IN THE SUPREME COURT OF THE STATE OF NEVADA
TIMMY JOHN WEBER, No. 62473
Appellant,
vs.
THE STATE OF NEVADA,
Respondent. FILED
JUN 2 4 2016
TRACE K. LINDEMAN
CLERK OF SUPREME COURT
BY S•
DEJTY CLERK
ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
This is an appeal from a district court order denying a
postconviction petition for a writ of habeas corpus in a death penalty case.
Eighth Judicial District Court, Clark County; Douglas Smith, Judge.
Appellant Timmy John Weber lived in Las Vegas with his
girlfriend Kim, her two sons (17-year-old C.G. and 15-year-old A.G.), and
her daughter (14-year-old M.G.). Although he was Kim's boyfriend, Weber
treated M.G. more like his girlfriend. He started to abuse M.G. sexually
and took photographs documenting the abuse. That abuse escalated on
the morning of April 4, 2002.
That morning Weber and M.G. were home alone; C.G. had
spent the night at his friend Joey's apartment, Kim had gone to visit one
of her friends, and A.G. had left to go skateboarding. Weber and M.G. had
argued the previous night after a male friend called M.G., and she was
still upset the next morning. After she refused Weber's request that she
give him a hug and told him that she wanted to see her boyfriend, he
locked the front door to the house, pinned M.G. on the couch, and duct-
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taped her hands together behind her back. When she screamed, Weber
told her to shut up, put duct tape around her head, and forced her into a
bedroom, throwing her on the bedS and taping each foot individually and
taping her feet to her hands. Weber left, threatening to kill M.G. if she
attempted to escape. About 45 minutes later, Weber returned and
sexually assaulted her. After allowing M.G. to shower, he put socks over
her hands, duct-taped them, and then duct-taped her legs together. He
also duct-taped her head and body to the ladder of her bunk bed so that
she could not move. After telling M.G. that he was going to check on her
15-year-old brother A.G., Weber turned up the volume on a television set,
covered her with a blanket, and left the room.
Meanwhile, A.G. had met up with C.G. and was hanging out
with him at Joey's apartment. About two hours after the assault on
A.G. and Joey saw Weber sitting in his car near Joey's apartment. At the
time the boys were returning to the apartment after going to get snacks.
A.G. went to speak with Weber. When he returned to the apartment, he
told Joey that Weber said he had to go check in with Kim. A.G. left the
apartment and got into Weber's car.
About thirty minutes later, C.G. woke up from a nap and he
too went home. But when he got there, the doors were locked and he could
not get in through any windows. Hearing a loud television and a muffled
scream from M.G.'s room, he went back to Joey's apartment to get help.
When C.G. returned with a friend, they heard screams. C.G. broke a
window, entered the house, and let his friend in through the front door.
They found M.G. taped up in her room. Upon removing the tape over her
mouth, they learned of Weber's attack. Fearful that Weber would return,
they left the house and headed to Joey's apartment. While C.G. went to a
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nearby gas station to call the police, Weber drove up to Joey's apartment
building and asked if anyone had seen M.G. After Weber drove away,
C.G.'s friend flagged down a passing patrol car and M.G. told the officer
about Weber's assault on her. The officer took C.G. and M.G. home.
While conducting a protective sweep of the home, the officer discovered
Kim's and A.G.'s bodies.
Kim, who had left her friend's home a little before 11:00 a.m.
(about 90 minutes before Weber sexually assaulted M.G. in her room), was
found stuffed in a rubber container located in her bedroom closet. She was
naked. Her neck displayed a number of marks suggesting strangulation.
She suffered two blunt force trauma wounds on the back of her head,
causing a fractured skull. She also had bruising and scrapes on her arm
and knees.
A.G. was found in his bedroom, lying face down on his bed.
His head was covered with a black plastic bag that was secured around his
neck. His arms, hands, and wrists were bound behind his back with duct
tape, and his ankles were bound together with duct tape. A white t-shirt
was stuffed inside his mouth, and duct tape was wrapped around his head,
covering his eyes and mouth. Two 45-pound weights had been placed on
his upper and lower back, and two 50-pound weights had been placed on
his legs. A.G. died from mechanical asphyxia, suffocation, and
compression and restriction of his torso. Tears in the duct tape around
A.G.'s hands indicated that he struggled to free himself and the presence
of blood and vomit in the bag around his head indicated that A.G suffered
a very slow death.
Weber fled Las Vegas after the murders but returned before
the funeral services for Kim and A.G. on April 14, 2002. Before the
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services that day, C.G. returned to the family home with William Froman,
C.G. and M.G.'s temporary guardian, to retrieve a few items. Immediately
upon entering the home, Froman was attacked by Weber, who struck
Froman on the head with a baseball bat, fracturing his skull. Weber also
hit C.G., drawing blood. Weber fled but was captured about two weeks
later in a trailer home in Las Vegas.
A jury convicted Weber of sexual assault on a child under 14
(Count 1), sexual assault on a child under 16 (Counts 2, 3, and 11), open or
gross lewdness (Counts 4, 5, and 6), use of a minor in producing
pornography (Count 7), possession of a visual presentation depicting
sexual conduct of a person under 16 (Count 8), burglary (Counts 9 and 15),
first-degree kidnapping (Counts 10 and 13), first-degree murder with the
use of a deadly weapon (Counts 12 and 14), and attempted murder with
the use of a deadly weapon (Counts 16 and 17).
At the conclusion of the penalty hearing, the jury found 13
circumstances aggravated A.G.'s murder, all of which stemmed from the
incidents on April 4 and 14—(1) sexual assault on a child under the age of
14; (2), (3), (4) sexual assault on a child under the age of 16; (5) first-
degree kidnapping of M.G.; (6) first-degree kidnapping of A.G; (7)
attempted murder of C.G. with the use of a deadly weapon; (8) attempted
murder of Froman with the use of a deadly weapon; (9) the murder was
committed during the perpetration of a burglary; (10), (11) the first-degree
kidnapping of A.G. and M.G.; (12) the murder involved torture or
mutilation; and (13) Weber had been convicted in the immediate
proceeding of more than one offense of murder. At least one juror found
the following mitigating circumstances; (1) Weber had an unstable
upbringing, (2) his family loved him, (3) his family would suffer as a result
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of the imposition of a death sentence, (4) he had a history of good behavior
while incarcerated at the Clark County Detention Center, (5) he had a
history of good behavior while incarcerated at the Nevada State Prison, (6)
he had no prior history of crimes of violence, (7) his age at the time of his
prior criminal history, (8) his current age, (9) he did not resist arrest, (10)
he had a normal upbringing, (11) his lack of financial stability, (12) the
State's witnesses did not request death, and (13) his display of emotion
during the penalty phase. Concluding that the aggravating circumstances
outweighed the mitigating circumstances, the jury sentenced Weber to
death for A.G.'s murder. With the exception of the torture aggravating
circumstance, the jury found the same circumstances aggravated Kim's
murder but sentenced Weber to a term of life in prison without the
possibility of parole. On appeal, this court affirmed the judgment of
conviction and death sentence. Weber v. State, 121 Nev. 554, 119 P.3d 107
(2005).
Weber filed a pro se postconviction petition for a writ of
habeas corpus on March 22, 2006, which was supplemented by counsel on
February 27, 2007. The district court denied the petition on November 7,
2007, without conducting an evidentiary hearing. This court affirmed the
district court's judgment on July 20, 2010, and remittitur issued on
October 18, 2010. Weber v. State, Docket No. 50613 (Order of Affirmance,
July 20, 2010). Weber filed a second postconviction petition on September
22, 2011, and an amended petition on March 12, 2012. The district court
denied the petition on December 10, 2012, without conducting an
evidentiary hearing. This appeal followed.
Weber argues that the district court erroneously denied his
second petition as procedurally barred without conducting an evidentiary
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hearing. Because he filed the petition almost six years after this court
issued its remittitur in his direct appeal, the petition was untimely under
NRS 34.726(1). The petition was also successive and therefore
procedurally barred pursuant to NRS 34.810(1)(b)(2). As cause to
overcome the procedural default rules, Weber contends that his first
postconviction counsel was ineffective for failing to raise several claims of
ineffective assistance of trial and appellate counsel.
Post conviction counsel
Because Weber's first postconviction counsel was appointed
pursuant to a statutory mandate, NRS 34.820(1), Weber was entitled to
effective assistance of that counsel as a matter of state law and a
meritorious claim that postconviction counsel provided ineffective
assistance may establish cause under NRS 34.810(1)(b) for raising new
claims in a second postconviction proceeding. Crump v. Warden, 113 Nev.
293, 304-05, 934 P.2d 247, 253-54 (1997); see also Rippo v. State, 132 Nev.,
Adv. Op. 11, P.3d (2016). But the postconviction-counsel claim
must not be procedurally defaulted. Hathaway v. State, 119 Nev. 248,
252, 71 P.3d 503, 506 (2003). Here, the postconviction-counsel claim is
subject to the time limit set forth in NRS 34.726(1), State v. Eighth
Judicial Dist. Court (Riker), 121 Nev. 225, 235, 112 P.3d 1070, 1077
(2005), so the postconviction-counsel claim had to be raised within a
reasonable time after it became available, Hathaway, 119 Nev. at 252-53,
71 P.3d at 506. We conclude that Weber filed his petition asserting the
postconviction-counsel claims as good cause within a reasonable time as
the petition was filed within one year after this court issued its remittitur
in the first postconviction appeal. Rippo, 132 Nev., Adv. Op. 11, P.3d
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at . Weber must still show that his postconviction claims have merit to
overcome the procedural bars. 1
Weber argues that postconviction counsel was ineffective for
omitting a variety of challenges to the effectiveness of trial and appellate
counsel. To establish that postconviction counsel was ineffective, Weber
must demonstrate both deficient performance (that counsel's performance
fell below an objective standard of reasonableness) and that counsel's
performance prejudiced him in the prior habeas proceeding (that the
outcome of that proceeding would have been different but for counsel's
deficient performance). Id. at ; see also Crump, 113 Nev. at 304 & n.6,
934 P.2d at 254 & n.6 (indicating that test set forth in Strickland v.
Washington, 466 U.S. 668 (1984) would be used to evaluate postconviction
counsel's assistance) Where postconviction counsel's alleged
ineffectiveness is based on omitted claims regarding ineffective assistance
of trial and/or appellate counsel, the merit of the postconviction.-counsel
claim generally is dependent on the merits of the omitted trial- and
appellate-counsel claims. See Rippo, 132 Nev., Adv. Op. 11, P.3d
at . The same two-part test set forth above applies to the trial- and
'In addition to the procedural bars in NRS 34.726 and NRS 34.810,
the statutory laches bar under NRS 34.800 also applies because the State
pleaded it below. See NRS 34.800(2) (requiring that State specifically
plead laches). The district court determined that the petition was subject
to laches and the rebuttable presumption of prejudice. Weber does not
expressly challenge that decision in his appellate briefs even though the
State addresses NRS 34.800 in its answering brief. As a result of Weber's
omission, we could have summarily affirmed the district court's decision
based on NRS 34.800. Weber's counsel should be mindful to avoid similar
omissions in the future.
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appellate-counsel claims. Strickland, 466 U.S. at 687-88; Warden v.
Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in
Strickland); Kirksey, 112 Nev. at 998, 923 P.2d at 1114 (applying
Strickland test in context of appellate-counsel claim). Both deficiency and
prejudice must be shown, Strickland, 466 U.S. at 697, and the petitioner
must demonstrate the underlying facts by a preponderance of the
evidence, Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004).
This court gives deference to the district court's factual findings if
supported by substantial evidence and not clearly erroneous but reviews
the court's application of the law to those facts de novo. Lader v. Warden,
121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).
Omitted trial-counsel claims
Weber argues that the district court erred by denying his
claim that postconviction counsel was ineffective for not challenging trial
counsel's representation in three respects: jury selection, pretrial
investigation and conduct of the guilt phase, and investigation of
mitigation evidence and conduct of the penalty phase.
Jury selection
Weber faults postconviction counsel's failure to assert that
trial counsel provided ineffective assistance during jury selection when
they waived peremptory challenges and failed to meaningfully question
potential jurors, "life-qualify" the jury, exclude jurors who could not
consider all forms of punishment, exclude jurors who misunderstood the
State's burden of proof and the defense's lack of any burden of proof,
question jurors about their personal experiences that likely biased them
against him, and adequately question the jury about pretrial publicity. To
support his argument on appeal, Weber cites to his postconviction petition,
where he provided a fuller explanation of these trial-counsel claims.
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However, mere citation to the pleadings below is inappropriate, NRAP
28(e)(2), and insufficient to meet his burden to provide cogent argument,
Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987), that explains
how the district court erred. Moreover, the omitted trial-counsel claims
are speculative and not borne out by the record. Therefore, he has not
shown that postconviction counsel was ineffective in omitting them.
Investigation and guilt phase
Weber next faults postconviction counsel for not asserting that
trial counsel were ineffective because they failed to attack the credibility
of Robin Thornton, M.G., and affidavits used to establish probable cause
for the search warrants. We conclude that the suggested attacks on
Thornton's credibility based on her drug use and criminal history and on
M.G.'s credibility because she had not witnessed Weber's credit card fraud
would not have convinced the trial court to grant his motion to suppress
the evidence obtained when the search warrants were executed.
Therefore, he has not demonstrated that prior postconviction counsel's
omission of this trial-counsel claim was ineffective.
Weber also faults postconviction counsel for not asserting that
trial counsel were ineffective because they based the allocation of
resources to his case on the results of a polygraph test that counsel
required him to take. Even assuming that the underlying factual
allegation is true, he does not point to any course of action that trial
counsel did not undertake due to the results of his polygraph. As he
established no basis for this challenge to trial counsel's performance, he
has not demonstrated that postconviction counsel was ineffective for not
raising this claim.
Weber further faults postconviction counsel for not asserting
that Weber likely would not have been convicted of first-degree murder
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had trial counsel investigated and presented evidence of his brain damage.
As support, he points to an evaluation by neuropsychologist Dr. Ruben
Gur that indicates he suffered from brain damage. Although the
evaluation suggests that Weber has difficulty controlling his emotions in
situations that he perceives to be threatening, it does not demonstrate
that he was incapable of forming the necessary intent for first-degree
murder by premeditation or torture (the two theories alleged by the
prosecution) and therefore the evaluation provided no basis for
postconviction counsel to assert this trial-counsel claim. Accordingly, we
conclude that Weber failed to show that postconviction counsel was
ineffective in this regard.
In his final challenge related to the defense investigation,
Weber faults postconviction counsel for failing to assert that trial counsel
were ineffective in the defense theories that they presented. He takes
issue with trial counsel's alternative-suspect theory on the ground that it
had little evidentiary support and with trial counsel's consent defense to
the sexual assault charges because the jurors might have considered such
a defense repugnant. He suggests that they should have pursued a
mental health defense. Although Weber disagrees with the defense
theories pursued at trial, his general assertion that another theory would
have provided a better defense is not a sufficient basis on which prior
postconviction counsel could have asserted that trial counsel were
ineffective. See Rios v. Rocha, 299 F.3d 796, 807 (9th Cir. 2002) ("Once
counsel reasonably selects a defense, it is not deficient performance to fail
to pursue alternative defenses."); Hunt v. State, 940 So. 2d 1041, 1067
(Ala. Crim. App. 2005) r[T]he mere existence of a potential alternative
defense theory is not enough to establish ineffective assistance based on
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counsel's failure to present that theory." (quoting Rosario—Dominguez v.
United States, 353 F. Supp. 2d 500, 513 (S.D.N.Y. 2005))). Because Weber
has not established a sufficient basis for the omitted trial-counsel claim,
he has not demonstrated that prior postconviction counsel was ineffective
for not raising it.
Penalty-phase claims
Weber argues that postconviction counsel should have alleged
that trial counsel were ineffective for encouraging the jury to sentence him
to death. Considering the challenged comments in context, trial counsel
did not encourage jurors to impose a death sentence; rather, they implored
the jury not to impose a death sentence because that sentence would not
bring the victims back to their family, told the jury that it had the power
to stop the killing in this case, and suggested that killing Weber in
retaliation for his actions would not compensate the victims' family for
their loss. Trial counsel further argued that incarcerating him forever was
severe punishment and entreated the jury to select that option rather than
death. As Weber demonstrated no basis on which prior postconviction
counsel could have successfully challenged trial counsels' performance in
this respect, we conclude that he failed to show that postconviction counsel
was ineffective.
Mitigation
Weber next argues that postconviction counsel should have
asserted that trial counsel provided ineffective assistance by not
investigating and presenting additional evidence concerning his
upbringing, family history, and mental illness. We are not convinced that
this trial-counsel claim was so strong that postconviction counsel's failure
to raise it fell below an objective standard of reasonableness.
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Strickland acknowledges counsel's obligation to "make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary." 466 U.S. 668, 691 (1984); see also
Wiggins v. Smith, 539 U.S. 510, 521-23 (2003) (recognizing counsel's duty
to investigate). Preparing for a capital penalty hearing generally includes
a duty to thoroughly investigate a defendant's background for possible
mitigating evidence, see Williams v. Taylor, 529 U.S. 362, 396 (2000), but
"reasonable" does not mean that an investigation must be so exhaustive as
to uncover all conceivable mitigating evidence, see Waldrop v. Thigpen,
857 F. Supp. 872, 915 (N.D. Ala. 1994).
It is evident from the record that trial counsel investigated
and prepared for the penalty hearing, as several family members testified
about Weber's childhood and a mental health expert provided insight into
his upbringing as well as his personality. While the new mitigation
evidence presents a more robust picture of Weber's childhood and delves
deeper into his mental health than the mitigation case presented at trial,
we are not convinced that he established that counsel's investigation was
deficient. Several of •Weber's family members were interviewed in
preparation for the penalty hearing, but none of them described the level
of physical abuse at the hands of his parents and other relatives that he
now describes. Nor did any of those witnesses describe the full extent of
his parents' criminal activity or Weber's mother's alcohol abuse. Notably,
both Weber and his mother denied any history of physical or sexual abuse
when interviewed by the defense mental health expert who testified at
trial. Weber also does not assert that trial counsel had reason believe that
he had mental problems that required investigation or evaluation beyond
that provided by the expert who testified at trial—none of the witnesses
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interviewed for trial indicated that Weber had any mental health issues
and Weber indicated to his defense team that he had "no psychological
profile" and that there was nothing in his background that would explain
his actions. Given this record, it is not clear that prior postconviction
counsel's failure to challenge trial counsels' investigation and presentation
of mitigating evidence was ineffective.
Even if there were sufficient grounds for prior postconviction
counsel to assert that trial counsel were deficient in their investigation
and presentation of mitigation evidence, counsel still would have had to
demonstrate prejudice. Presenting negative aspects of Weber's
upbringing, hisS mental health, and brain damage, as opposed to or in
addition to the mitigation evidence presented at trial showing positive and
gentle aspects of his character, would have been risky. The jurors could
have viewed the new evidence as mitigating, but they could have just as
easily considered the evidence to be aggravating, showing that his
exposure to violence, physical abuse and neglect, mental illness, and brain
damage that coalesced into unimaginable violence made him
unredeemable or a continuing danger. See Cullen v. Pinholster, U.S.
, 131 S. Ct, 1388, 1410 (2011) (observing that evidence of defendant's
family's substance abuse problems, mental illness, and criminal history
was "by no means clearly mitigating, as the jury might have concluded
that [defendant] was simply beyond rehabilitation"); Atkins v. Virginia,
536 U.S. 304, 321 (2002) (recognizing that mitigating evidence can be a
"two-edged sword" that juries might find shows future dangerousness); see
also Kansas v. Carr, U.S. , 136 S. Ct. 633, 642 (2016) ("Whether
mitigation exists . . . is largely a judgment call (or perhaps a value call);
what one juror might consider mitigating another might not."). Although
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some of the new mitigating evidence suggests that Weber was
nonaggressive by nature but, due to his traumatic upbringing, mental
illness, and brain damage, he reacted violently in situations where he was
frightened or threatened, the circumstances of the offenses at issue here
do not suggest a frightening or threatening situation. For example, the
evidence suggested that Weber sought out A.G., bringing him back to the
home for no purpose other than to kill him in a manner that inflicted a
great deal of pain and suffering. Under the circumstances, we conclude
that the new mitigation evidence would not have altered the outcome of
the penalty hearing. Thus, for this reason as well, we conclude that he
has not demonstrated that postconviction counsel was ineffective for not
challenging trial counsel's performance in this regard. 2
Other matters
Weber also argues that postconviction counsel should have
asserted that trial counsel were ineffective for not objecting "to the
numerous unlawful and erroneous aggravating circumstances, jury
instructions and prosecutorial misconduct that pervaded the penalty
Weber complains that postconviction counsel should have asserted
that trial counsel inadequately prepared the mental health expert for
trial However, postconviction counsel raised a substantially similar
claim, challenging trial counsel's reliance on the expert because the expert
failed to perform a proper evaluation and was unable to offer a
psychological opinion explaining why Weber committed the offenses.
Weber v. State, Docket No. 50613 (Order of Affirmance July 20, 2010), at 5-
6. We conclude that this claim is barred by the law-of-the-case doctrine,
see Hall v. State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975) ("The doctrine
of the law of the case cannot be avoided by a more detailed and precisely
focused argument subsequently made after reflection upon the previous
proceedings."), and therefore no relief is warranted.
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phase hearing as alleged" and that trial counsel ineffectively examined
witnesses, ineffectively cross-examined the prosecution's forensic expert,
and failed to object to the improper admission of his prior convictions.
These claims are not supported by cogent argument but only by citations
to his postconviction petition, and therefore we decline to address them.
See Maresca, 103 Nev. at 673, 748 P.2d at 6.
Omitted appellate-counsel claims
Weber argues that the district court erred by denying his
claims that postconviction counsel was ineffective for not challenging
appellate counsel's failure to raise a number of issues on direct appea1. 3
Jury selection matters
Weber argues that postconviction counsel should have
challenged appellate counsel's failure to argue that: (1) pretrial publicity
rendered his trial unfair, (2) the trial court should have excused several
potential jurors who indicated that they had already determined his guilt,
(3) the trial court should have excused four seated jurors who indicated
that they believed that a defendant had an obligation to establish his
innocence and five jurors who were predisposed to the death penalty, and
3We do not address several of Weber's claims that postconviction
counsel should have asserted that appellate counsel was ineffective
because he failed to present cogent argument. Maresca, 103 Nev. at 673,
748 P.2d at 6. Those claims relate to appellate counsel's failure to
challenge his convictions and death sentence as invalid because the tenure
of judges of the Nevada state district courts and the Justices of this court
are dependent upon popularly contested elections, failure to raise issues
identified as claims 18, 25, and 27 in his postconviction petition, and
failure to raise unidentified instances of prosecutorial misconduct during
arguments in the guilt and penalty phases of the trial.
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(4) the trial court should have excused several seated jurors because they
or their family members had been the victim of some sort of sexually-
related incident. Because he has not shown that any of the jurors were
unfair or biased for any of the reasons he suggests, he has not established
viable appellate issues that were unreasonably omitted by appellate
counsel And, as a result, he has not established that postconviction
counsel was ineffective for omitting these appellate-counsel claims. 4
Weber further contends that postconviction counsel should
have asserted that appellate counsel was ineffective for not arguing that
the trial court erred in excusing three death scrupled veniremembers.
Each of the three veniremembers were properly excused from the venire
because they expressed views against the death penalty that would have
prevented or substantially impaired the performance of their duties as
jurors. See Lockhart v. McCree, 476 U.S. 162, 165 (1986); NRS 175.036(1).
Because the record therefore does not support a challenge to appellate
counsel's omission of this issue, Weber has not demonstrated that prior
4To the extent Weber argues that the trial court erred by refusing to
change venue, allow individualized voir dire to ascertain the impact of
pretrial publicity, and sequester the jury, those claims were appropriate
for direct appeal and therefore are procedurally barred absent a
demonstration of good cause and prejudice. NRS 34.810(1)(b)(2), (3).
Because he has not articulated good cause for failing to raise these claims
sooner, no relief is warranted. Weber further argues that we should
revisit this court's decision on direct appeal regarding the trial court's
denial of two for-cause challenges in light of his new argument that the
intense pretrial publicity surrounding his case made it impossible to
impanel a fair and impartial jury. We reject this argument, especially
where he has still not shown that any seated juror was biased based on
pretrial publicity or for any other reason.
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postconviction counsel was ineffective for not raising this appellate-
counsel claim.
Pornography
Weber argues that postconviction counsel should have
asserted that appellate counsel was ineffective for not arguing that there
was insufficient evidence to support the conviction for possession of child
pornography because no evidence established that he exercised control
over the pornographic images found on the computer and floppy disks
retrieved from the home. We conclude that appellate counsel's omission of
this sufficiency challenge was not ineffective as a rational trier of fact
could find Weber guilty beyond a reasonable doubt based on testimony
that the computer and floppy disks containing the child pornography
belonged to and were used by Weber. See Origel-Candido v. State, 114
Nev. 378, 381, 956 P.2d 1378, 1380 (1998); Jackson v. Virginia, 443 U.S.
307, 319 (1979). While other people living in the home had access to the
computer and some of them used it to play video games or type school
reports, a rational juror could reasonably infer from the evidence
presented that Weber possessed pornographic images of children. See
NRS 200.730; Palmer v. State, 112 Nev. 763, 768-69, 920 P.2d 112, 115
(1996). Because any sufficiency challenge would have been rejected had
appellate counsel raised it, postconviction counsel was not ineffective for
omitting this appellate-counsel claim.
Jury instructions
Weber also argues that postconviction counsel should have
asserted that appellate counsel was ineffective in failing to challenge the
"actual and substantial" and "govern and control" language in the
reasonable doubt instruction. As the instruction given did not include the
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word "substantial," postconviction counsel could not fault appellate counsel
on this point. And because challenges to the "govern and control"
language had been rejected, see, e.g., Ramirez v. Hatcher, 136 F.3d 1209,
1213 (9th Cir. 1998); Elvik v. State, 114 Nev. 883, 897-88, 965 P.2d 281,
290-91 (1998), postconviction counsel similarly could not fault appellate
counsel for not challenging that part of the instruction, see In re Reno, 283
P.3d 1181, 1212 (Cal. 2012) (explaining that habeas counsel's failure to
raise claims previously rejected in other• cases is not objectively
unreasonable where there is no legitimate• and asserted ground for
revisiting the issue). Absent any merit to this appellate-counsel claim,
postconviction counsel cannot be faulted for omitting it.
Weber next argues postconviction counsel should have
asserted that appellate counsel was ineffective for not challenging the
torture-murder instruction on the ground that the instruction did not
include all of the requisite elements of the offense. However, the
instruction comports with the law, see Rippo v. State, 113 Nev. 1239, 1263,
946 P.2d 1017, 1032 (1996), and Weber does not identify what elements
were omitted from the instruction. As postconviction counsel could not
have successfully challenged appellate counsel's failure to challenge this
instruction upon the ground he asserts here, postconviction counsel was
not ineffective for omitting this claim.
Weber also argues that postconviction counsel should have
asserted that appellate counsel was ineffective for not arguing that the
jury was incorrectly instructed that it could convict him of murder and
kidnapping if it merely found that A.G. was physically restrained, thereby
relieving the State of its burden to prove every element of the kidnapping
beyond a reasonable doubt. At the time of Weber's trial and direct appeal,
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we had held that physical restraint in itself was sufficient to establish
kidnapping distinct from an associated offense (here, murder). Clem v.
State, 104 Nev. 351, 354, 760 P.2d 103, 105 (1988), overruled on other
grounds by Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990),
superseded by statute on other grounds as stated in Steese v. State, 114
Nev. 479, 960 P.2d 321 (1998). The instruction used here was consistent
with language in Clem. Because the instruction given was a correct
statement of law at the time of Weber's trial and direct appeal, appellate
counsel cannot be faulted for not challenging it on appeal. See Strickland
v. Washington, 466 U.S. 668, 689 (1984) ("A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's perspective
at the time."). Moreover, there was little likelihood of success on the
merits had this claim been raised on appeal for two reasons. First, the
State's theory on this offense was not dependent on restraint but instead
focused more on Weber's conduct when he lied to A.G. to get him to go
home and then took A.G. home with the intent to kill him. Second, we
indicated in Mendoza v. State, that the test now asserted by Weber does
not apply when the associated offense underlying first-degree kidnapping
is murder. 5 122 Nev. 267, 275 n.19, 130 P.3d 176, 180 n.19 (2006).
5 We acknowledge that shortly after Mendoza, this court nonetheless
applied that test where murder was the associated offense underlying a
first-degree kidnapping conviction. See Pascua v. State, 122 Nev. 1001,
1006, 145 P.3d 1031, 1034 (2006). Pascua does not mention footnote 19 in
Mendoza. Even if the test applied here, a challenge to the instruction
would not have resulted in a different outcome on direct appeal because
continued on next page . . .
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Because there is no merit to either prong of the appellate-counsel claim,
postconviction counsel was not ineffective for omitting it.
Weber argues that postconviction counsel should have
asserted that appellate counsel was ineffective for not challenging the
instructions on malice, anti-sympathy, and equal and exact justice.
Because this court had repeatedly upheld those instructions, see Byford v.
State, 116 Nev. 215, 232, 994 P.2d 700, 712 (2000) (upholding malice
instruction where the jury is properly instructed on the presumption of
innocence); Sherman v. State, 114 Nev. 998, 1011, 965 P.2d 903, 912
(1998) (upholding anti-sympathy instruction where trial court also
instructs the jury to consider mitigating facts); Leonard v. State, 114 Nev.
1196, 1209, 969 P.2d 288, 296 (1998) (upholding equal and exact justice
instruction), appellate counsel's failure to challenge the instructions did
not fall below an objective standard of reasonableness and, consequently,
postconviction counsel was not ineffective for omitting this appellate-
counsel claim.
Deadly weapon enhancement
Weber next argues postconviction counsel should have
asserted that appellate counsel was ineffective for not challenging the
. . . continued
the evidence establishes that the movement and physical restraint of A.G.
substantially exceeded that required to complete the murder. See id.
("Although we are cognizant that seizure, restraint, or movement often
occurs incidental to the underlying offense of murder, there are certainly
situations in which such seizure, movement, or restraint substantially
exceeds that required to complete the murder. For example, dual
convictions could stand where the object is murder and the victim is
kidnapped for that purpose.").
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deadly-weapon-enhancement instruction on the ground that it is
unconstitutionally vague. We had rejected a similar constitutional
challenge to the definition of a "deadly weapon" in Hernandez v. State, 118
Nev. 513, 527-28, 50 P.3d 1100, 1110 (2002), which was decided before
Weber's direct appeal. Considering the controlling law at the time of the
direct appeal, appellate counsel's omission of this issue did not fall below
an objective standard of reasonableness. And for that reason, prior
postconviction counsel's omission of this appellate-counsel claim also was
not deficient. Weber's alternative, sufficiency-of-the-evidence basis for an
appellate-counsel claim also falls on the deficiency prong because, based
on the evidence presented at trial, the sufficiency challenge does not
appear to be so strong that its omission could be characterized as falling
below the objective standard of reasonableness that governs counsel's
performance. A rational juror could reasonably conclude beyond a
reasonable doubt that the various implements used to kill A.G. and Kim
were "instrument[s] [or] material[s] . . . which, under the circumstances in
which [they were] used . . . [were] readily capable of causing substantial
bodily harm or death." NRS 193.165(6)(b) (defining "deadly weapon"). As
there was no basis on which postconviction counsel could have successfully
challenged appellate counsel's failure to challenge the deadly weapon
enhancement, postconviction counsel was not ineffective for omitting this
claim.
Penalty-phase claims
Weighing instruction
Weber claims that postconviction counsel should have asserted
that appellate counsel was ineffective for not challenging an instruction
that did not advise the jury that the aggravating circumstances had to
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outweigh the mitigating circumstances beyond a reasonable doubt before
the jury could impose a death sentence. Although the cases that have
been asserted as support for such an instruction (Ring v. Arizona, 536 U.S.
584 (2002) and Johnson v. State, 118 Nev. 787, 59 P.3d 450 (2002)) were
available at the time of Weber's direct appeal, trial counsel did not request
such an instruction and therefore appellate counsel would have been faced
with a plain-error standard. For that reason, it is questionable whether
appellate counsel's omission of this issue fell below an objective standard
of reasonableness. But even if postconviction counsel could have
demonstrated that appellate counsel's performance was deficient, our
decisions in McConnell v. State, 125 Nev. 243, 254, 212 P.3d 307, 314-15
(2009), which concluded that nothing in the relevant statutory language
imposed a beyond-a-reasonable-doubt standard on the weighing of
aggravating and mitigating circumstances, and Nunnery v. State, 127
Nev., Adv. Op. 69, 263 P.3d 235, 250-53 (2011), which concluded that the
weighing of aggravating and mitigating circumstances is not subject to the
• beyond-a-reasonable-doubt standard, establish that there was no
reasonable probability of success had this issue been raised by appellate
counsel. See also Carr, U.S. at , 136 S. Ct. at 642 (ION course the
ultimate question whether mitigating circumstances outweigh
aggravating circumstances is mostly a question of mercy—the quality of
which, as we know, is not strained. It would mean nothing, we think, to
tell the jury that the defendants must deserve mercy beyond a reasonable
doubt; or must more-likely-than-not deserve it."). As such, postconviction
counsel could not have established the prejudice prong of the appellate-
counsel claim. Because the appellate-counsel claim ultimately would have
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had no merit, Weber suffered no prejudice based on postconviction
counsel's omission of it.
Constitutionality of the aggravating circumstances
Weber contends that postconviction counsel should have
asserted a number of appellate-counsel claims related to the validity of the
sexual assault, torture, and felony aggravating circumstances.
Sexual assault aggravating circumstances
Weber argues that postconviction counsel should have
asserted that appellate counsel was ineffective for not challenging the
aggravating circumstances based on his four convictions for sexually
assaulting M.G. on the ground that the jury was not instructed that it had
to find beyond a reasonable doubt that those convictions involved the use
or threat of violence, as required by NRS 200.033(2)(b).
The jurors were instructed that first-degree murder may be
aggravated where the "murder was committed by a person who, at any
time before a penalty hearing is conducted for the murder, is or has been
convicted of a felony involving the use or threat of violence to the person of
another," specifically the sexual assault counts related to M.G. The jurors
were further instructed that they "must find the existence of each
aggravating circumstance, if any, unanimously and beyond a reasonable
doubt" and were given the statutory reasonable doubt instruction, NRS
175.211. We are not convinced that the instruction relieved the
prosecution of its burden of proof. But even if it did, this court's analysis
of these aggravating circumstances in the context of its mandatory review
of the death sentence on direct appeal indicates that a challenge to the
instruction would not have resulted in relief on appeal. Specifically, in
upholding the sexual assault aggravating circumstances, this court
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concluded that the record established that Weber used or threatened
violence when he sexually assaulted M.G. Weber, 121 Nev. at 586, 119
P.3d. 129. Given that ruling, postconviction counsel was not ineffective for
omitting this appellate-counsel claim.
Torture aggravating circumstance
Weber argues that postconviction counsel should have
asserted that appellate counsel was ineffective for not challenging the
torture aggravating circumstance on three grounds.
First, he argues that appellate counsel should have argued
that the aggravating circumstance was not supported by sufficient
evidence showing that he intended to inflict pain and suffering or that any
torture occurred beyond the act of killing A.G. We conclude that
postconviction counsel would not have been able to establish that
appellate counsel's omission of this issue was deficient. Because this court
was already required under NRS 177.055(2) to review the sufficiency of
the evidence regardless of whether the issue was raised by counsel, it
would not be objectively unreasonable for appellate counsel to focus their
presentation on other issues, particularly considering the page limits on
appellate briefs. Additionally, this court's mandatory review of this
aggravating circumstance on direct appeal and conclusion that sufficient
evidence supported it, Weber, 121 Nev. 587, 119 P.3d at 130, belies any
argument that appellate counsels' omission of the issue prejudiced Weber.
Because the appellate-counsel claim was without merit, postconviction
counsel was not ineffective for omitting it.
Second, Weber asserts that appellate counsel should have
argued that the torture aggravating circumstance failed to sufficiently
narrow the class of defendants eligible for the death penalty because it
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"overlapped with the definition of 'murder by torture." In Hernandez v.
State, this court held "the definition of torture murder performs a
constitutionally satisfactory narrowing function" and therefore the State is
allowed to charge first-degree murder by torture and allege an
aggravating circumstance based on the same act or acts of torture. 124
Nev. 978, 983-85, 194 P.3d 1235, 1239-40 (2008), overruled on other
grounds by Armenta-Carpio v. State, 129 Nev., Adv. Op. 54, 306 P.3d 395
(2013). Given that holding, Weber was not prejudiced by postconviction
counsel's omission of this appellate-counsel claim.
Third, Weber contends that appellate counsel should have
argued that the torture aggravating circumstance is unconstitutionally
vague and overbroad because this court has inconsistently adhered to the
requirement that the torture must be beyond the act of killing itself. His
substantive attack on the aggravating circumstance lacks merit as a
general matter and as specifically applied in this case. Therefore, he was
not prejudiced by postconviction counsel's omission of this appellate-
counsel claim.
Redundant felony aggravating circumstances
Weber argues that postconviction counsel should have
asserted that appellate counsel was ineffective for not challenging the
felony aggravating circumstances that were based on his burglary and
kidnapping convictions on the ground that they were redundant to the
charges of murder because neither had an independent purpose apart
from the killing. The redundancy analysis, which focuses on whether
multiple convictions for the same or different offenses are permissible (and
has recently been rejected by this court), see Jackson v. State, 128 Nev.,
Adv. Op 55, 291 P.3d 1274, 1281-82 (2012) (observing that redundancy
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centers on whether the "fact-based same conduct" may support multiple
convictions), does not work in this context because the felony aggravating
circumstances are not substantive offenses. The fact that these
aggravating circumstances are related to the circumstances of the killing
is not unusual. Thus, even if appellate counsel's failure to come up with
this novel argument fell below an objective standard of reasonableness,
that omission• did not prejudice Weber. Postconviction counsel therefore
was not ineffective for omitting this appellate-counsel claim.
Weber next contends that postconviction counsel should have
asserted that appellate counsel was ineffective for not challenging the
prior-violent-felony-conviction aggravating circumstance under NRS
200.033(2)(b) based on kidnapping KG. because the State also used A.G.'s
kidnapping to support an aggravating circumstance under NRS
200.033(4). NRS 200.033(2)(b) provides that first-degree murder may be
aggravated where the defendant• has a prior conviction for a "felony
involving the use or threat of violence to the person of another and the
provisions of subsection 4 do not otherwise apply to that felony." (Emphasis
added). Subsection 4 provides that first-degree murder may be aggravated
where a defendant committed the murder during the commission (or
attempted commission) of an enumerated felony, including kidnapping.
Because the State alleged that A.G.'s murder was aggravated because it
was committed during a kidnapping, it could not also seek the death
penalty by using Weber's conviction for kidnapping A G as a separate
aggravating circumstance. While appellate counsel should have
challenged this dual use of A.G.'s kidnapping and postconviction counsel
should have raised the appellate-counsel claim, the elimination of this
aggravating circumstance would not have led to a different outcome on
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appeal or in the prior postconviction proceeding. In particular, after
striking an aggravating circumstance, this court would have reweighed
the aggravating and mitigating circumstances or conducted a harmless-
error review. See Clemons v. Mississippi, 494 U.S. 738, 741 (1990).
Considering the numerous remaining aggravating circumstances and the
mitigating evidence presented, we conclude that there is no reasonable
probability that this court would have reversed the death sentence.
Therefore, Weber cannot show prejudice based on postconviction counsel's
omission of this claim.°
Issues related to burglary
Weber argues that postconviction counsel should have
challenged appellate counsel's failure to challenge the aggravating
circumstance based on burglary and his burglary convictions. Weber
asserts that the issue unreasonably omitted by appellate counsel is a
constitutional challenge to Nevada's definition of burglary on the ground
that it is overbroad and vague because it applies to a person who enters
his own home with the intent to commit larceny or a felony. But the
omitted appellate argument is more properly described as a challenge to
the sufficiency of the evidence to support the burglary aggravating
circumstance and convictions and that is the way it was presented in the
petition filed below.
Recently in State v. White, we explained that under Nevada
law "a person with an absolute right to enter a structure cannot commit
°Pursuant to NRS 200.033(2)(b), we strike the prior-violent-felony-
conviction aggravating circumstance that was based on Weber's conviction
for kidnapping A.G.
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burglary of that structure." 130 Nev., Adv. Op. 56, 330 P.3d 482, 485-86
(2014). The State therefore had the burden to prove that Weber did not
have an absolute, unconditional right to enter the home at the time the
crimes occurred. See People v. Gill, 70 Cal. Rptr. 3d 850, 866 (Ct. App.
2008) (observing that the prosecution "must prove that a defendant does
not have an unconditional possessory right to enter his or her family
residence" to sustain a burglary conviction). As White merely articulated
the substantive law on burglary as it has always been in Nevada,
appellate counsel could have challenged the burglary convictions and
felony aggravating circumstance.
Whether appellate counsel's failure to do so and postconviction
counsel's failure to raise the appellate-counsel claim fell below an objective
standard of reasonableness and prejudiced the defense is not entirely clear
from the record. The evidence presented at trial seems to show •that
Weber moved into the family's residence early in his relationship with
Kim and that, although he moved out on occasion when the relationship
was on the rocks and kept personal belongings at both the family's home
and his mother's home, Weber had resumed his relationship with Kim
about one week before the murders and was living in her house at that
time. This evidence thus suggests that Weber had an absolute,
unconditional right to enter the home at the time of the murders. The
evidence is less clear with respect to the second burglary charge related to
the events of April 14, 2002. At that point, Weber had killed Kim and A.G.
and fled Las Vegas, so he arguably no longer had an absolute,
unconditional right to enter the home. Cf. People v. Ulloa, 102 Cal. Rptr.
3d 743 (Ct. App. 2009) (discussing various circumstances where defendant
may no longer have unconditional possessory right to enter residence).
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Under the circumstances, we conclude that an evidentiary hearing is
warranted to determine whether the postconviction-counsel claim has
merit as to the failure to assert an appellate-counsel claim based on the
omitted challenge to the burglary convictions.
In contrast, even if a challenge to the burglary aggravating
circumstance would have been successful, Weber cannot demonstrate the
prejudice prong of the ineffective-assistance claim. Although a successful
challenge to the aggravating circumstance might have resulted in this
court striking the aggravating circumstance, it would not have afforded
Weber relief from the death sentence. In particular, after reweighing the
aggravating and mitigating circumstances or conducting a harmless-error
review, we conclude that there is no reasonable probability that this court
would have reversed the death sentence considering the numerous
remaining aggravating circumstances and the mitigating evidence
presented. Therefore, Weber failed to demonstrate prejudice resulting
from postconviction counsel's failure to raise an appellate-counsel claim
challenging this aggravating circumstance. 7
7 To the extent Weber argues that he is actually innocent of the
death penalty due to the invalidity of the aggravating circumstances, his
claim lacks merit. After striking the prior-violent-felony-conviction
aggravating circumstance based on Weber's conviction for kidnapping A.G.
and even accepting his argument regarding the aggravating circumstance
based on burglary, other valid aggravating circumstances remain and
therefore he is not actually innocent of the death penalty. See Lisle v.
State, 131 Nev., Adv. Op. 39, 351 P.3d 725, 734 (2015) (observing that only
aggravating circumstances are relevant to a gateway claim that the
defendant is actually innocent of the death penalty).
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Cumulative error
Weber contends that based on the cumulative effect of
postconviction counsel's failure to raise the claims argued here, there is a
reasonable probability that the result of the prior postconviction
proceeding would have been different. Assuming that multiple
deficiencies in counsel's performance may be considered cumulatively to
establish prejudice, see McConnell v. State, 125 Nev. 243, 259 n.17, 212
P.3d 307, 318 n.17 (2009), we are not convinced that the cumulative
deficiencies in postconviction counsel's performance—omitting appellate-
counsel claims challenging the prior-violent-felony-conviction aggravating
circumstance based on his kidnapping conviction, the felony aggravating
circumstance based on burglary, and the burglary convictions—prejudiced
Weber. 8
8 We reject Weber's contention that the district court erred by
denying his claim that the cumulative effect of the errors committed at
trial, on direct appeal, and during postconviction proceedings entitle him
to a new trial and penalty hearing. Finally, we reject Weber's argument
that postconviction counsel should have asserted that appellate counsel
was ineffective for not arguing that execution by lethal injection as
administered in Nevada constitutes cruel and unusual punishment. See
McConnell v. State, 125 Nev. 243, 246-49, 212 P.3d 307, 310-11 (2009)
(holding that challenge to lethal injection protocol is not cognizable in
postconviction habeas proceedings).
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Having considered Weber's claims, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART and REMAND this matter for an
evidentiary hearing based on the omitted challenge to the burglary
convictions.°
t A Yi ez—sif
Parraguirre u
Lee-4.-c J.
Hardesty Douglas
Cherry Gibbons
PICKERING, J., concurring in part and dissenting in part:
In 2003, a jury convicted Weber of 17 felonies, including two
counts of murder, and sentenced him to death. The 15 non-murder felony
convictions were for acts associated with the murders, including two
burglary convictions, for unlawfully entering the victims' residence with
intent to commit felonies therein. Weber appealed, this court affirmed,
Weber v. State, 121 Nev. 554, 119 P.3d 107 (2005), and in 2006, the United
States Supreme Court denied certiorari, Weber v. Nevada, 546 U.S. 1216
(2006). There followed Weber's first petition for habeas corpus, which the
district court denied, which order this court affirmed on appeal, Weber v.
9 The Honorable Nancy Saitta, Justice, did not participate in the
decision in this matter.
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State, Docket No. 50613 (Order of Affirmance, July 20, 2010); and Weber's
second petition for habeas corpus, which the district court denied in
December of 2012, from which Weber again appealed. It is this appeal
from the district court's order denying Weber's second petition for a writ of
habeas corpus that is now before the court.
The majority upholds the district court's order denying
Weber's second petition for habeas corpus as to his murder convictions and
the sentence of death he received. However, it reverses and remands for
an evidentiary hearing on Weber's claim that first postconviction counsel
was ineffective for not asserting a claim that appellate counsel was
ineffective in not challenging Weber's burglary convictions on direct
appeal. The majority orders these further proceedings even though the
majority also finds, ante at 29, that assuming Weber succeeds in
eliminating the burglary convictions, this will not, as a matter of law,
"afford[ ] Weber relief from the death sentence," because Weber's murder
conviction and death sentence stand with or without the burglary
convictions as aggravators. While I otherwise join the majority's order, I
submit that the burglary convictions are final and unreviewable except to
the extent they affect the death sentence, which the majority holds, as a
matter of law, they do not. I therefore would not remand this matter for
an evidentiary hearing but would instead affirm the district court's order
in its entirety.
The special rules afforded postconviction petitioners sentenced
to death—the statutory right to the appointment of first postconviction
counsel, NRS 34.820, and the right to the effective assistance of that
counsel, Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997);
McKague v. Warden, 112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996)—
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are a departure from the rule that otherwise limits habeas corpus
petitioners to one time through the system. Given the unique and
irrevocable nature of the death penalty, the Legislature deemed it
appropriate to provide additional protections for those petitioners facing
the ultimate sentence. But those protections, I believe, extend solely to
matters that subject a defendant to the death penalty. Cf. McKinney v.
State, 992 P.2d 144, 154 (Idaho 1999) (noting that postconviction
procedures affording additional review in death penalty cases do not
extend to non-death sentences imposed on related convictions obtained in
the same underlying trial).
There is a long-standing legal maxim that "where the reason
of a rule cease[s] the rule also cease[s]." Funk v. United States, 290 U.S.
371, 384 (1933); see also Reno Smelting, Milling & Reduction Works v.
Stevenson, 20 Nev. 269, 279, 21 P. 317, 320 (1889) ("It is contrary to the
spirit of the common law itself to apply a rule founded on a particular
reason to a case where that reason utterly fails—cessante ratione legis,
cessat ipsa lex."). Here, the reason behind the additional review NRS
34.820 affords, in our interpretation of it, ceases to exist with respect to
postconviction-counsel claims based on matters that do not subject a
defendant to capital punishment, as to which the judgment of conviction
has become final. It naturally follows that a second postconviction petition
should be limited only to postconviction-counsel claims related to the
capital offense and the death sentence. To cast a wider net to capture
matters related to Weber's burglary convictions that have no bearing on
the capital offense or the death sentence is, in my view, a misuse of the
judicial process and contributes to the seemingly endless delays in
bringing capital cases to a close.
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Therefore, while I concur in large part, I respectfully dissent
from the majority's decision to remand this matter for an evidentiary
hearing on Weber's postconviction-counsel claim related to his burglary
convictions.
Picts ul
t;A
Pickering
cc: Hon. Douglas Smith, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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