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Rippo v. State

Supreme Court of Nevada

August 2, 2018

MICHAEL DAMON RIPPO, Appellant,
v.
THE STATE OF NEVADA, Respondent.

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

          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. [1]

         BEFORE THE COURT EN BANC. [2]

          OPINION

          HARDESTY, J.

         This matter is before us on remand from the United States Supreme Court. Our prior opinion in this case, Rippo v. State (Rippo III), 132 Nev. 95, 368 P.3d 729 (2016), affirmed a district court order denying appellant Michael Damon Rippo's second postconviction petition for a writ of habeas corpus, which challenged his conviction for two first-degree murders and related felony offenses and his death sentences. The petition was both untimely and successive. Our opinion focused primarily on Rippo's argument that he had shown good cause and prejudice to excuse the procedural bars to his petition based on the alleged ineffective assistance of his first postconviction counsel. We reiterated the holdings from this court's decisions in Crump v. Warden, 113 Nev. 293, 934 P.2d 247 (1997), and McKague v. Warden, 112 Nev. 159, 912 P.2d 255 (1996), 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 but that the ineffective-assistance claim must not itself be procedurally barred, see Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). We then addressed 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 held 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 held 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. Our prior opinion also took the 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 those holdings, we concluded that although Rippo filed his petition within a reasonable time after the postconviction-counsel claims became available, those claims lacked merit and therefore he had not demonstrated good cause for an untimely petition or good cause and prejudice for a second petition. We also rejected his other allegations of good cause and prejudice. Accordingly, we determined that the district court properly denied the petition as procedurally barred and therefore affirmed.

         Rippo petitioned the United States Supreme Court for certiorari The Supreme Court granted certiorari, vacated our prior opinion, and remanded for further proceedings. Rippo v. Baker (Rippo IV), 580 U.S.__, 137 S.Ct. 905 (2017). The Supreme Court's decision touched on only one of the many issues discussed in our prior opinion: Rippo's judicial bias claim. As to that issue, the Supreme Court determined that we applied the wrong legal standard by focusing on whether Rippo's allegations demonstrated actual bias rather than asking "whether, considering all the circumstances alleged, the risk of bias was too high to be constitutionally tolerable." Id. at__, 137 S.Ct. at 906-07. The Court then vacated our prior judgment and remanded "for further proceedings not inconsistent with this opinion." Id.

         Upon reconsideration of the judicial-bias claim, we conclude that an evidentiary hearing is required. Rippo has offered some evidence in support of the judicial-bias claim that is substantially different than what was available to his trial and appellate counsel and this court on direct appeal, such that the law-of-the-case doctrine may not bar further litigation of this claim. And, considering the inquiry required by the Supreme Court, the judicial-bias claim may have merit if the new allegations are true. Rippo also made sufficient allegations that prior postconviction counsel provided ineffective assistance by not investigating and reasserting the judicial-bias claim, which would if true provide good cause to excuse the procedural defaults relevant to the judicial-bias claim. We therefore conclude that an evidentiary hearing is required with respect to these issues related to the judicial-bias claim. Accordingly, we reverse the district court's order as to the first claim in the postconviction petition and remand for an evidentiary hearing consistent with this opinion. Because the Supreme Court's decision did not affect the other holdings in our prior opinion, we reproduce most of our prior opinion and once again affirm the remainder of the district court's order.

         FACTS AND PROCEDURAL HISTORY

         The bodies of Denise Lizzi and Lauri Jacobson were found in Jacobson's apartment on February 20, 1992. Rippo and his girlfriend, Diana Hunt, were charged in the robbery and murder of Lizzi and Jacobson.[3] 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;[4] wiped down the apartment with a rag and removed Lizzi's boots and pants because he had bled on her pants; and took Lizzi's car and credit cards, later using the credit cards to make several purchases. Approximately one week later, Rippo confronted Hunt, who suggested that they turn themselves in to the police. Rippo refused, telling Hunt that he had returned to Jacobson's apartment, cut the women's throats, and jumped up and down on them. Other witnesses provided testimony linking Rippo to property taken from the women. And several witnesses testified to incriminating statements made by Rippo. The medical examiner testified that Lizzi's injuries were consistent with manual and ligature strangulation and that Jacobson died from 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 incarcerated; (2) Rippo's stepfather, Robert Duncan, testified regarding Rippo's friendly behavior when living with him while on parole and asked the jury to spare Rippo's life; and (3) Rippo's sister testified that their former stepfather, James Anzini, emotionally abused Rippo and had stolen his paychecks and gambled them away, and she urged the jury to show mercy. The defense also presented a letter from Rippo's mother, who was unable to testify in person because of medical issues. She described Rippo's upbringing and personality as a child (inquisitive, tender, and loving). She explained that Anzini made his living by gambling and that as a result, the family environment was not stable. She further described Rippo's relationship with Anzini in his teen years; the circumstances leading to Rippo's juvenile adjudication and commitment; the impact on the family environment and Rippo when Anzini was diagnosed with terminal cancer, eventually leading up to the sexual assault committed by Rippo in 1981; and Rippo's efforts to improve himself while incarcerated. At the conclusion of the penalty hearing, Rippo made a statement in allocution.

         The jury found all six aggravating circumstances, concluded that the mitigating circumstances did not outweigh the aggravating circumstances, and imposed a sentence of death for each murder. This court affirmed the convictions and sentences on direct appeal. Rippo I, 113 Nev. at 1265, 946 P.2d at 1033. The remittitur issued on November 3, 1998.

         Rippo filed a timely postconviction petition for a writ of habeas corpus in the district court on December 4, 1998, which was supplemented twice (on August 8, 2002, and February 10, 2004). As required by NRS 34.820, Rippo was represented by court-appointed counsel in the postconviction proceeding. Following an evidentiary hearing, the district court denied the petition. See Rippo v. State (Rippo II), 122 Nev. 1086, 1091, 146 P.3d 279, 282 (2006). On appeal, this court struck three of the six aggravating circumstances pursuant to McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004)-the circumstances alleging that the murders occurred during the commission of a burglary, a kidnapping, and a robbery-but affirmed the denial of Rippo's petition after concluding in a 4-3 decision that the jury's consideration of the invalid aggravating circumstances was harmless beyond a reasonable doubt. Rippo II, 122 Nev. at 1094, 1098, 146 P.3d at 284, 287. The remittitur issued on January 16, 2007.

         Rippo filed a second postconviction petition for a writ of habeas corpus on January 15, 2008, with the assistance of the Federal Public Defender's Office. The 193-page petition asserted 22 grounds for relief, some of which had been raised in prior proceedings and others that were new.[5] The State moved to dismiss the petition as procedurally barred, and Rippo sought leave to conduct discovery. After hearing argument on the petition and motions, the district court granted the State's motion to dismiss and denied Rippo's motion for discovery as moot. This appeal followed.

         DISCUSSION

         The petition at issue raised claims for relief based on trial error, prosecutorial misconduct and failure to disclose 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 NRS 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 (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-Rippo has been sentenced to death and his prior petition was the first one challenging the validity of his conviction and sentence. Rippo therefore was entitled to effective assistance of that counsel.

         Rippo's allegations regarding postconviction counsel arise in two contexts. First, Rippo asserted a postconviction-eounsel claim as a free-standing claim for relief from his judgment of conviction and sentence (claim 20(A), (B)).[6] Second, Rippo 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 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).[7]

         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 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)), which could have been raised in the prior postconviction appeal. Those grounds therefore are subject to dismissal under NRS 34.810(1)(b).[8]

         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.[9] 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).[10] 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).

         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). Rippo's petition was not filed within that time period. To excuse the delay in filing the petition, Rippo 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. Rippo 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 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. 21-25. 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).

         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 Rippo'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 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, [11] 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 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 u. Saffold, 536 U.S. 214, 223 (2002) (discussing California's timeliness standard in context of applying federal tolling provision and observing that "[t]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 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. Cf. 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).

         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 "[t]hat 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) ("[W]e 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 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, [12]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 (111. 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 performance where there is a statutory right to effective assistance of that counsel.[13]

         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 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, 813 F.3d 798 (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.[14] See Weaver v. Massachusetts, 582 U.S.__, __, 137 S.Ct. 1899, 1911 (2017) ("[T]he concept of prejudice [under Strickland] is defined in different ways depending on the context in which it appears."). 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 more than whether "the first post-conviction relief proceeding should have gone differently":

[T]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 . . . .").[15] Thus, the Supreme Court's observation that "[s]urmounting 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 ...


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