United States District Court, D. Nevada
TONY M. SMITH, Petitioner,
GREGORY COX, et al., Respondents.
PHILIP M. PRO, District Judge.
Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Tony M. Smith, a Nevada prisoner. ECF No. 5.
I. FACTUAL AND PROCEDURAL HISTORY
This case arises from the shooting death of Kevin Teate. Evidence presented at trial established that the following events occurred on the evening of August 6, 1997. Petitioner Smith and Teate were part of a gathering of people in a parking lot next to a Las Vegas convenience store. Smith and Teate exchanged words. Teate departed in a car to a nearby location, while Smith and his acquaintances walked to the same spot. At that location, additional words were exchanged. In response to Teate insulting Smith's girlfriend, Smith threatened to kill Teate. Subsequently, Teate said something to the effect that it was not a problem and attempted to leave. Smith drew a.38 caliber pistol and shot Teate in the head. Smith handed his gun to a friend, who fired additional shots. One of Teate's friends returned fire. In that exchange, Teate was shot again with a nine millimeter bullet as he lay on the ground. An autopsy revealed that either shot, independently, would have been fatal.
On February 1, 1999, a judgment of conviction was entered pursuant to a jury verdict finding Smith guilty of first degree murder with use of a deadly weapon. Smith was sentenced to two consecutive terms of life without the possibility of parole. Smith appealed.
On January 30, 2001, the Nevada Supreme Court filed an order of affirmance. On November 1, 2001, Smith filed a state post-conviction petition for a writ of habeas corpus. Although counsel was appointed in February of 2002, no activity appears on the docket until 2005, when new counsel was appointed. In April of 2008, that counsel moved to withdraw, declaring that all communication with Smith had been unsuccessful. That motion was granted. While the court docket indicates that the case was "statistically closed" in October of 2010, it appears as if the state court has yet to enter a final order with respect to Smith's petition.
This court received Smith's federal habeas petition on October 21, 2011. After payment of the filing fee, the petition was filed on December 9, 2011.
II. STANDARDS OF REVIEW
This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:
28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...