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Nika v. Filson

United States District Court, D. Nevada

March 16, 2017

AVRAM VINETO NIKA, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

         Introduction

         This action is a petition for a writ of habeas corpus by Avram Vineto Nika, a Nevada prisoner sentenced to death. There are, before the court, a motion to dismiss filed by the respondents, and motions filed by Nika for leave to conduct discovery and for an evidentiary hearing. In this order, the court grants respondents' motion to dismiss in part and denies it in part, and denies Nika's motions for leave to conduct discovery and for an evidentiary hearing without prejudice.

         Background Facts and Procedural History

         Nika's conviction and death sentence result from the murder of Edward Smith, on August 26, 1994, on the side of a highway about twenty miles east of Reno. Smith apparently stopped to help Nika, who was stranded with a broken down car; Smith was hit repeatedly on the head with a blunt object, and then killed by a gunshot to the forehead, and his car was stolen. (A statement of facts by the Nevada Supreme Court, based on the evidence at trial, can be found at pages 1-13 of that court's December 30, 1997, opinion, which has been filed as Respondents' Exhibit 81 (ECF No. 111-5, pp. 2-14), and which is published as Nika v. State, 113 Nev. 1424, 951 P.2d 1047 (1997).) (The exhibits referred to in this order as Respondents' Exhibits are found in the record at ECF Nos. 96-125.)

         At the conclusion of a jury trial, on July 20, 1995, Nika was adjudged guilty of first degree murder with the use of a deadly weapon. See Judgment of Conviction, Respondents' Exhibit 52 (ECF No. 109-2). The jury found as an aggravating circumstance that the murder was committed at random and without apparent motive. See id. The jury found that there were no mitigating circumstances sufficient to outweigh the aggravating circumstance. See id. Nika was sentenced to death. See id.

         Nika appealed. On August 23, 1995, the Nevada Supreme Court ordered that “the effectiveness of trial counsel should be reviewed on direct appeal, ” and referred the matter to the state district court for further proceedings in that regard. See Order, Respondents' Exhibit 60 (ECF No. 109-9). On November 7 and 8, 1996, the state district court held an evidentiary hearing regarding the question whether Nika had received effective assistance of trial counsel. See Transcript of Proceedings, Respondents' Exhibits 76, 77 (ECF Nos. 110-1, 111-1). The state district court ruled that Nika received effective assistance of counsel, and ordered the record of those proceedings transmitted to the Nevada Supreme Court. See Transcript of Proceedings, Respondents' Exhibit 77, pp. 99-117 (ECF No. 111-1, pp. 100-18). On December 30, 1997, the Nevada Supreme Court affirmed the judgment of conviction and sentence. See Opinion, Respondents' Exhibit 81 (ECF No. 111-5), published as Nika v. State, 113 Nev. 1424, 951 P.2d 1047 (1997). On that date, the Nevada Supreme Court also dismissed the appeal from the district court's ruling that Nika received effective assistance of his trial counsel. See Order Dismissing Appeal, Respondents' Exhibit 82 (ECF No. 112-1).

         On April 15, 1998, Nika filed a petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus, Respondents' Exhibit 86 (ECF No. 112-5). Counsel was appointed for Nika. See Order Appointing Counsel, Respondents' Exhibit 88 (ECF No. 112-7). Nika filed a supplement to his petition on September 29, 2000. See Supplement to Petition for Writ of Habeas Corpus, Respondents' Exhibit 99 (ECF No. 113-1). The state district court dismissed all but one of Nika's claims, and, following an evidentiary hearing, denied post-conviction relief on the remaining claim. See Order filed March 15, 2001, Respondents' Exhibit 107 (ECF No. 114-8); Transcript of Proceedings, Respondents' Exhibits 122, 123 (ECF Nos. 116-12, 117-1); Findings of Fact, Conclusions of Law and Judgment, Respondents' Exhibit 129 (ECF No. 117-7).

         Nika appealed to the Nevada Supreme Court from the denial of his state-court habeas petition. On September 16, 2004, the Nevada Supreme Court reversed and remanded the case to the state district court, with respect to the claims dismissed by the state district court. See Opinion, Respondents' Exhibit 141 (ECF No. 118-9), published as Nika v. State, 120 Nev. 600, 97 P.3d 1140 (2004). The Nevada Supreme Court ruled that the proceeding regarding issues of alleged ineffective assistance of counsel in conjunction with Nika's direct appeal had been an inadequate forum to determine those issues. See Nika, 120 Nev. at 602, 97 P.3d at 1142. The Nevada Supreme Court affirmed the state district court's denial of relief on the remaining claim, on which the state district court had denied relief on the merits of the claim. See id., 120 Nev. at 607-11, 97 P.3d at 1145-48.

         On remand, Nika filed a second supplemental habeas petition on June 23, 2005. See Second Supplemental Petition for Writ of Habeas Corpus, Respondents' Exhibit 146 (ECF No. 119-1). On January 6, 2006, the state district court filed an order denying Nika relief on the remanded claims. See Order Granting Motion to Dismiss, Respondents' Exhibit 150 (ECF No. 120-3).

         Nika again appealed, and the Nevada Supreme Court affirmed on December 31, 2008. See Opinion, Respondents' Exhibit 165 (ECF No. 122-1), published as Nika v. State, 124 Nev. 1272, 198 P.3d 839 (2008). Nika petitioned the United States Supreme Court for certiorari, and that petition was denied on October 13, 2009. See Notice of Denial of Petition for Writ of Certiorari, Respondents' Exhibit 172 (ECF No. 122-8).

         Nika initiated this federal habeas corpus action on April 7, 2009, and counsel was appointed (ECF Nos. 1, 11). Nika filed an amended habeas petition on March 1, 2010 (ECF No. 18).

         On April 30, 2010, respondents filed a motion to dismiss (ECF No. 41), and, in response, on May 28, 2010, Nika filed a motion for stay (ECF No. 42). On August 27, 2010, the court granted Nika's motion for stay, and stayed this case pending Nika's further exhaustion of claims in state court; the court denied the motion to dismiss as moot (ECF No. 47).

         On April 20, 2010, Nika filed a second state-court petition for a writ of habeas corpus. See Petition for Writ of Habeas Corpus (Post-Conviction), Respondents' Exhibit 174 (ECF No. 123-1). On November 2, 2011, the state district court dismissed the petition. See Order, Respondents' Exhibit 190 (ECF No. 124-10). Nika appealed, and, on July 30, 2014, the Nevada Supreme Court affirmed. See Order of Affirmance, Respondents' Exhibit 196 (ECF No. 125-4). The Nevada Supreme Court denied Nika's petition for rehearing on October 23, 2014. See Order Denying Rehearing, Respondents' Exhibit 200 (ECF No. 125-8). Nika petitioned the United States Supreme Court for certiorari, and that petition was denied on April 27, 2015. See Notice of Denial of Petition for Writ of Certiorari, Respondents' Exhibit 204 (ECF No. 125-12).

         On May 29, 2015, Nika moved to lift the stay of this case (ECF No. 62), and the court granted that motion, and lifted the stay, on June 18, 2015 (ECF No. 68). On August 3, 2015, with leave of court, the Republic of Serbia filed a brief, as amicus curiae in support of Nika (ECF Nos. 69, 72, 84). Also on August 3, 2015, Nika filed a second amended petition for writ of habeas corpus (ECF No. 73), which is now the operative petition in this case.

         Respondents filed their motion to dismiss Nika's second amended petition on May 12, 2016 (ECF No. 95). In that motion, respondents contend that Grounds 1A, 1C, 1D, 1E, 1F3, 1F4, 1F5, 1H, 4B, 5 (in part), 6, 7A, 7C, 7E, 7F, 7G, 7H, 8, 9A, 9B, 9C, 10, 11, 12 and 13 of Nika's second amended habeas petition are barred by the procedural default doctrine; respondents also contend that Ground 6 is not cognizable in this federal habeas corpus action. Nika filed an opposition to the motion to dismiss on October 7, 2016 (ECF No. 132). On that date, Nika also filed a motion for evidentiary hearing (ECF No. 133). On October 24, 2016, Nika filed a motion for leave to conduct discovery (ECF No. 137). On January 27, 2017, respondents filed a reply in support of their motion to dismiss (ECF No. 142), an opposition to the motion for evidentiary hearing (ECF No. 144), and an opposition to the motion for leave to conduct discovery (ECF No. 143). On March 3, 2017, Nika filed a reply in support of his motion for evidentiary hearing (ECF No. 148), and a reply in support of his motion for leave to conduct discovery (ECF No. 150).

         Discussion

         Procedural Default - Legal Standards

         In Coleman v. Thompson, the Supreme Court held that a state prisoner who fails to comply with the state's procedural requirements in presenting his claims is barred by the adequate and independent state ground doctrine from obtaining a writ of habeas corpus in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991) (“Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.”). Where such a procedural default constitutes an adequate and independent state ground for denial of habeas corpus, the default may be excused only if “a constitutional ...


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