United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE
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
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
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
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
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
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
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
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
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
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)).
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).
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).
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.
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).
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
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).
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).
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).
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).
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
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
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
4. “Trial counsel were ineffective for waiving spousal
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
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
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
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
A. “The State committed misconduct by failing to
disclose an executory promise of benefits made to witness
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
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
D. “The malice instructions were
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
H. The cumulative effect of the erroneous jury instructions
resulted in a violation of Nika's federal constitutional
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
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.
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
12. Nika's federal constitutional rights were violated
“because Mr. Nika's direct appeal counsel were
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.”
Amended Petition (ECF No. 73), pp. 9-196 (capitalization and
punctuation altered in quotations of headings).
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).
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).
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).
Standard of Review
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).
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;
(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).
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
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
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.
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.
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).
Default and Martinez
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,
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).
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.
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
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.
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.
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.
remaining claims for ineffective assistance of trial counsel
are addressed below.
Warranting Habeas Corpus Relief
7B - Jury Instructions and Verdict Forms Concerning
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.
the findings the jury was to make in the penalty phase of
Nika's trial, the trial court instructed the jury as
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
* * *
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.
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.
(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
__ 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
__ 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.
IMPRISONMENT WITHOUT THE ...