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Nika v. Gittere

United States District Court, D. Nevada

June 12, 2019

AVRAM VINETO NIKA, Petitioner,
v.
WILLIAM GITTERE, et al., Respondents.

          ORDER

          JAMES C. MAHAN UNITED STATES DISTRICT JUDGE

         Introduction

         This action is a petition for a writ of habeas corpus by Avram Vineto Nika, a Nevada prisoner sentenced to death. The case is fully briefed and before the Court for adjudication of the merits of the claims remaining in Nika's second amended habeas petition. Having considered the briefing and the exhibits submitted by the parties, the Court will grant Nika's petition in part and deny it in part. The Court will conditionally grant Nika habeas corpus relief regarding his death sentence, requiring the State to resentence Nika to a non-capital sentence or grant him with a new penalty-phase trial. The Court will deny Nika relief in all other respects, will grant Nika a certificate of appealability regarding certain claims on which relief is denied, and will deny Nika's motions for leave to conduct discovery and for an evidentiary hearing.

         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 east of Reno. On Nika's direct appeal, the Nevada Supreme Court described the crime, as revealed by the evidence at trial, as follows:

Appellant Avram Nika (“Nika”) left Aptos, California, where he lived with his wife Rodika, between noon and 1 p.m. on August 26, 1994, and was traveling to Chicago so that he could fly from there to Romania to visit his sick mother. Nika's car was full of clothes, tools, electronic items, and a small television. According to Rodika, Nika was from Romania and spoke fluent Serbo-Croatian, spoke almost fluent Romanian, and spoke only broken English. Rodika also stated that Nika did not speak colloquial English and that she had to be present when he had dealings with merchants, government officials, and other people. Nika was driving a brown Chrysler New Yorker, and testimony indicated that it takes approximately five and one-half hours to drive from Aptos to Reno. Nika's car broke down at mile marker 34, approximately twenty miles east of Reno.
Edward Smith (“Smith”) was employed as a manager at a Burger King in Reno. Smith left work to go home at approximately 8 p.m. to 8:10 p.m. on August 26, 1994. The Smith family lived in Fallon, and Smith had made plans with his wife and child to attend a movie that started at approximately 9:45 p.m. Smith drove a silver 1983 BMW, and Mrs. Smith testified that the BMW often would not start, that they had to push start it, and that they had recently bought a new battery for the BMW in July 1994. Testimony indicated that it takes approximately one hour to one hour and fifteen minutes to get from the Burger King in Reno to the Smith's home in Fallon and that it takes approximately forty to forty-five minutes to get from the Burger King to mile marker 34.
Several people saw Nika standing by his car at mile marker 34 on August 26, 1994. [Footnote: Robbie Morrow stated that around 6:20 p.m. she noticed a “junky” looking brown Chrysler on the side of the road with the hood and trunk cover up. Morrow stated that she saw someone who appeared “dirty and grubby” in very short cut-off pants, a yellow tank top shirt, and white tennis shoes lying under the front of the car, apparently checking the engine. Robin Aguire, who was in prison at the time of trial on an unrelated drug charge, testified that she and her mother were driving on I-80 between 6 p.m. and 6:30 p.m. and saw a brown car with its hood up. She identified Nika as the man standing next to the car. Susan Tarbet stated that at approximately 7:20 p.m. or 7:25 p.m. she saw a man leaning against a brown car with his arms crossed. She also testified that she believed that the man she saw on the side of the road was Nika. Jewell Waters was following her husband home from Reno and passed mile marker 34 at approximately 7:30 p.m. Jewell saw the brown Chrysler and identified Nika as the person in the car. Michael Waters, Jewell's husband who was driving ahead of Jewell, also indicated that Nika was the man that he saw by the car.] Edward Sanchez was driving a maroon Nissan Sentra and was flagged down by Nika at approximately 7:45 p.m. Sanchez pulled his car in front of Nika's and backed up toward the brown Chrysler. Nika approached Sanchez's passenger window and said his car had broken down and that he needed help. Sanchez got out of his car and attempted to find out what was wrong with Nika's car. Sanchez stated that Nika had a thick accent, strong body odor, a day's beard growth and wore blue cut-off jeans. Sanchez offered to give Nika a ride, but Nika could not decide if he wanted to accept the ride and instead had Sanchez call a tow truck for him. Sanchez stated it was shortly after 8 p.m. when he got back into his car, perhaps 8:02 p.m. Sanchez stopped at a truck stop in Fernley and asked one of the clerks to call a tow truck for Nika.
Davina Boling was driving with her boyfriend on I-80 and saw the brown Chrysler on the side of the road around 8:30 p.m. They pulled over to help Nika, whom Boling described as looking frustrated, and Nika told them he had been there for three or four hours and needed a tow truck. They offered him a ride, which he declined, but he requested that they call a tow truck for him. As they left, Nika told them “Good-bye. Thank you, God bless.”
Debra Fauvell (“Debra”) stated that at approximately 8:40 p.m. she and her husband passed mile marker 34. She stated that she saw two cars on the side of the road, the first was a tan or light colored, four-door sedan which did not have any lights on and which had both driver's side doors open. About 150 feet in front (east) of the tan car she saw a dark brown sedan-type car with its hazard lights on. She saw two people standing by the first (most westerly) car. The person standing by the rear passenger side of the first car had a medium build, was about five feet ten inches tall, and was wearing a white T-shirt and light colored, faded jean-type pants. The second person was twenty feet in front of the first person, was bigger and had bushier hair than the first person, and was walking in a southeasterly direction away from the cars. Debra was shown a picture of Smith and stated that the second man's stature was consistent with Smith's. Daniel Fauvell, Debra's husband, testified that he was driving the car. He stated that he was focused on driving and did not see much, but the first car that they passed did not have any lights on, the second car had its hazard lights on, and one person was standing next to the first car.
Trooper Terry Whitehead of the Nevada Highway Patrol testified as follows. He came into contact with Nika while patrolling the highway on August 26, 1994. Whitehead was traveling westbound on I-80 when he saw a stranded BMW on the eastbound shoulder with its hazard lights on. He made a U-turn across the highway and went to help the stranded motorist. As Whitehead approached the BMW, he passed a brown Chrysler with no lights on. Because the Chrysler had no lights on, the hood was not open, and nobody was in the car, he drove further and pulled behind the BMW. The dispatch log indicates that he ran a license plate check on the BMW at 8:51 p.m. (the license plate was a Nevada plate), and he also looked at the BMW to see if it had indications that it was stolen. There were no people or items of personal property in the BMW. Because the dispatcher did not return his inquiry, he assumed that the BMW was not stolen and started to back up to check out the Chrysler, which was about 400 feet behind (west of) the BMW. As Whitehead backed up, he saw someone waving a flashlight from a southeasterly direction apparently trying to get his attention. The flashlight was coming from the area where Smith's dead body was found the next day. Whitehead got out of his car and asked Nika what was wrong wit his car; Nika pointed to the BMW and stated, “Everything's wrong with it.” Whitehead asked Nika if he needed a ride. Nika declined and instead asked for a tow truck. Whitehead said he would call one and asked Nika if there was anything else he could do for him. Nika stated he could use a ride to Chicago. Whitehead stated he did not patrol that far. At 8:53 p.m. Whitehead requested a tow truck for Nika. Whitehead stated that Nika was wearing white high-top tennis shoes and did not seem more nervous than any other person who had been stranded at night on the side of the road. He also stated that he did not see any blood on Nika's shoes or fanny pack and that he never asked Nika his name. Whitehead left the scene at 8:56 p.m. to answer a call for back-up assistance on a DUI case.
Karl Younger testified for the defense. He stated that he worked for Anderson Towing and received a call at his home in Reno on August 26, 1994, at 8:45 p.m. requesting tow truck assistance at mile marker 34 for a Chrysler New Yorker. [Footnote: This call was apparently made by either Sanchez or Boling.] At approximately 9:15 p.m., Younger saw the Chrysler and backed up toward it to prepare to tow it, at which time he noticed two other cars about sixty yards in front of (east) the tow truck. The first car in front of Younger was a silver BMW with out-of-state license plates and its lights on. The second car, a blue or brown Nissan or Datsun which also had its lights on, was in front of the first car. As he backed up to the Chrysler, two people approached the tow truck and told him that the Chrysler needed oil, that they had taken the driver to town to get the oil, and that the tow truck was no longer needed. Neither of these two men spoke with a thick accent and both spoke perfect English. Younger also noticed five to seven other people with flashlights in the area where Smith's body was eventually found. Younger then left the scene.
Loni Kowalski testified that she worked at Hanneman's Tow Service and received a call at 8:53 p.m. from the Highway Patrol requesting a tow truck for a silver BMW. At 8:57 p.m. she called Jerry Turley, an employee who was on call but at his own home, to tell him to respond to the request. Turley testified that he drove west from Fernley toward mile marker 34, looking on both sides of the highway for the silver BMW. He did not see the BMW and called Kowalski to inform her of such. Kowalski told Turley to keep looking, and Turley eventually saw two cars on the eastbound shoulder, exited the freeway and re-entered going eastbound, and put his flashers on as he arrived at the two cars. He noticed that neither car was a silver BMW, turned his flashlights off, and called Kowalski at 9:49 p.m. to tell her that he could not find the BMW. Turley stated that one car was a large dark car that could have been a Chrysler and that the other car was a smaller domestic car, like a Mercury Monarch or Ford Granada, which had its flashers on. He saw two people standing by the Chrysler but could not describe them.
On August 27, 1994, Ray Hansen, a brakeman for Southern Pacific Railroad, noticed what he thought was a body lying next to the fence between the railroad tracks and I-80. The police were called, and a trooper found the body. Careflight was also called because it was first believed that a motorcycle accident had occurred and that medical attention was required. The Careflight helicopter landed approximately fifteen to fifty feet from the body, and the medics checked the body and discovered that the person was dead.
David Billau was the crime scene investigator. He stated that the Careflight helicopter which landed near the crime scene could have disturbed the crime scene. He described the crime scene as follows: the Chrysler was parked off the shoulder of the eastbound lane of I-80; south of the car was a small hillside; south of the hillside was a barbed wire fence under which Smith's body was dumped; and south of the fence and the body were the railroad tracks. Drag marks in the dirt extended from the Chrysler to where the body was found. By the Chrysler's rear passenger tire was a rock with pooled blood on it. By the front tire was an area of red stained dirt in which a bullet and human hair were found. A spent shell casing was found a few feet in front of the red stained dirt. Smith's body was found under the barbed wire fence and his pants were hanging from the fence. His wallet was found with money still in it lying next to his body. Smith had been shot in the forehead.
The police traced the brown Chrysler to Avram Nika and an address in Chicago. On August 29, 1994, the Washoe County Sheriff's office called the Chicago police for assistance in locating Nika. Chicago Police Detective Tony Villardita and his partner discovered several addresses for Nika and attempted to locate him. They saw Nika exit a silver BMW, and when they asked him his name, Nika gave them a false name. Based on this information they arrested Nika for possession of a stolen vehicle and read him his Miranda rights. Nika apparently told the police that he understood his rights and that he would waive those rights and speak to them.
Nika first denied any knowledge of the BMW and said that he had walked to his house. When the police told him that they saw him in the car and that they had found the car key in his pocket, Nika said that the car belonged to his friend, but that he did not know his friend's name. The police then told Nika that the BMW was involved in a murder outside Reno. Nika said that he had left Aptos in his Chrysler, arrived in Reno at around 2 p.m., went to a casino to eat, and when he came out of the casino his car was gone but his license plates were still there. At that point three males pulled up and offered to sell the BMW to him for $300.00. He took the offer, put his plates on the car, and drove to Chicago. He also stated that he made no other stops in Reno and that the car had no mechanical problems.
The police then told Nika that the BMW was seen on the side of I-80, and Nika then said that the BMW had an oil and antifreeze problem about thirty miles east of Reno, several people stopped to help him, and he eventually got the car restarted. Nika said that he did not see his stolen Chrysler where the BMW broke down. The police told him that witnesses had seen both cars on the side of the road. Nika then told the police that he was “ready to tell the truth, ” and he said that he left the casino in his Chrysler and had car problems about thirty miles east of Reno. He said several people stopped to help him, and then the same three males he described earlier stopped to help him and offered to sell him the BMW for $300.00. He bought the car, changed the license plates, and loaded his personal property into the BMW. Nika also stated that just as he was ready to leave and while the three males were still at the scene, a police officer stopped to help him. Nika told the officer that the BMW was experiencing problems but that he was able to start it, and then he drove to Chicago. Nika also stated that he went to his mother-in-law's garage in Chicago to unload his personal property, drove to get something to eat, and then was arrested by Villardita and his partner. After this questioning was conducted, John Yaryan (“Yaryan”), the Washoe County Sheriff's deputy who had flown to Chicago, questioned Nika. However, the district judge suppressed this statement based on the fact that Nika had invoked his right to remain silent and his right to counsel and that Yaryan continued to question Nika at length. The State has not argued that the suppression was improper.
The police obtained consent to search the garage of Nika's mother-in-law. They found a fanny pack, tennis shoes, and blue denim cut-off jeans, all of which were tested by forensic investigators. The forensic investigators found blood spatter on all three items, and DNA testing indicated that the blood was consistent with that of Smith and excluded Nika as a source. The forensic investigators stated that at a minimum, 1 in 8, 800 people had the same DNA pattern they discovered.
Nika was extradited from Chicago to Reno and was booked into Washoe County jail on September 1, 1994. During Nika's incarceration, Nathanial Wilson (“Wilson”), an inmate at the Washoe County jail, befriended Nika. Wilson testified to statements made by Nika regarding the events on I-80. Specifically, Nika told Wilson that his car had broken down, a man stopped to help him, the man called him a “motherf -----, ” he hit the man in the head with a crowbar, and then shot him in the head. Nika stated that in Romania, his country of origin, you did not use the word “motherf -----, ” and that you could be killed for calling somebody that name. Nika stated that the victim was lying on the ground when he was shot in the head, that he tried to hide the body in some bushes, and that he killed the man because “he needed to get to Chicago.” Nika stated that he hid the gun, which was an automatic pistol, about five miles from the crime scene. (The gun was never found despite an extensive search.) Nika told him that he had taken the battery out of his car and put it in the BMW because the BMW would not start. [Footnote: Evidence showed that when the BMW was found in Chicago, it had a “National” brand battery and that the battery purchased by the Smiths in July 1994 was not a National brand battery.]
Wilson was in jail on one count of selling cocaine and stated that he did not receive any deal from the prosecution in exchange for his testimony. However, Wilson spoke to the police for the first time on October 11, 1994, and was released from jail and granted probation on November 18, 1994, after pleading guilty to what he called “possession for sale, ” a lesser crime than that with which he was originally charged.
Dr. Anton Sohn (“Dr. Sohn”) conducted the autopsy on Smith. He found three blunt trauma wounds on the back of Smith's head where Smith had been hit with an object heavy enough and with enough force to fracture the skull beneath each wound. Dr. Sohn testified that at least one of the blunt trauma wounds was delivered to the skull while Smith was lying on the ground face down. On Smith's forehead was a bullet wound which Dr. Sohn classified as a “contact wound, ” stating that it was created when the muzzle of the gun was placed directly against the forehead and the gun was fired. Dr. Sohn found an exit wound in the back of Smith's head and found other lacerations on Smith's face. Dr. Sohn found scrapes or “drag marks” on Smith's chest which were consistent with Smith's body being dragged in the dirt. Dr. Sohn stated that the gunshot to the head was the cause of death and that the blunt force traumas were inflicted before Smith was shot.
At the conclusion of the trial, the jury found Nika guilty of first degree murder with the use of a deadly weapon. At the penalty hearing, the prosecution sought the death penalty and alleged three aggravating circumstances as follows:
1. Evidence that the murder was committed by AVRAM NIKA during the commission of or attempt to commit a robbery. NRS 200.033(4).
2. Evidence that the murder was committed to avoid or prevent a lawful arrest. NRS 200.033(5).
3. Evidence that the murder was committed upon one or more persons at random and without apparent motive. NRS 200.033 (9).
Anna Boka (“Anna”), Nika's mother-in-law, testified at the penalty hearing as follows. Nika had a violent temper, and in 1991 when she did not give Nika money for a trip, he threatened to kill both her and Rodika, Anna's daughter and Nika's wife. Peter Boka (“Peter”), Anna's husband, told Anna that in September 1993 he and Nika had gotten into an argument and Nika put a gun to Peter's head. (Peter later testified that he never saw a gun and that Nika only threatened to shoot him.) Anna stated on cross-examination that Peter was a very heavy drinker and had instigated the fight in September 1993. In October 1993, Nika stated that he would kill Anna if Rodika did not come back to live with him. Also in October 1993, Nika wanted to see his and Rodika's baby who was staying at Anna's house, but Peter refused to allow Nika in the house. At that point Nika flashed a gun and told Anna that if Peter did not let him see the baby, he would kill Peter. Finally, in November 1993, Nika told Anna that if Rodika did not leave Anna's house in Chicago and come back to him, he would burn down Anna's house.
Mary Ellen Izzo testified that Nika had raped her in an apartment building in Chicago in December 1989. She stated that he was helping people move into or out of the building, that she met him in the hallway, and that he later told her that his mother, who was the manager of the apartment, wished to see her. [Footnote: The woman whom Izzo believed to be Nika's mother was in fact Nika's aunt. Apparently, Nika was the maintenance man in the apartment building.] She went into the manager's apartment with Nika and he locked the door and told her to come into the bedroom because that was where his mother was. When she was in the bedroom, Nika pushed her on the bed, hit her, and sexually penetrated her. Izzo escaped after Nika let her up, and she then called the police. Nika was never prosecuted for the alleged crime, and Izzo stated that she did not proceed with the prosecution because Nika's aunt threatened to evict her if she proceeded, she had three children to take care of, and she did not have enough money to move. Izzo stated on cross-examination that she had bruises on her face and breasts as a result of the rape; however, a hospital report indicated that she had only red marks on her neck. The defense attorney asked Izzo if she was a drug user, and Izzo stated that she was not. Izzo stated that shortly after this event she received government housing and moved.
Rodika, Nika's wife, testified for the defense as follows. In reference to the alleged sexual assault, Izzo had approached Rodika's family and stated that if they did not want to see Nika jailed for rape, they had better pay her some “big money.” She had heard that Izzo had a drug problem and had hung her children out of her second story window. In reference to the September 1993 incident between Nika and Peter, the police were called, and they never found a gun. She acknowledged on cross-examination that Nika was violent and had made death threats against her and her family on several occasions.
Dorina Vukadin, Rodika's sister, also testified for the defense. She stated that Nika played sports with her children and that her children liked Nika, but she also stated that he was a stern disciplinarian.
On July 10, 1995, the jury found beyond a reasonable doubt that the murder committed by Nika was aggravated by the fact that the murder was committed upon Smith at random and without apparent motive. The jury also found that no mitigating circumstances existed. [Footnote: The mitigating circumstances offered to the jury were as follows:
1. The defendant has no significant history of prior criminal activity.
2. The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.
3. The victim was a participant in the defendant's criminal conduct or consented to the act.
4. The defendant was an accomplice in a murder committed by another person and his participation in the murder was relatively minor.
5. The defendant acted under duress or under the domination of another person.
6. The youth of the defendant at the time of the crime.
7. Any other mitigating circumstance.]
Consequently, the mitigating circumstances did not outweigh the aggravating circumstances found; and therefore, a sentence of death was imposed.

Opinion, Respondents' Exh. 81, pp. 1-13 (ECF No. 111-5, pp. 2-14) (published as Nika v. State, 113 Nev. 1424, 951 P.2d 1047 (1997)).

         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. See Order, Respondents' Exh. 60 (ECF No. 109-9). On November 7 and 8, 1996, the state district court held an evidentiary hearing regarding the issue whether Nika received effective assistance of trial counsel. See Transcript of Proceedings, Respondents' Exhs. 76, 77 (ECF Nos. 110-1, 111-1). The state district court ruled that Nika did not receive ineffective assistance of trial counsel and ordered the record of those proceedings transmitted to the Nevada Supreme Court. See Transcript of Proceedings, Respondents' Exh. 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 Nika v. State, 113 Nev. 1424, 951 P.2d 1047 (1997). On that date, the Nevada Supreme Court also dismissed Nika's separate appeal from the district court's ruling that he did not receive ineffective assistance of trial counsel. See Order Dismissing Appeal, Respondents' Exh. 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' Exh. 86 (ECF No. 112-5). Counsel was appointed, and, with counsel, Nika filed a supplement to his petition on September 29, 2000. See Supplement to Petition for Writ of Habeas Corpus, Respondents' Exh. 99 (ECF No. 113-1). The state district court dismissed all but one of Nika's claims, and, following an evidentiary hearing, denied relief on the remaining claim. See Order filed March 15, 2001, Respondents' Exh. 107 (ECF No. 114-8); Transcript of Proceedings, Respondents' Exhs. 122, 123 (ECF Nos. 116-12, 117-1); Order Denying Petition for Post-Conviction, Respondents' Exh. 125 (ECF No. 117-3); Findings of Fact, Conclusions of Law and Judgment, Respondents' Exh. 129 (ECF No. 117-7).

         Nika appealed, and on September 16, 2004, the Nevada Supreme Court reversed and remanded the case to the state district court for further proceedings on the claims that had been dismissed. See Opinion, Respondents' Exh. 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 adjudicate 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. 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' Exh. 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' Exh. 150 (ECF No. 120-3). Nika again appealed, and the Nevada Supreme Court affirmed on December 31, 2008. See Opinion, Respondents' Exh. 165 (ECF No. 122-1) (published as Nika v. State, 124 Nev. 1272, 198 P.3d 839 (2008)). Nika then petitioned the United States Supreme Court for certiorari, and his certiorari petition was denied on October 13, 2009. See Notice of Denial of Petition for Writ of Certiorari, Respondents' Exh. 172 (ECF No. 122-8).

         Nika initiated this federal habeas corpus action on April 7, 2009, and counsel was appointed (ECF Nos. 1, 11). With counsel, 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). Nika then filed a motion for stay (ECF No. 42). On August 27, 2010, the Court granted Nika's motion for stay, stayed this case pending Nika's further exhaustion of claims in state court, and 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' Exh. 174 (ECF No. 123-1). On November 2, 2011, the state district court dismissed the petition. See Order, Respondents' Exh. 190 (ECF No. 124-10). Nika appealed, and on July 30, 2014, the Nevada Supreme Court affirmed. See Order of Affirmance, Respondents' Exh. 196 (ECF No. 125-4). The Nevada Supreme Court denied Nika's petition for rehearing on October 23, 2014. See Order Denying Rehearing, Respondents' Exh. 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' Exh. 204 (ECF No. 125-12).

         On May 29, 2015, Nika moved to lift the stay of this case (ECF No. 62). 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's petition (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 Nika's operative petition. Nika's second amended petition asserts the following grounds for relief:

1. Nika's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel.
A. “The county contract under which trial counsel were paid created a conflict of interest that prevented trial counsel from performing effectively.”
B. “Trial counsel were ineffective for failing to investigate and present compelling evidence of Mr. Nika's background, culture, and life history.”
C. “Trial counsel were ineffective in litigating the motion to suppress Mr. Nika's statements to police.”
D. “Trial counsel were ineffective for failing to conduct adequate voir dire.”
E. “Trial counsel were ineffective for failing to move for a change of venue.”
F. “Trial counsel were ineffective throughout the guilt phase of Mr. Nika's trial.”
1. “Trial counsel were ineffective for failing to investigate and present an argument that Mr. Nika was provoked and acted in the heat of passion, or in self-defense.”
2. “Trial counsel were ineffective for failing to investigate and present evidence that Nathaniel Wilson was acting as an agent of the State, and received benefits in exchange for his testimony.”
3. “Trial counsel were ineffective during their opening arguments.”
4. “Trial counsel were ineffective for waiving spousal privilege.”
5. “Trial counsel were ineffective for failing to object to unrecorded bench conferences.”
6. “Trial counsel were ineffective for failing to object to improper jury instructions.”
7. “Trial counsel were ineffective during their closing arguments.”
G. “Trial counsel were ineffective for failing to investigate and present powerful mitigating evidence at the penalty phase of the trial.”
H. “Trial counsel were ineffective throughout the trial proceedings.”
2. Nika's federal constitutional rights were violated “because the guilt phase jury instructions failed to require the jury to find all of the mens rea elements of first-degree murder.”
3. Nika's federal constitutional rights were violated “due to the jury's finding the statutory aggravating circumstance that the murder was committed at random and without apparent motive, which is facially unconstitutional and invalid as applied to Mr. Nika.”
4. Nika's federal constitutional rights were violated “due to the State's actions in actively concealing the executory promise of benefits it made to Nathaniel Wilson, in allowing false testimony in that regard, and in convincing a defense witness that her testimony was no longer needed.”
A. “The State committed misconduct by failing to disclose an executory promise of benefits made to witness Nathanial Wilson.”
B. “The State committed misconduct by preventing the defense from calling Samantha McKendall.”
5. Nika's federal constitutional rights were violated “due to the improper admission of Mr. Nika's custodial incriminating statements in violation of Miranda v. Arizona.
6. Nika's federal constitutional rights, and his rights under an international treaty and international law, were violated because “[t]he State of Nevada and Mr. Nika's trial counsel failed to inform Mr. Nika that he had a right under Article 36 of the Vienna Convention on Consular Relations to notify Serbian consular officials of his arrest and detention.”
7. Nika's federal constitutional rights were violated “because the trial court gave the jury erroneous and unconstitutional jury instructions during Mr. Nika's trial.”
A. The jury instructions “fail[ed] to require that the jury find the statutory aggravation is not outweighed by mitigation beyond a reasonable doubt.”
B. The jury instructions “fail[ed] to instruct the jury that aggravating circumstances needed to be found unanimously, and that mitigating circumstances did not need to be found unanimously.”
C. “The reasonable doubt instruction was unconstitutional.”
D. “The malice instructions were unconstitutional.”
E. “The trial court unconstitutionally instructed the jury on ‘guilt' and ‘innocence.'”
F. The jury instruction regarding commutation violated Nika's federal constitutional rights.
G. “The ‘anti-sympathy' instruction was unconstitutional.”
H. The cumulative effect of the erroneous jury instructions resulted in a violation of Nika's federal constitutional rights.
8. Nika's federal constitutional rights were violated “due to the trial court's improper, repeated ex parte contacts with the State regarding an executory promise of benefits to State's witness Nathanial Wilson.”
9. Nika's federal constitutional rights were violated as a result of prosecutorial misconduct.
A. “The State made several improper arguments during Mr. Nika's trial.”
B. “The State improperly used its peremptory challenges to remove persons from the venire on the basis of gender.”
C. “The State asked improper questions and made improper comments during voir dire.”
10. Nika's federal constitutional rights were violated as a result of “the undue influence of publicity on Mr. Nika's trial.”
11. Nika's federal constitutional rights were violated “because Mr. Nika's capital trial and sentencing and review on direct appeal were conducted before state judicial officers whose tenure in office was not during good behavior but whose tenure was dependent on popular election, and who failed to conduct fair and adequate appellate review.”
12. Nika's federal constitutional rights were violated “because Mr. Nika's direct appeal counsel were ineffective.”
13. Nika's federal constitutional rights were violated as a result of the cumulative effect of the errors Nika alleges.
14. Nika's death sentence is in violation of the federal constitution “because Nevada's lethal injection scheme constitutes cruel and unusual punishment.”

         Second Amended Petition (ECF No. 73), pp. 9-196 (capitalization and punctuation altered in quotations of headings).

         On May 12, 2016, Respondents filed a motion to dismiss Nika's second amended petition (ECF No. 95). The Court granted that motion in part, and denied it in part, on March 16, 2017; the Court dismissed Grounds 7A, 7C, 7E, 7F, 7G, 10 and 11 of Nika's second amended petition. See Order entered March 16, 2017 (ECF No. 151).

         The respondents filed an answer, responding to Nika's remaining claims, on October 20, 2017 (ECF No. 160). Nika filed a reply to the answer on March 26, 2018 (ECF No. 169). Respondents filed a response to Nika's reply on September 14, 2018 (ECF No. 181).

         Along with his reply, on March 26, 2018, Nika also filed a motion for discovery (ECF No. 166) and a motion for an evidentiary hearing (ECF No. 168). Respondents filed an opposition to both of those motions on April 9, 2018 (ECF No. 172). Nika replied on October 4, 2018 (ECF No. 183).

         Discussion

          Standard of Review

         Because this action was initiated after April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir. 2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

         28 U.S.C. § 2254(d) sets forth the primary standard of review under the 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 presented in the State court proceeding.

28 U.S.C. § 2254(d). A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d)(1), “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d)(1), “if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Lockyer, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409). The analysis under section 2254(d) looks to the law that was clearly established by United States Supreme Court precedent at the time of the state court's decision. Wiggins v. Smith, 539 U.S. 510, 520 (2003).

         The Supreme Court has instructed that “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has also instructed that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (AEDPA standard is “a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt” (internal quotation marks and citations omitted)).

         The state courts' “last reasoned decision” is the ruling subject to section 2254(d) review. Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010). If the last reasoned state-court decision adopts or substantially incorporates the reasoning from a previous state-court decision, a federal habeas court may consider both decisions to ascertain the state courts' reasoning. See Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc).

         If the state court denies a claim but provides no explanation for its ruling, the federal court still affords the ruling the deference mandated by section 2254(d); in such a case, the petitioner is entitled to habeas relief only if “there was no reasonable basis for the state court to deny relief.” Harrington, 562 U.S. at 98.

         In considering the petitioner's claims under section 2254(d), the federal court generally takes into account only the evidence presented in state court. Pinholster, 563 U.S. at 185-87. However, if the petitioner meets the standard imposed by section 2254(d), the federal court may then allow factual development, possibly including an evidentiary hearing, and the federal court's review is then de novo. See Panetti v. Quarterman, 551 U.S. 930, 948 (2007); Wiggins, 539 U.S. at 528-29; Runningeagle v. Ryan, 686 F.3d 758, 786-88 (9th Cir. 2012).

         The federal court's review is de novo for claims not adjudicated on their merits by the state courts. See Cone v. Bell, 556 U.S. 449, 472 (2009); Porter v. McCollum, 558 U.S. 30, 39 (2009).

         Procedural Default and Martinez

         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 violation has probably resulted in the conviction of one who is actually innocent, ” or if the prisoner demonstrates cause for the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986).

         To demonstrate cause for a procedural default, the petitioner must “show that some objective factor external to the defense impeded” his efforts to comply with the state procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external impediment must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner bears “the burden of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989), citing United States v. Frady, 456 U.S. 152, 170 (1982).

         In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled that ineffective assistance of post-conviction counsel may serve as cause to overcome the procedural default of a claim of ineffective assistance of trial counsel. The Coleman Court had held that the absence or ineffective assistance of state post-conviction counsel generally could not establish cause to excuse a procedural default because there is no constitutional right to counsel in state post-conviction proceedings. See Coleman, 501 U.S. at 752-54. In Martinez, however, the Supreme Court established an equitable exception, holding that the absence or ineffective assistance of counsel at an initial-review collateral proceeding may establish cause to excuse a petitioner's procedural default of substantial claims of ineffective assistance of trial counsel. See Martinez, 566 U.S. at 9. The Court described “initial-review collateral proceedings” as “collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial.” Id. at 8.

         In the March 16, 2017, order, the Court recognized that Nika raised certain of his claims-Grounds 1A, 1C, 1D, 1E, 1F3, 1F4, 1F5, 1H, 4B, 6, 9A, 9B and 12-for the first time in his second state habeas action, and the Nevada Supreme Court ruled that those claims were procedurally barred and that Nika did not make any showing to overcome the procedural bar. See Order entered March 16, 2017 (ECF No. 151), pp. 7-8. The Court ruled further that, under Martinez, Nika might be able to overcome the procedural default of those claims but declined to rule on the question of the procedural defaults until the merits of the claims were briefed. See id.at 8.

         Respondents argue that Martinez does not provide a means for Nika to overcome any procedural default that results from the state courts' application of the state-law statute of limitations. See Answer (ECF No. 160), pp. 9-10. This argument is without merit. Nika was represented by his first state post-conviction counsel from 1998 until 2009; he filed his second state-court petition for a writ of habeas corpus on April 20, 2010. See Petition for Writ of Habeas Corpus (Post-Conviction), Respondents' Exh. 174 (ECF No. 123-1). In this Court's view, under the circumstances in this case, ineffective assistance of Nika's first state post-conviction counsel may operate as cause to excuse his procedural defaults based on the state-law statute of limitations. Respondents do not articulate any compelling reason why the equitable rule of Martinez should not apply here.

         With respect to Nika's claims of ineffective assistance of appellate counsel in Ground 12, Respondents point out that at the time of the March 16, 2017, order in this case, the Ninth Circuit Court of Appeals had, in Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013), extended the Martinez exception to claims of ineffective assistance of direct appeal counsel, but Nguyen has since been abrogated by the Supreme Court, in Davila v. Davis, 137 S.Ct. 2058 (2017). See Answer (ECF No. 160), p. 54. Respondents' argument in this regard is well-taken; Nguyen is no longer good law. Therefore, Nika's claims of ineffective assistance of appellate counsel are procedurally defaulted, without any showing of cause and prejudice by Nika. In his reply, Nika argues that, in his first state habeas action, he asserted certain claims of ineffective assistance of appellate counsel, and the Nevada Supreme Court denied those claims on their merits, so those parts of Ground 12 are not procedurally defaulted. See Reply (ECF No. 169), pp. 274-75; see also Nika, 124 Nev. at 1293, 1295-98, 198 P.3d at 853, 855-57. This argument, however, is inconsistent with the argument Nika made regarding Ground 12 in response to the respondents' motion to dismiss. There, Nika argued:

The State argues that portions of Claim Twelve are procedurally defaulted, while other portions are not, without identifying which is which. ECF No. 95 at 59-60. As with Claim One, Nika's position is that his claim of IAC of direct appeal counsel is a single claim, and that the new factual allegations raised in the instant claim fundamentally alter the claim so as to render it new and different.

         Opposition to Respondents' Motion to Dismiss (ECF No. 132), p. 94. The Court accepted Nika's position, and treated Ground 12 as different from the claim in his first state habeas action, and subject, in whole, to the procedural default doctrine in this case. The case then proceeded, and the respondents answered, based on Nika's position and the Court's ruling. Nika's attempt to change his position in this manner now is barred by the doctrine of judicial estoppel. See Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990). Ground 12 is procedurally defaulted, and Nika makes no showing to overcome the procedural default. Ground 12 will be denied as barred by the procedural default doctrine.

         Nika's remaining claims for ineffective assistance of trial counsel are addressed below.

         Claims Warranting Habeas Corpus Relief

         Ground 7B - Jury Instructions and Verdict Forms Concerning Mitigating Circumstances

         In Ground 7B, Nika claims that his federal constitutional rights were violated in the penalty phase of his trial because the jury instructions “fail[ed] to instruct the jury that aggravating circumstances needed to be found unanimously, and that mitigating circumstances did not need to be found unanimously.” See Second Amended Petition (ECF No. 73), pp. 152-53. The crux of this claim is that in the penalty phase of Nika's trial, the jury instructions and verdict form did not inform the jury that they did not have to find mitigating circumstances unanimously, that is, that each juror could individually consider any mitigating circumstance whether or not any other jurors agreed about the existence of that mitigating circumstance.

         Regarding the findings the jury was to make in the penalty phase of Nika's trial, the trial court instructed the jury as follows:

The State has alleged certain aggravating circumstances are present in this case.
The defendant has alleged certain mitigating circumstances are present in this case.
It shall be your duty to determine:
(a) whether an aggravating circumstance or circumstances has/have been proven beyond a reasonable doubt;
(b) whether a mitigating circumstance or circumstances are found to exist; and,
(c) based upon these findings, whether the defendant should be sentenced to life imprisonment or death.
The jury may impose a sentence of death only if you find at least one aggravating circumstance and further find there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found.
Otherwise the punishment imposed shall be imprisonment in the Nevada State Prison for life with or without the possibility of parole.
* * *
The State has the burden of proving beyond a reasonable doubt the aggravating circumstance or circumstances in this case.
A reasonable doubt is one based on reason. It is not mere possible doubt but is such a doubt as would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of all the evidence, are in such a condition that they can say they feel an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt, to be reasonable, must be actual, not mere possibility or speculation.
If you have a reasonable doubt as to the aggravating circumstance or circumstances in this case, or find the mitigating circumstance or circumstances are sufficient to outweigh the aggravating circumstance or circumstances found, the defendant is entitled to a verdict of life imprisonment and you are to specify whether such imprisonment shall be with or without the possibility of parole.
* * *
When you retire to consider your verdict, you must first determine whether the State has proven beyond a reasonable doubt that an aggravating circumstance or circumstances exist in this case and whether a mitigating circumstance or circumstances exist in this case. A verdict form has been provided to you for this purpose.
Based upon your findings in the verdict you must then determine whether the defendant should be sentenced to life imprisonment or death. If you determine life imprisonment is a proper verdict in this case, you must determine whether the imprisonment shall be with the possibility of parole or without the possibility of parole.
During your deliberations, you will have all the exhibits which were admitted into evidence during the trial and during this hearing, these written instructions and forms of verdict which have been prepared for your convenience.
Your verdict must be unanimous. As soon as you have agreed upon a verdict, have it signed and dated by your foreperson and return with it to this room.

         Penalty Phase Jury Instructions, Respondents' Exh. 48, Instructions No. 10, 11 and 20 (ECF No. 108-3, pp. 11, 12 and 21). The verdict form provided to the jury was as follows:

We the jury in the above-entitled action, find beyond a reasonable doubt that the murder committed by the defendant was aggravated by the following circumstance or circumstances which have been checked below.
(1) The murder of Edward V. Smith was committed by defendant Avaram Nika while he was engaged in the commission of or an attempt to commit robbery and Avaram Nika killed Edward V. Smith.
(2) The murder of Edward V. Smith was committed to avoid or prevent a lawful arrest.
(3) The murder was committed upon Edward V. Smith at random and without apparent motive.
We, the jury in the above-entitled action find the following mitigating circumstance or circumstances which are existing in this case and have checked the same below.
__ 1. The defendant has no significant history of prior criminal activity.
__ 2. The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.
__ 3. The victim was a participant in the defendant's criminal conduct or consented to the act.
__ 4. The defendant was an accomplice in a murder committed by another person and his participation in the murder was relatively minor.
__ 5. The defendant acted under duress or under the domination of another person.
__ 6. The youth of the defendant at the time of the crime.
__ 7. Any other mitigating circumstance.

         FOREMAN

         LIFE IMPRISONMENT WITHOUT THE ...


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