United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
has paid the filing fee. The Court has reviewed the petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts. The Court will dismiss
some grounds. The Court will serve the petition upon
respondents for a response to the remaining grounds.
and a co-defendant were tried in state district court. The
jury found petitioner guilty of burglary, conspiracy to
commit robbery, robbery with the use of a deadly weapon, and
first-degree murder with the use of a deadly weapon. Under
NRS § 175.552(1)(a), the jury set the penalty for
first-degree murder at life imprisonment without eligibility
for parole. The state district court judge set the
remaining penalties. (ECF No. 1-1 at 28.) Petitioner's
direct appeal and state post-conviction habeas corpus
petition were unsuccessful.
grounds 1 through 11, petitioner has copied his opening brief
on direct appeal.
4 is a claim that the trial court erred when it denied
petitioner's motion to impanel a separate jury and
alternative motion to sever his trial from the
co-defendant's trial. A joint trial with petitioner, for
whom the prosecution was not seeking the death penalty, and
the co-defendant, for whom the prosecution was seeking the
death penalty, does not violate the Sixth Amendment's
right to trial by an impartial jury. See Buchanan v.
Kentucky, 483 U.S. 402 (1987). Ground 4 is without merit on
7 contains three claims that the trial court gave erroneous
instructions. Two claims are without merit.
7(1) is a claim that the trial court instructed the jury that
robbery was a general intent crime, and he argues that
robbery should be considered a specific intent
crime. This is purely a matter of state law that
does not implicate either the Constitution or the laws of the
United States. See 28 U.S.C. § 2254(a). Ground
7(1) is without merit on its face.
7(3) is a claim that the jury instruction defining reasonable
doubt is unconstitutional. The Court of Appeals for the Ninth
Circuit has held that it is constitutional. Ramirez v.
Hatcher, 136 F.3d 1209 (9th Cir. 1998). Ground 7(3) is
without merit on its face.
8 contains three claims that the trial court gave erroneous
instructions. One claim is without merit.
8(B) claims that the instruction defining premeditation and
deliberation blurred the distinction between the two elements
of first-degree murder. Petitioner alleges that this
instruction was given:
Premeditation is a design, a determination to kill distinctly
formed in the mind by the ...