United States District Court, D. Nevada
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
Facts and Procedural History
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.)
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.
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).
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).
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.
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).
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).
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).
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
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).
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.
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).
Default - Legal Standards
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 ...