Court says judge wrong in granting hearing for killer

Friday, June 10, 2005 | 9:11 a.m.

CARSON CITY -- The Nevada Supreme Court said Thursday that District Judge Michael Cherry was wrong when he granted a hearing to David Robert Riker, sentenced to death for the killing of a man in Las Vegas in 1992.

The court, in a unanimous decision, said Cherry disregarded the law and applied the incorrect legal standards in ordering an evidentiary hearing for Riker. It sent the case back to Cherry to reconsider his decision.

The justices said the law provides that a petition for a writ of habeas corpus must be filed within one year after the Supreme Court denied the first appeal. In this case Riker filed his petition almost eight years after the first appeal was decided.

Riker and Richard A. Walker were charged with murder and robbery in the stabbing death of Kevin Marble in Las Vegas. Riker pleaded guilty and a three-judge panel sentenced him to death. Walker went to trial and received two consecutive life terms without parole.

Riker filed one post-conviction petition in 1996 that was denied. He filed his second in March 2003. The state asked Cherry to dismiss the second petition on grounds it was procedurally barred because of missing the deadline.

Cherry, however, granted an evidentiary hearing and the state appealed to the Supreme Court.

Cherry said he wanted to "make as complete a record as possible in the District Court" so the case would not be sent back to him. He said it would eventually be going to the federal court system.

"I don't want to see it again," Cherry was quoted in the Supreme Court's opinion.

At the hearing before, Cherry told attorneys he sentenced a man to death two weeks before. And he said he had two former clients sitting on death row.

The court said attorneys for Riker must show good cause why the appeal was filed well past the deadline.

It said Cherry must "apply the appropriate rules" in deciding whether the petition by Riker is procedurally barred for being filed so late.

The court also struck down Cherry's order to seal two dozen exhibits filed by Riker. The Clark County district attorney's office sought a discovery order to look at the exhibits but it was denied by Cherry.

Riker also asked for and received an order from Cherry for a protective order for other records that may have had an attorney-client privilege. Riker wanted this order to extend to as long as his murder trial in California was pending.

The court overturned that order and said Riker and Walker are apparently facing trial for the April 1992 murder of John Phippin in Blythe, Calif.