was no evidence "that the State was either involved in
                  the federal investigation or conducting its own investigation of [the trial
                  judge]."   Id. at 1248, 946 P.2d at 1023. Flippo now asserts that the
                  prosecutors and the trial judge lied about the State's involvement in the
                  federal investigation, relying on the federal government's trial
                  memorandum and a defense motion that were filed in the trial judge's
                  federal prosecution and testimony presented in the federal trial, which
                  took place after Rippo's trial. The documents and testimony indicate that,
                  as part of a sting operation, an unnamed chief or deputy district attorney
                  worked with federal authorities to bring a fictitious case before the trial
                  judge and that the judge saw a person wearing a Metro jacket when FBI

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                agents executed a search warrant at his home. It is not entirely clear that
                this new information establishes that the State was engaged in its own
                investigation of the trial judge or that there was a joint state/federal
                investigation as opposed to a federal investigation in which some state
                actors provided assistance to the federal authorities. But even if it does,
                the facts remain insufficient to establish judicial bias.
                            Rippo's judicial-bias claim is not that the trial judge was
                biased against him specifically but more that the investigation and
                indictment created a "compensatory, camouflaging bias"—that the trial
                judge would be biased against criminal defendants at the time to curry
                favor with the agencies investigating him and prove that he was not soft
                on criminal defendants.      Bracy v. Gramley, 520 U.S. 899, 905 (1997)
                (describing similar claim of judicial bias). Taking Rippo's allegations as
                true, there remains "[n]o factual basis. . . for Rippo's argument that [the
                trial judge] was under pressure to accommodate the State or treat
                criminal defendants in state proceedings less favorably" or that he was
                biased against Rippo because of the investigation and indictment. Rippo,
                113 Nev. at 1248, 946 P.2d at 1023. Such speculative allegations simply
                are not sufficient to warrant discovery or an evidentiary hearing on this
                issue as they do not support the assertion that the trial judge was actually
                biased in this case.      Cf. Bracy, 520 U.S. at 905-09 (holding that a
                petitioner had demonstrated good cause for discovery to prove a
                "compensatory, camouflaging bias" on the part of a trial judge who had
                been indicted (and later convicted) of taking bribes from criminal
                defendants to fix cases where petitioner "support[ed] his discovery request
                by pointing not only to [the trial judge's] conviction for bribe taking in

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                other cases, but also to additional evidence. . . that lend[ed] support to his
                claim that [the trial judge] was actually biased in petitioner's own case,"
                including "specific allegations' that [petitioner's] trial attorney, a former
                associate of [the trial judge's] in a law practice that was familiar and
                comfortable with corruption, may have agreed to take [petitioner's] capital
                case to trial quickly so that petitioner's conviction would deflect any
                suspicion [that] the rigged. . . cases might attract"). Hippo therefore has
                not demonstrated grounds to warrant reconsideration of our prior decision
                in the face of the law-of-the-case doctrine.ls




                      19 Rippo'sreliance on United States v. Jaramillo, 745 F.2d 1245 (9th
                Cir. 1984) is unavailing. In that case, a federal district court judge
                declared a mistrial in a criminal case upon learning that he had been
                indicted by a federal grand jury. Id. at 1246. Rejecting a double-jeopardy
                claim, the appellate court determined that the trial judge "properly
                concluded that a reasonable person with knowledge of all the facts
                pertaining to the nature of the indictment would question the ability of a
                judge facing prosecution to remain impartial as the presiding jurist in a
                criminal proceeding." Id. at 1248. The court noted the "historically
                unique problems [the trial judge] faced as a judge indicted on criminal
                charges which called into question his moral fitness to sit as a judge." Id.
                at 1249. Here, in contrast, the trial judge was not indicted until after
                Hippo's trial. And on direct appeal, we rejected the idea that the
                investigation alone would have warranted his disqualification in all
                criminal trials. Rippo, 113 Nev. at 1248-49, 1249 & n.1, 946 P.2d at 1023
                & n.1 ("We further note that [the trial judge's] disqualification in the
                instant case would lead to his disqualification in all criminal cases he
                heard while subject to the federal investigation. Such a result would be
                insupportable.").




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                               Hippo also has not demonstrated good cause and actual
                  prejudice to excuse his failure to re-raise the judicial-bias claim in the first
                  habeas petition. He asserts that prior postconviction counsel provided
                  ineffective assistance in failing to further investigate the facts
                  surrounding the judicial-bias claim and failing to re-raise the claim in the
                  first petition or to repackage it as a trial- or appellate-counsel claim. We
                  are not convinced that prior postconviction counsel was incompetent for
                  failing to repackage the judicial-bias claim as a trial- or appellate-counsel
                  claim for two reasons. First, both trial and appellate counsel raised the
                  judicial-bias issue, so any ineffective-assistance claim would have been
                  belied by the record. Second, after evaluating trial and appellate counsel's
                  performance based on "counsel's perspective at the time," Strickland, 466
                  U.S. at 689, it is not clear that trial and appellate counsel were deficient in
                  failing to present the evidence that is now offered in support of the
                  judicial-bias claim. The new information is based on documents filed in
                  connection with and testimony at the federal trials in 1997 and 1998, after
                  Hippo's trial. That evidence clearly was not available to trial counsel,
                  making it difficult to fault trial counsel for failing to discover and present
                  it. Even if some of the documents were filed in the federal case while the
                  direct appeal was pending, appellate counsel could not have expanded the
                  record before this court to include evidence that was not part of the trial
                  record, see Carson Ready Mix, Inc. v. First Nat'l Bank of Nev., 97 Nev. 474,
                  476-77, 635 P.2d 276, 277-78 (1981), making it difficult to fault appellate
                  counsel's performance. Granted, the new information could have been
                  discovered in time for prior postconviction counsel to use it as grounds to
                  reassert the judicial-bias claim in the first petition, but we are not

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                  convinced that prior habeas counsel's failure to further investigate and re-
                  assert this claim was objectively unreasonable. The mere omission of a
                  claim that has been further developed by new counsel "'does not raise a
                  presumption that prior habeas corpus counsel was incompetent.'           In re
                  Reno, 283 P.3d 1181, 1210 (Cal. 2012) (quoting In re Clark, 855 P.2d 729,
                  749 (Cal. 1993)). Because this court had rejected the generic proposition
                  that the trial judge had to be disqualified in all criminal cases while he
                  was subject to the federal investigation, Rippo, 113 Nev. at 1248, 1249 &
                  n.1, 946 P.2d 1023 & n.1, and the new information still does not establish
                  bias in this case, Hippo has not demonstrated that the judicial-bias claim
                  is "one that any reasonably competent [habeas] counsel would have"
                  reasserted or that the claim would have entitled him to relief, Reno, 283
                  P.3d at 1211. Therefore, the postconviction-counsel claim lacks merit and
                  is not adequate cause to excuse the procedural default of the judicial-bias
                  claim under NRS 34.810(2).
                  Prosecutorial misconduct (claims 2 and 9)
                              Hippo raised numerous allegations of prosecutorial misconduct
                  that appear in claims 2 and 9 in his second habeas petition. Those
                  allegations are that the State violated Brady v. Maryland, 373 U.S. 83
                  (1963) (claim 2); the State failed to correct false testimony by its witnesses
                  (claim 2); the State failed to disclose and misrepresented its involvement
                  in the federal investigation of the trial judge (claim 2); the prosecutors
                  made improper arguments to the jury (claim 2); and the State intimidated




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                a defense witness (claim 9). 20 These claims were primarily raised as trial
                error, but claim 2 also included summary allegations that trial and
                appellate counsel were ineffective to the extent that they did not litigate or
                failed to fully litigate or uncover the misconduct alleged in that claim. The
                district court determined that both claims 2 and 9 were procedurally
                defaulted under NRS 34.810(2) and that claim 2 was also defaulted under
                NRS 34.810(1)(b). The court also observed that several of the misconduct
                allegations were subject to the law-of-the-case doctrine. See Hall v. State,
                91 Nev. 314, 315, 535 P.2d 797, 798 (1975).
                      Brady allegations
                            We first address the arguments in claim 2 that are based on
                Brady violations. "Brady and its progeny require a prosecutor to disclose
                evidence favorable to the defense when that evidence is material either to
                guilt or to punishment." State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8
                (2003) (quoting Mazzan v. Warden, 116 Nev. 48, 66, 993 P.2d 25, 36
                (2000)). To establish a Brady violation, the defendant must show (1) that
                the State withheld evidence, (2) which is favorable to the accused because


                      20Included in his allegations of prosecutorial misconduct, Rippo
                claims that the State violated a discovery order (claim 2) as evidenced by a
                series of nondisclosures concerning the existence of a jailhouse informant,
                a forensic report, exculpatory statements a witness made to the
                prosecutor, and the State's release of "twelve inches of document discovery
                on the day of calendar call." Absent from Rippo's claim, however, is any
                allegation of prejudice even assuming his contentions are true.
                Accordingly, he has not demonstrated that postconviction counsel was
                ineffective in this regard.




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                it is exculpatory or impeaching, and (3) that prejudice resulted because the
                evidence was material, i.e., that there is a reasonable possibility of a
                different result had there been disclosure.   Id. at 599-600, 81 P.3d at 8.
                When a Brady claim is raised in an untimely or successive petition, the
                cause-and-prejudice showing can be met based on the second and third
                prongs required to establish a Brady violation. Id. at 599, 81 P.3d at 8.
                The Brady allegations here involve claims that the State withheld
                evidence that could have been used to impeach several of the State's
                witnesses: Thomas Sims, Thomas Christos, and Michael Beaudoin. 21
                               The Brady allegations related to Sims and Christos focus on
                whether the State withheld evidence of cooperation agreements whereby
                these witnesses received favorable treatment in exchange for testifying. A
                promise made by the prosecution to a key witness in exchange for the
                witness's testimony constitutes impeachment evidence that must be
                disclosed under Brady. Giglio v. United States, 405 U.S. 150, 154-55
                (1972). As the district court observed, Sims and Christos were thoroughly

                      21 Thepetition below made summary allegations (claim 2, II 13, 14)
                that the State failed to disclose exculpatory or impeachment evidence
                related to Donald Hill (aka William Burkett) and David Levine, but it
                included no specific allegations regarding the Brady violation related to
                Hill and made a summary allegation that Levine "expected to receive a
                favorable parole recommendation in exchange for his testimony." In his
                appellate briefs, Rippo argues that both witnesses testified falsely. The
                allegation as to Hill appears to involve a post-trial recantation, while the
                allegation as to Levine appears to involve a Giglio claim—that the
                prosecution knowingly used false testimony. See Giglio v. United States,
                405 U.S. 150 (1972). Those arguments are addressed infra.




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                "cross-examined [during trial] regarding continuances, quashed bench
                warrants, and future benefits" with respect to other criminal charges.
                Both witnesses denied being promised, expecting, or receiving any benefits
                in exchange for their testimony. A prosecutor also testified that Sims was
                not promised anything in exchange for his testimony, and the jury was
                aware that Sims' pending felony case had been continued repeatedly over
                the course of several years, the extent to which the delay in that
                proceeding may have benefited him, and the prosecutor's reasons for
                agreeing to the continuances. 22 Hippo's allegations are based on records
                related to the disposition of various criminal cases involving Sims and
                Christos before and after they testified. But those favorable dispositions
                are a matter of public record that was not and could not be withheld by the
                State. They also do not suffice to establish either explicit or tacit
                agreements between the State and these witnesses in exchange for their
                testimony.    See Bell v. Bell,    512 F.3d 223, 233-34 (6th Cir. 2008)
                (concluding that handling of witness's case does not prove existence of an
                agreement between prosecution and witness); Middleton v. Roper, 455
                F.3d 838, 854 (8th Cir. 2006) (concluding that speculation based on
                sequence of events in which witnesses obtained favorable dispositions of
                criminal charges after testifying against defendant was not sufficient to

                      22 Rippo suggests that postconviction counsel was ineffective for
                failing to raise a trial-counsel claim based on trial counsel's failure to have
                the prosecutor's testimony read into the record to impeach Sims. The
                record, however, shows that the prosecutor testified before the jury at
                trial.




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                 demonstrate that prosecution withheld evidence of deal offered to
                 witnesses in exchange for their testimony); Shabazz v. Artuz, 336 F.3d
                 154, 165 (2d Cir. 2003) ("The government is free to reward witnesses for
                 their cooperation with favorable treatment in pending criminal cases
                 without disclosing to the defendant its intention to do so, provided that it
                 does not promise anything to the witnesses prior to their
                 testimony.... [The fact that a prosecutor afforded favorable treatment to
                 a government witness, standing alone, does not establish the existence of
                 an underlying promise of leniency in exchange for testimony."). Rippo
                 therefore has not made sufficient factual allegations as to Sims and
                 Christos to support a finding that the State violated Brady. Nor are the
                 speculative allegations offered 12 years after trial based on public
                 information that has long been available sufficient to warrant an
                 evidentiary hearing.   See Hargrove v. State, 100 Nev. 498, 502-03, 686
                 P.2d 222, 225 (1984). For these reasons, the Brady claim as to these
                 witnesses is not sufficient itself to establish cause and prejudice. 23 The
                 deficiencies in Rippo's Brady claim as to these witnesses also undermine
                 his effort to rely on the alleged ineffective assistance of postconviction




                       23 As a separate but related subclaim, Rippo argues that the State
                 violated Brady by allowing Sims and Christos to testify falsely that they
                 received no promises of leniency or favorable treatment in exchange for
                 their testimony. This argument fails, however, as Rippo has not alleged
                 sufficient facts to support the allegation that Sims and Christos testified
                 falsely.




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                counsel as cause to excuse his failure to raise the Brady claim in the first
                petition.
                               The Brady allegation involving Beaudoin is similar to those
                involving Sims and Christos, but where Hippo failed to allege any
                additional facts sufficient to establish a Brady violation related to those
                witnesses, Hippo has offered additional specific allegations with respect to
                Beaudoin. With his petition, Hippo submitted a declaration dated May 18,
                2008, in which Beaudoin indicates that he was arrested on felony drug
                charges after he began cooperating with the prosecution in this case and
                that he contacted one of the attorneys prosecuting Hippo "at some point
                before [he] was scheduled to testify" and asked for help since he was
                helping the prosecution by testifying against Rippo. 24 According to the
                declaration, as a result of that call, the district attorney's office dropped
                one of the charges and reduced the other from a felony to a gross
                misdemeanor, and Beaudoin avoided going to prison on the charges. The
                declaration indicates that if "anyone had bothered to ask [him] about these
                matters, [he] would have provided them with all of the information that is
                contained in [the] declaration." 25 The latter representation seems
                questionable since Beaudoin was asked about inducements at trial and

                      24 TheState does not acknowledge or address the declaration in its
                appellate brief, but we are not convinced that an evidentiary hearing is
                warranted on this claim based solely on that omission.

                      25 Beaudoin also states in the declaration that he believes that Hippo
                "is responsible for the crime" but does not "believe that he should receive
                the death penalty because it's not going to bring Denise back."




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                 testified that there had been none. It is entirely possible that his trial
                 testimony was truthful because the declaration does not indicate that the
                 prosecutor made any explicit or tacit promises to Beaudoin before he
                 testified. As discussed with respect to the Brady claim involving Sims and
                 Christos, absent such a promise by the prosecution, there was no Brady
                 violation. Regardless, we also are not convinced that the information in
                 the Beaudoin declaration is material as required to establish a Brady
                 violation.
                              Beaudoin had already testified before the grand jury and his
                 trial testimony was consistent with that prior testimony, thus
                 undermining the impeachment value of the information in the
                 postconviction declaration, and Beaudoin was not such a key witness for
                 the prosecution that additional impeachment of him beyond that
                 presented at trial (his criminal record) would lead to a reasonable
                 possibility of a different outcome at trial.   CI Harris v. Wier, 553 F.3d
                 1028, 1033-34 (6th Cir. 2009) (concluding that there was reasonable
                 probability of different outcome at trial had prosecution disclosed promises
                 of leniency or favorable treatment in exchange for witness's testimony
                 where witness provided only eyewitness account of shooting and identified
                 defendant as the shooter, providing only evidence that directly linked
                 defendant to the shooting). Thus, even accepting the representations in
                 the declaration as true and assuming that there was a promise of
                 favorable treatment in exchange for Beaudoin's testimony shortly before
                 he testified at trial, the failure to disclose that promise does not
                 undermine our confidence in the jury's verdict.    See Kyles v. Whitley, 514
                 U.S. 419, 434-35 (1995) (explaining that materiality prong of Brady

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                     involves whether the violation undermines confidence in the verdict). For
                     these reasons, we conclude that this Brady claim lacks merit and cannot
                     itself establish cause and prejudice and that Hippo has not demonstrated
                     that postconviction counsel was ineffective in failing to raise this Brady
                     claim.
                              False testimony
                                   Hippo also alleges prosecutorial misconduct related to three
                     jailhouse informants: David Levine, James Ison, and Donald Hill (aka
                     William Burkett). These witnesses testified about admissions that Hippo
                     made to them while he was incarcerated pending trial in this case. Each
                     informant testified that he had known Hippo before the murders and that
                     Hippo admitted his involvement in the murders. Based on handwritten
                     declarations provided by Levine, Ison, and Hill in connection with the
                     second postconviction petition, Rippo asserts that these witnesses gave
                     false testimony. We first address the allegations involving Levine and
                     Ison and then turn to those involving Hill.
                                   Hippo alleges that prosecutors or police officers provided
                     Levine and Ison with information about the case that they then related at
                     trial as information obtained from Rippo, making their testimony appear
                     more credible. Hippo asserts that Levine and Ison could have been
                     impeached with this information had it been disclosed to the defense.
                     Although couched in terms of the State's alleged failure to disclose
                     material exculpatory and impeachment information, Hippo's claim speaks
                     more to the prosecution knowingly presenting false or misleading
                     testimony. See Giglio v. United States, 405 U.S. 150, 153 (1972); see also
                     Napue v. Illinois, 360 U.S. 264, 269 (1959) (requiring prosecutor to correct

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                      testimony if he learns of its falsity after the testimony has been
                      presented). Where the prosecution knowingly presents false or misleading
                      testimony or fails to correct false testimony after learning of its falsity, a
                      new trial is required if "the false testimony used by the State in securing
                      the conviction. . . may have had an effect on the outcome of the trial."
                      Napue, 360 U.S. at 272. The claim is procedurally barred under both NRS
                      34.726 and NRS 34.810. Hippo appears to press two arguments on appeal
                      to excuse the procedural bars.
                                    First, he relies on the alleged withholding of evidence by the
                      State.   Cf. State v. Bennett,   119 Nev. 589, 599, 81 P.3d 1, 8 (2003)
                      (explaining that withholding of favorable evidence may establish cause for
                      raising Brady claim in an untimely and/or successive petition). This
                      argument is insufficient because any falsity in Levine's and Ison's
                      testimony about Hippo's admissions would have been known to Hippo at
                      the time that the witnesses testified.     Cf. West v. Johnson, 92 F.3d 1385,
                      1398-99 (5th Cir. 1996) (rejecting Brady claim that prosecution withheld
                      evidence suggesting that defendant fabricated his confession because
                      defendant "knew whether or not he had taken the necklace"); United
                      States v. Diaz, 922 F.2d 998, 1007 (2d Cir. 1990) (concluding that there
                      was no improper suppression of evidence under Brady where evidence at
                      issue involved defendant's whereabouts, which were within defendant's
                      knowledge).
                                    Second, Rippo relies on the alleged ineffective assistance of
                      postconviction counsel to excuse the procedural bars to consideration of
                      the claim as to Levine and Ison. The district court apparently rejected
                      this argument on the prejudice prong of the ineffective-assistance claim,

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                p7.
                 concluding that the declarations offered by Rippo do not undermine
                 confidence in the verdict because Levine and Ison have not recanted their
                 testimony that Rippo admitted his involvement in the murders. We agree
                 with the district court's reading of the declarations provided by Levine and
                 Ison.
                                 Although the information in the declarations could have been
                 used to impeach these witnesses had the defense been aware of it, we are
                 not convinced that there is a reasonable likelihood that the allegedly false
                 portions of Levine's or 'son's testimony could have affected the jury's
                 verdict (GigliolNapue standard) or that there is a reasonable possibility of
                 a different outcome had the information been disclosed (Brady standard).
                 Both witnesses were impeached regarding discrepancies between their
                 statements to police and their trial testimony. Their credibility was
                 enhanced more by their long-term acquaintance with Rippo than by the
                 details that their declarations bring into question. In light of those
                 circumstances and the fact that neither witness has recanted his
                 testimony that Hippo confessed to his involvement in the murders, we
                 agree with the district court's assessment that Hippo cannot demonstrate
                 prejudice based on postconviction counsel's failure to raise claims related
                 to Levine's and Ison's testimony. 26 Accordingly, the postconviction-counsel




                         26 Werecognize that some of the details brought into question by the
                 declarations arguably corroborated Hunt's testimony and therefore lent
                 credibility to her account of the murders, but we are not convinced that
                 any of those corroborating elements in themselves were of such
                                                                   continued on next page . . .


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                 claim lacks merit and therefore is not cause to excuse the procedural
                 default of this claim.
                              Rippo's allegations as to Hill are of a different nature in that
                 they appear to involve a partial recantation rather than the prosecution
                 withholding evidence or knowingly presenting false testimony. Hill's
                 postconviction declaration states that, contrary to his testimony at trial,
                 Rippo never suggested that he wanted to have Hunt killed and that as far
                 as Hill knew at the time, Hunt was not going to testify against Rippo. 27
                 The declaration does not suggest that the prosecution knew or had reason
                 to know that this part of Hill's testimony was false, and although this
                 claim is included in a section of Rippo's appellate brief that is focused on
                 prosecutorial misconduct, Rippo does not argue that the prosecution was
                 aware that Hill testified falsely or suppressed evidence that could have
                 been used to impeach Hill. 28 Nor does the declaration call into question


                 • . . continued
                 significance that undermining them would also undermine our confidence
                 in the jury's verdict.

                       27 The declaration also states that Hill's girlfriend was not
                 incarcerated at the women's prison in Carson City with Hunt during the
                 relevant time period. Hill testified similarly at trial: when asked at trial
                 whether his fiancée was still at the women's prison, he responded that she
                 was not.
                       28 Rippo'sappellate brief suggests that Hill revealed his status as a
                 "career criminal informant" for the first time on cross-examination at trial.
                 But in the trial testimony cited in the brief, Hill, who had been
                 incarcerated for all but nine months between 1982 and 1996, testified that
                 he had acted as an informant in two cases, including this one. The
                                                                   continued on next page . . .


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                Hill's trial testimony that Rippo admitted that he strangled the victims
                and put their bodies in a closet. Given these deficiencies, we cannot
                conclude that the district court erred in determining that Rippo had not
                demonstrated good cause and prejudice to excuse the procedural default of
                this claim.
                      Prosecutorial misconduct in closing argument
                              Rippo also asserts that the prosecutors committed misconduct
                during guilt- and penalty-phase argument. We first address the claims
                that had been raised before on direct appeal and then turn to the new
                claims.
                              The allegations of prosecutorial misconduct that were raised
                and rejected on direct appeal, Rippo v. State, 113 Nev. 1239, 1253-55 &
                n.5, 946 P.2d 1017, 1026-28 & n.5 (1997), are subject to the law-of-the-case
                doctrine, which precludes further litigation of those claims.     See Hall v.
                State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975). Given that further
                litigation of those claims would have been barred by the law-of-the-case
                doctrine, we are not convinced that postconviction counsel's failure to raise
                them again fell outside the wide range of professionally competent
                assistance. Nor are we convinced by Rippo's suggestion that he has good
                cause to raise these claims again because they must be considered
                cumulatively. In particular, the assertion of "cumulative error" as cause


                . . . continued
                citation therefore does not appear to support the characterization of Hill
                as a "career criminal informant."




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                 to raise these claims anew ignores our prior determination that there was
                 no error with respect to the claims that previously were rejected on appeal
                 on their merits. Rippo does not explain how argument by a prosecutor
                 that has been found not to be error can now be aggregated to comprise a
                 new claim that falls outside the law-of-the-case doctrine.   See In re Reno,
                 283 P.3d 1181, 1223-24 (Cal. 2012) (rejecting "cumulative error"
                 explanation for capital petitioner to raise a claim again that was rejected
                 on its merits in a prior appeal and explaining that such a claim "cannot
                 logically be used to support a cumulative error claim because [the
                 appellate court has] already found there was no error to cumulate").
                             One prosecutorial-misconduct claim that was raised on appeal
                 (the characterization of Rippo as "evil" during penalty-phase argument)
                 would not have been subject to the law-of-the-case doctrine because it was
                 not preserved, and therefore this court chose not to consider it on the
                 merits. 113 Nev. at 1260, 946 P.2d at 1030. But that claim and the other
                 new claims of prosecutorial misconduct are procedurally barred under
                 NRS 34.726 and NRS 34.810 because they were untimely and could have
                 been raised before. Rippo generally asserts that postconviction counsel
                 was ineffective for omitting trial- or appellate-counsel claims based on
                 these alleged instances of prosecutorial misconduct. We conclude,
                 however, that Hippo has not demonstrated any misconduct (i.e., error) as
                 to the challenged comments by the prosecutor; therefore he has not met
                 either prong of the omitted trial-counsel claim or the performance prong as
                 to the omitted appellate counsel The postconviction-counsel claim
                 therefore lacks merit and is not sufficient cause to excuse the procedural
                 default of these trial-error and ineffective-assistance claims regarding

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                  prosecutorial misconduct in argument at the guilt and penalty phases.
                  And in the absence of any error, those claims also could not be cumulated
                  with the instances of prosecutorial misconduct that were found to have
                  merit on direct appeal (the reference to evidence not presented at trial and
                  the comment on Rippo's failure to call a witness) but were detei mined to
                  be harmless both individually and cumulatively, see Rippo, 113 Nev. at
                  1253-55 & n.5, 946 P.2d at 1026-28 & n.5. On that basis, Rippo also
                  cannot rely on "cumulative error" as cause to raise the new claims of
                  prosecutorial misconduct. See Reno, 283 P.3d at 1223-24.
                        Witness intimidation
                              The allegation of improper witness intimidation (claim 9) was
                  rejected by this court on direct appeal. Rippo, 113 Nev. at 1251, 946 P.2d
                  at 1025. Given that further litigation of the issue is precluded by the law-
                  of-the-case doctrine, see Hall, 91 Nev. at 315, 535 P.2d at 798, we are not
                  convinced that postconviction counsel's failure to re-raise this issue fell
                  outside of the wide range of professionally competent assistance. We also
                  reject the idea that the need to consider claims of prosecutorial misconduct
                  cumulatively provides cause to raise this claim again where it was rejected
                  previously on the merits. See Reno, 283 P.3d at 1223-24.
                  Failure to investigate and present mitigating evidence (claim 3)
                              Rippo argues that the district court erred in procedurally
                  defaulting his claim that trial counsel were ineffective for failing to
                  investigate and present mitigating evidence and submit a special verdict
                  form listing possible mitigating circumstances. To excuse the procedural
                  default, Rippo asserts that postconviction counsel was ineffective for
                  failing to raise the trial-counsel claim. We conclude that this claim is not

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                        sufficient to excuse the procedural default because Hippo fails to meet
                        either prong of the Strickland test to support a viable trial-counsel claim
                        and therefore cannot demonstrate that postconviction counsel was
                        ineffective in failing to raise it.
                                     Hippo claims that postconviction counsel should have asserted
                        an ineffective-assistance claim based on trial counsel's failure to present
                        evidence that he suffered from a neuropsychological impairment. As
                        support, he relies on a neuropsychological evaluation conducted 12 years
                        after trial, which concluded that he had "mild neurocognitive dysfunction"
                        and Attention Deficit Hyperactivity Disorder and Obsessive-Compulsive
                        Disorder. But thefl reasonableness of counsel's performance is evaluated
                        "from counsel's perspective at the time," without "the distorting effects of
                        hindsight." Strickland v. Washington, 466 U.S. 668, 689 (1984). At the
                        time of trial in this case, counsel had access to multiple psychological
                        evaluations of Hippo from years before trial and just before trial, none of
                        which revealed any psychoses, neuropsychological impairments, or major
                        affective disorders. Considering the evaluations available to trial counsel,
                        we cannot fault postconviction counsel for not asserting that trial counsel's
                        failure to seek additional evaluations fell outside "the wide range of
                        reasonable professional assistance." Id.
                                     Hippo further claims that postconviction counsel should have
                        asserted an ineffective-assistance claim based on trial counsel's failure to
                        present testimony from a violence risk assessment expert and an
                        institutionalization expert to establish that he would function well in a
                        structured prison setting. Trial counsel did present some lay testimony to
                        this effect from a prison vocational instructor who had interacted with

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             441,1
                Rippo. We are not convinced that trial counsel's failure to present an
                expert to provide similar testimony was unreasonable. Nor does the
                failure to present such testimony undermine our confidence in the
                outcome of the penalty hearing, see id. at 694 ("A reasonable probability is
                a probability sufficient to undermine confidence in the outcome."),
                particularly since any expert opinion would have been challenged on cross-
                examination with evidence that Rippo was found with weapons in his cell
                and had exposed himself to and threatened to kill a prison guard, the
                same as the witness who did testify at the penalty hearing. For these
                reasons, the ineffective-assistance-of-trial-counsel claim lacks merit, and
                we cannot fault postconviction counsel for failing to assert it. 29
                             Rippo also claims that postconviction counsel should have
                asserted an ineffective-assistance claim based on trial counsel's failure to


                      29 Rippo  also claims that postconviction counsel should have
                challenged trial counsel's failure to prepare a social history and provide it
                to a mental health expert for evaluation. As support, he provided a
                lengthy social history and an evaluation from psychologist Dr. Jonathan
                Mack, who opined that Rippo experienced "significant psychosocial trauma
                in the home of his mother and step-father, and possibly earlier in the
                home of his biological father and mother," which "caused a free floating
                anxiety" leading to obsessive-compulsive and drug-addictive tendencies,
                and that Rippo had a suppressed variant of post-traumatic stress disorder
                that was difficult to diagnosis perhaps due to "conscious and unconscious
                repression of family-of-origin trauma." This new mitigation evidence lacks
                sufficient persuasiveness to have altered the outcome of the penalty
                hearing had it been presented to the jury. We therefore are not convinced
                that postconviction counsel was ineffective in omitting this trial-counsel




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                present evidence that Hippo was sexually and physically abused by his
                stepfather James Anzini At the penalty phase, trial counsel presented
                one witness who testified about Hippo's childhood and upbringing, his
                sister Stacie. She described Hippo as the "family clown" and a "great
                brother" who was protective of and encouraging to his sisters. She also
                testified about their childhood, explaining that life with Anzini was
                difficult. He was a compulsive gambler and often took Hippo's allowance
                and paychecks to support his gambling habit. He frequently pushed Hippo
                around and told him that he would never amount to anything, and he
                degraded women in front of Hippo. So trial counsel did present some
                evidence at the penalty phase on the topic of Hippo's childhood and
                upbringing. Hippo argues, however, that the presentation fell short due to
                trial counsel's failure to adequately investigate and interview his family
                members and that reasonably competent counsel would have uncovered
                evidence of sexual and physical abuse.
                            To support his claim, Hippo filed several declarations by
                various family members, including his sister Stacie; his father; his former
                stepmother; and Anzini's ex-wife, sister, brother-in-law, former sister-in-
                law, and sons (Hippo's stepbrothers). In her declaration, Stacie recalls
                that Anzini was abusive in that he was demeaning toward women; played
                games that frightened her, her sister, and Hippo; and was extremely
                aggressive when he played board games with the children, calling Hippo a
                "sissy" when he lost to his sisters. She states that Anzini enjoyed scaring
                and taunting the children and that their mother and Anzini had violent
                arguments. She describes Anzini as physically abusive to the children but
                that she was unaware of "what, if anything [Anzini] did to [Hippo] that

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                                              tvn
                may have had any sexual overtones." In the other declarations, Anzini is
                described as physically and verbally abusive. Most of the declarants never
                saw instances of physical abuse involving Hippo, but they suspected that
                Anzini had physically abused Hippo based on his general character for
                such abuse or because they saw bruises on Hippo or his sisters that they
                felt were not sufficiently explained. Many of the declarants also suggested
                that Hippo had been a happy, good boy and that being raised by Anzini
                must have changed him. None of the declarations suggest that Anzini
                sexually abused Hippo.
                            We first address the performance prong on the omitted trial-
                counsel claim as it informs whether postconviction counsel's omission of
                that claim was ineffective. When it comes to preparing for the penalty
                phase of a capital case, trial counsel generally has a duty to conduct "a
                thorough investigation of the defendant's background."           Williams v.
                Taylor, 529 U.S. 362, 396 (2000). But Strickland does not require the
                same investigation in every case. Cullen v. Pinholster, 563 U.S. 170, 195
                (2011). "[A] particular decision not to investigate must be directly
                assessed for reasonableness in all the circumstances, applying a heavy
                measure of deference to counsel's judgments." Strickland, 466 U.S. at 691.
                The test "calls for an inquiry into the objective reasonableness of counsel's
                performance, not counsel's subjective state of mind."         Harrington V.
                Richter, 562 U.S. 86, 110 (2011).
                            Here, Stacie's declaration indicates that trial counsel met with
                her and other unidentified members of Hippo's family before the penalty
                hearing to find out if any of them were willing to testify during the penalty
                hearing and Stacie agreed to do so. She suggests that her testimony

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                 would have been more detailed about the abuse perpetrated by Anzini if
                 trial counsel had better prepared her. But at the penalty hearing, trial
                 counsel asked Stacie broad questions about how Anzini was around the
                 house and how he was toward Hippo, and in response she never suggested
                 significant physical abuse even though it is clear that she knew Rippo's
                 upbringing was important when she observed at the end of her testimony
                 that "a lot of your upbringing directs your life." Even assuming that trial
                 counsel spent a limited amount of time with Stacie before she testified, we
                 are not convinced that counsel's acts or omissions in this respect were
                 outside the wide range of professionally competent assistance.
                             We are not as confident addressing the performance prong
                 with respect to the more general allegation that trial counsel failed to
                 interview and present the testimony of other family members. Stacie's
                 declaration does not identify the other family members who were present
                 for the meeting with counsel before the penalty hearing, but the family
                 members who provided declarations for the postconviction petition
                 indicate that they were never contacted by trial counsel. Absent an
                 evidentiary hearing, it is difficult to determine whether trial counsel
                 considered contacting other family members or had any reason to believe
                 such an investigation would be fruitful. In this respect, Stacie's testimony
                 at the penalty phase and the letter that counsel read into the record from
                 Rippo's mother suggest that no one led trial counsel to believe there was
                 more significant physical abuse or any sexual abuse and therefore
                 counsel's investigation and presentation may have been within the wide
                 range of professionally competent assistance in this respect. In the same
                 vein, Rippo has not specifically alleged that he informed trial counsel

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                 about the abuse or identified any family members who could testify to the
                 abuse. See Strickland, 466 U.S. at 691 ("The reasonableness of counsel's
                 actions may be determined or substantially influenced by the defendant's
                 own statements or actions. Counsel's actions are usually based, quite
                 properly, on informed strategic choices made by the defendant and on
                 information supplied by the defendant"); see also Waldrop v. Thigpen, 857
                 F. Supp. 872, 915 (N.D. Ala. 1994) ("The attorney's duty under the Sixth
                 Amendment is to conduct a reasonable investigation, not such an
                 exhaustive investigation that all conceivable mitigating evidence is
                 necessarily uncovered."). Although we believe that Rippo has not
                 overcome the presumption that trial counsel's performance was within the
                 wide range of professionally competent assistance, we also address the
                 prejudice prong below.
                             Considering all of the information in the declarations, we are
                 not convinced that "there is a reasonable probability that at least one juror
                 would have struck a different balance" between life and death.      Wiggins v.
                 Smith, 539 U.S. 510, 537 (2003). In addition to Stacie's testimony and the
                 letter from Rippo's mother, the defense presented testimony about Rippo's
                 good behavior in prison and for a period of time while he was on parole
                 and living with his mother and stepfather, Robert Duncan. The testimony
                 at the penalty hearing and the postconviction declarations describe Rippo
                 as a likeable and kind person who was skilled and intelligent. Hippo also
                 made a statement in allocution and expressed remorse for the victims'
                 deaths. Although some of the declarations include descriptions of
                 instances where Anzini emotionally and verbally abused Hippo, aside from
                 Stacie's declaration, the postconviction declarations detail little in the way

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                of specific instances of physical abuse involving Rippo; many of the
                declarants indicate that they suspected such abuse but had not witnessed
                it or were told by someone else that Anzini was abusive toward everyone
                in the house. Against this mitigating evidence, the State proved three
                valid aggravating circumstances: (1) that Rippo had a prior violent felony
                conviction for sexual assault, (2) that he was under a sentence of
                imprisonment at the time of the murders, and (3) that the murders
                involved torture. See Rippo v. State, 122 Nev. 1086, 1093, 1098, 146 P.3d
                279, 284, 287 (2006) (holding that three aggravating circumstances were
                invalid under McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004), but
                that the jury's consideration of those aggravating circumstances was
                harmless beyond a reasonable doubt). We have characterized the
                mitigating evidence presented at trial in this case as "not particularly
                compelling," Rippo, 122 Nev. at 1094, 146 P.3d at 284, and the additional
                mitigating evidence does not add anything compelling enough for us to
                conclude that there is a reasonable probability that at least one juror
                would have struck a different balance—either in weighing the aggravating
                and mitigating circumstances or choosing between life and death.        See
                Cullen,   563 U.S. at 189 (explaining that Strickland's          reasonable
                probability standard "requires a 'substantial,' not just 'conceivable,'
                likelihood of a different result" (quoting Harrington, 562 U.S. at 112)). On
                the latter point of the ultimate choice between life and death, it is
                significant that Rippo took two lives. Having determined that the omitted
                trial-counsel claim lacks merit, Hippo has not demonstrated cause to
                excuse the procedural default of that claim based on ineffective assistance
                of postconviction counsel.

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                             Finally, Rippo claims that trial counsel should have argued
                 specific mitigating circumstances and requested a special verdict form
                 listing specific mitigating circumstances. Postconviction counsel raised
                 this trial-counsel claim in the first petition. At the evidentiary hearing on
                 that petition, trial counsel testified that they chose not to create a list of
                 specific mitigating circumstances—other than the statutory mitigating
                 circumstances—because they wanted the jury "to think of absolutely
                 anything as a mitigating factor." We cannot fault postconviction counsel
                 for not pursuing this claim further on appeal given that the testimony
                 establishes that it was a strategic decision and there is no reasonable
                 probability that this court would have granted some form of relief based on
                 this claim. See Howard v. State, 106 Nev. 713, 722, 800 P.2d 175, 180
                 (1990) ("Tactical decision are virtually unchallengeable absent
                 extraordinary circumstances."), abrogated on other grounds by Harte v.
                 State, 116 Nev. 1054, 1072 n.6, 13 P.3d 420, 432 n.6 (2000).
                 Disclosure of records (claim 8)
                             Rippo argues that the district court erred in dismissing his
                 claim related to the trial court's decision to quash a subpoena for records
                 that were in the possession of the Department of Parole and Probation.
                 He argues that the trial court infringed on his constitutional right to
                 present a defense and confront the witnesses against him, that trial
                 counsel failed to "adequately litigate the disclosure of the records," and
                 that appellate counsel should have raised the issueS on direct appeal. To
                 excuse the procedural default of these claims under NRS 34.726(1) and
                 NRS 34.810, Rippo asserts that prior postconviction counsel was
                 ineffective for failing to raise them. We conclude that the postconviction-

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                 counsel claim lacks merit and therefore the trial-error and ineffective-
                 assistance claims are defaulted.
                                The postconviction-counsel claim lacks merit as to the
                 allegation of trial error because the alleged error was invited. When the
                 trial court held a hearing on the State's motion to quash the subpoena,
                 trial counsel represented that he and the prosecution had "worked
                 something out informally" and he did not have an objection to the court
                 granting the motion to quash. Under the circumstances, Rippo cannot
                 complain that the trial court erred when his counsel participated in and
                 invited the alleged error in granting the motion to quash.      See Carter v.
                 State, 121 Nev. 759, 769, 121 P.3d 592, 599 (2005) ("A party who
                 participates in an alleged error is estopped from raising any objection on
                 appeal."). There similarly is no basis for concluding that postconviction
                 counsel was deficient for not presenting a trial-error claim that was both
                 procedurally defaulted (under NRS 34.810(1)(b) because it could have been
                 raised on appeal) and without merit. Accordingly, the postconviction-
                 counsel claim is not sufficient to excuse the procedural default of the trial-
                 error claim.
                                The postconviction-counsel claim also lacks merit as cause and
                 prejudice with respect to the defaulted allegations of ineffective assistance
                 of trial and appellate counsel. The appellate-counsel claim fails on the
                 prejudice prong of Strickland because there is no reasonable probability
                 that this omitted issue would have had success on appeal, see Kirksey v.
                 State, 112 Nev. 980, 998, 923 P.2d 1102, 1113-14 (1996) (explaining
                 Strickland prejudice in context of appellate-counsel claim), given trial
                 counsel's representation that the issue had been resolved informally and

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                that there was no objection to granting the motion to quash, see Carter,
                121 Nev. at 769, 121 P.3d at 599 ("A party who participates in an alleged
                error is estopped from raising any objection on appeal."). The trial-counsel
                claim fails on both prongs. As to the deficiency prong, the record indicates
                that trial counsel had come to a resolution on the issue with the
                prosecution and Hippo has not made any factual allegations to the
                contrary. As to the prejudice prong, Hippo has not substantiated his claim
                that the records would have given rise to expert testimony; even now, over
                a decade after trial, Rippo has not identified an expert willing to offer
                testimony about his future dangerousness and amenability to a structured
                living environment based on the records. He therefore has not established
                a reasonable probability of a different outcome at trial had counsel
                challenged the motion to quash the subpoena. Because the appellate- and
                trial-counsel claims fail, so does the postconviction-counsel claim as cause
                and prejudice to excuse the procedural default of the appellate- and trial-
                counsel claims.
                            Rippo also argues that the district court erred in dismissing
                his claim that the trial court erred by preventing him from cross-
                examining Diana Hunt with the results of a pretrial psychiatric
                evaluation. To excuse the procedural default of this alleged trial error
                under NRS 34.726(1) and NRS 34.810, Hippo asserts that prior
                postconviction counsel was ineffective based on his failure to assert trial-
                and appellate-counsel claims related to this alleged trial error. We
                conclude that the postconviction-counsel claim lacks merit.
                            First, because Hippo has not identified a discovery motion or
                other request for the evaluation that was denied by the trial court, he has

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                   not demonstrated a viable issue that reasonably competent appellate
                   counsel could have raised Second, because Rippo fails to allege that trial
                   counsel knew about the evaluation or explain what additional
                   investigation trial counsel should have conducted that would have
                   uncovered the evaluation, assuming that counsel was not aware of it, he
                   has not demonstrated that trial counsel's conduct did not fall within the
                   range of reasonable professional assistance. It further appears that there
                   was no viable prejudice argument to support a trial-counsel claim as trial
                   counsel thoroughly cross-examined Hunt and challenged her credibility,
                   and Hunt admitted her criminal history, involvement in the charged
                   crimes, and agreement to testify against Rippo to avoid murder charges.
                   Given the lack of any substantial basis on which to challenge trial or
                   appellate counsel's performance, the postconviction-counsel claim lacks
                   merit and cannot be sufficient cause to excuse the procedural default of
                   the trial-error claim."


                         30 Rippo  also challenges the district court's denial of the following
                   claims related to (1) inadequate voir dire of potential jurors (claim 4),
                   (2) admission of prior bad act evidence (claim 5), (3) guilt phase jury
                   instructions (claims 6, 7, 11, and 19), (4) admission of victim-impact
                   evidence (claim 12), (5) penalty phase jury instructions (claims 16 and 17),
                   and (6) admission of gruesome photographs (claim 18). We conclude that
                   Rippo failed to overcome the applicable procedural bars and/or the law-of-
                   the-case doctrine and therefore the district court properly denied these
                   claims. We further reject Rippo's claim that cumulative error requires
                   reversal of the judgment of conviction. Any deficiencies in postconviction
                   counsel's representation, considered individually or cumulatively, see
                   McConnell, 125 Nev. at 259 n.17, 212 P.3d at 318 n.17, did not prejudice
                   him Finally, we reject Rippo's claim that the lethal injection protocol is
                                                                      continued on next page. . .


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                Actual innocence
                            Where, as here, a petitioner cannot demonstrate cause and
                prejudice, the district court may nevertheless excuse a procedural bar if
                the petitioner demonstrates that failing to consider the merits of any
                constitutional claims would result in a fundamental miscarriage of justice.
                Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). Typically, a
                fundamental miscarriage of justice in this context requires "a colorable
                showing" of actual innocence.    Id.   And we have allowed such gateway
                claims of actual innocence with respect to a capital petitioner's death
                eligibility. Id. Rippo contends that he is ineligible for the death penalty
                because the three aggravating circumstances supporting his death
                sentence are invalid. 31
                            Rippo argues that insufficient evidence supports the torture
                aggravating circumstance, a claim we rejected on direct appeal.    See Rippo
                v. State, 113 Nev. 1239, 1263-64, 946 P.2d 1017, 1032-33 (1997). He
                acknowledges our prior review but argues that we never determined
                whether the evidence showed that he "inflict[ed] pain beyond the killing

                  . continued
                unconstitutional, as this claim is not cognizable in a postconviction
                petition for a writ of habeas corpus. See id. at 248-49, 212 P.3d at 311.

                      31 Rippochallenged two of the aggravating circumstances in claims
                13 and 14 in his petition. Those claims were subject to the same
                procedural bars discussed in this opinion. The claims are addressed here
                only to the extent that they are the basis for Rippo's assertion of actual
                innocence as a gateway to consideration of his procedurally defaulted
                claims.




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                 itself." Hernandez v. State, 124 Nev. 978, 984, 194 P.3d 1235, 1239 (2008),
                 overruled on other grounds by Armenta-Carpio v. State, 129 Nev., Adv. Op.
                 54, 306 P.3d 395, 396 (2013). His claim is patently without merit based on
                 this court's observation regarding the evidence of torture inflicted on the
                 victims, which comports with the requirement identified by Rippo. Rippo,
                 113 Nev. at 1264, 946 P.2d at 1033 ("There seems to be little doubt that
                 when Rippo was shocking these victims with a stun gun, he was doing so
                 for the purpose of causing them pain and terror and for no other purpose.
                 Rippo was not shocking these women with a stun gun for the purpose of
                 killing them but, rather, it would appear, with a purely 'sadistic
                 purpose.'").
                                Rippo complains that the other two aggravating circumstances
                 are invalid for two reasons. First, he argues that the prior conviction
                 related to both aggravating circumstances was the product of an invalid
                 guilty plea. Based on our review of the record, we disagree that his guilty
                 plea was involuntarily or unknowingly entered. Second, relying on Roper
                 v. Simmons, 543 U.S. 551 (2005), Rippo argues that the prior conviction
                 could not be used as an aggravating circumstance for death-penalty
                 eligibility because he was only 16 years old at the time of the prior offense.
                 We reject this argument because Roper only addresses whether a
                 defendant can be sentenced to death for a capital offense committed before
                 age 18; it does not address whether a conviction for an offense that was
                 committed before the defendant was 18 can be used to make the defendant
                 death-eligible on another offense committed after the defendant turned 18.
                 Here, the murders were committed a week before Rippo's 27th birthday.



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                The a ggravating circumstances are valid, and Rippo has not demonstrated
                that he is ineligible for the death penalty.32
                             Having determined that Rippo is not entitled to relief, we
                affirm the order of the district court.


                                                          CaC
                                                            ■                TCt
                                                      Parraguir:CS 1


                                                          k-Lt ceatn            J.
                                                      Hardesty




                                                                                J.
                                                      Saitta




                                                      Gibbo


                                                                                J.
                                                      Pickering



                      32Rippo ar gues that postconviction counsel was ineffective for not
                challenging the a ggravating circumstances as invalid. We conclude that
                his claim lacks merit and therefore the district court did not err by
                denying this claim.




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                CHERRY, J., concurring in part and dissenting in part:
                            I concur in the majority's decision that when postconviction
                counsel is appointed pursuant to NRS 34.820, a challenge to that counsel's
                representation becomes available upon the conclusion of the first
                postconviction proceeding. I further agree with the majority's adoption of
                the two-prong test in Strickland v. Washington, 466 U.S. 668 (1984), to
                evaluate claims of ineffective assistance of postconviction counsel.
                However, I disagree with the majority's decision that a petition raising a
                claim of ineffective assistance of first postconviction counsel is filed within
                a reasonable time if it is filed within one year after entry of the district
                court's order disposing of the prior petition or, if a timely appeal is taken
                from the district court's order, within one year after our issuance of
                remittitur. I would hold that the reasonableness of any delay should be
                assessed on a case-by-case basis considering the totality of the
                circumstances, which may justify a delay of more than one year. I further
                dissent from the majority's conclusion that Rippo failed to show that he is
                entitled to an evidentiary hearing on his claims that postconviction
                counsel was ineffective for not raising a claim of prosecutorial misconduct
                and an ineffective-assistance claim based on trial counsel's failure to
                present additional mitigation evidence. Therefore, I would reverse and
                remand this matter to the district court for an evidentiary hearing on
                these claims.
                            Rippo complains that postconviction counsel was ineffective in
                failing to investigate and present evidence that the State knowingly
                presented perjured testimony at trial. Two of the State's witnesses, David
                Levine and James Ison, have provided declarations stating that the police
                provided details about the murders that Rippo had not disclosed to them.
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                   The majority acknowledges that the statements in the declarations could
                   have been used to impeach Levine and Ison but concludes that this was
                   not enough to make a difference. In my view, an evidentiary hearing is
                   necessary before that determination can be made. While Levine and Ison
                   did not recant their testimony that Hippo admitted his involvement in the
                   murders, their statements certainly impeached aspects of their testimony
                   and, perhaps more importantly, raise serious concerns about prosecutorial
                   misconduct. See People v. Savvides, 136 N.E.2d 853, 854 (N.Y. 1956) ("It is
                   of no consequence that the falsehood bore upon the witnessIs] credibility
                   rather than directly upon defendant's guilt. A lie is a lie, no matter what
                   its subject, and, if it is in any way relevant to the case, the district
                   attorney has the responsibility and duty to correct what he knows to be
                   false and elicit the truth."). The implications of the matters raised in the
                   declarations deserve closer examination that an evidentiary hearing will
                   provide.
                               Rippo also contends that postconviction counsel was
                   ineffective for not challenging trial counsel's failure to present mitigating
                   evidence of the abuse he suffered at the hands of his stepfather, James
                   Anzini, and his neuropsychological impairment. The new evidence paints
                   a picture of emotional and physical abuse to which the jury was not privy.
                   Anzini played games with Rippo and his siblings for the sole purpose of
                   belittling and harassing them Anzini scared the children by pretending
                   that he was going to drive the car they were riding in over a cliff. He hit
                   Rippo and his siblings with books and bamboo sticks. Anzini treated
                   Rippo worse than any of his children or stepchildren. On one occasion,
                   after Rippo suffered a beating from a neighbor boy, Anzini ordered him to
                   "go back and finish the job." Rippo returned to fight the boy and was

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                 badly hurt. In another incident, Anzini flew into a rage when Rippo
                 accidently broke an inexpensive household item. Anzini punished Rippo
                 for minor infractions by confining him to his room for hours without access
                 to a bathroom and then beating him when he wet his pants. While the
                 family was living in Moab, Utah, Anzini punished Rippo by making him
                 stand outside when the temperature was over 100 degrees. Rippo's
                 mother, Carole Anzini, also contributed to his troubled childhood. She
                 was neglectful in her care of him, and when he was seven years old, she
                 took Rippo and his siblings from their home in New York without
                 permission from the children's father, Domiano Campanelli. Campanelli
                 knew nothing about his children's whereabouts until ten years later. The
                 new mitigation evidence strongly suggests that Campanelli was a kind
                 and caring father who loved his children very much. Because of Carole's
                 actions, Rippo was robbed of a loving relationship with his father for a
                 decade.
                             In addition, Rippo provided an evaluation from psychologist
                 Jonathan Mack. Dr. Mack concluded that Rippo suffers from Attention
                 Deficit Hyperactivity Disorder, which, along with his unstable upbringing,
                 contributed to his early drug use. Further, Rippo sustained significant
                 psychosocial trauma during his childhood, which caused "a chronic free
                 floating anxiety which led to the development of his obsessive-compulsive
                 and drug addictive tendencies" as a means of controlling his anxiety. Dr.
                 Mack observed that Rippo's overall neurological and psychological
                 assessment reveals that he has significant problems with attention,
                 impulse control, and short-term memory that could have been identified
                 by competent neurological testing prior to trial.
                             The mitigation evidence presented at trial did little in the way
                 of providing the jury any insight into Rippo's character, background, and
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                  conduct. Had the new mitigation evidence been presented, it could have
                  provided that insight and swayed the jury to choose imprisonment rather
                  than death. See Penry v. Lynaugh, 492 U.S. 302, 328 (1989) ("Rather than
                  creating the risk of an unguided emotional response, full consideration of
                  evidence that mitigates against the death penalty is essential if the jury is
                  to give a reasoned moral response to the defendant's background,
                  character, and crime." (citations and internal quotation marks omitted)),
                  abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002);
                  Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir. 2003) ("Evidence
                  regarding social background and mental health is significant, as there is a
                  'belief, long held by this society, that defendants who commit criminal acts
                  that are attributable to a disadvantaged background or to emotional and
                  mental problems, may be less culpable than defendants who have no such
                  excuse." (quoting Boyde v. California, 494 U.S. 370, 382 (1990))); Jesse
                  Chang, Frontloading Mitigation: The "Legal" and the "Human" in Death
                  Penalty Cases, 35 Law & Soc. Inquiry 39, 46 (2010) ("The purpose of
                  mitigating evidence is to provide the jury with a basis for sentencing the
                  individual defendant to life imprisonment rather than to death .. . . The
                  challenge facing defense counsel is to present mitigating evidence that
                  explains the defendant's commission of the crime. This requires providing
                  the jury with an empathy provoking way of understanding the defendant
                  and his conduct."). While the majority casually dismisses this new
                  mitigation evidence, concluding that it would not have made a difference,
                  Rippo has produced sufficient support entitling him to an evidentiary
                  hearing to prove his allegations that postconviction counsel provided
                  ineffective assistance by failing to investigate and challenge trial counsel's
                  performance in the presentation of mitigating circumstances. Should he

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                    be successful, he may secure a new penalty hearing. Justice demands that
                    he receive that opportunity.


                                                                                          J.
                                                              Cherry




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