United States District Court, D. Nevada
ORDER DENYING IN PART AND GRANTING IN PART MOTION TO
ALTER OR AMEND JUDGMENT (ECF NO. 189)
C. MAHAN, UNITED STATES DISTRICT JUDGE.
capital habeas corpus action, on June 12, 2019, the Court
granted in part and denied in part Avram Vineto Nika's
habeas petition, and judgment was entered accordingly.
See Order entered June 12, 2019 (ECF No. 186);
Judgment (ECF No. 187). The Court granted Nika relief
relative to the penalty phase of his trial, with respect to
his claims in Grounds 1G, 6 (the ineffective assistance of
trial counsel claim in Ground 6, as to the penalty phase of
his trial), and 7B of his Second Amended Petition for Writ of
Habeas Corpus (ECF No. 73); the Court denied Petitioner
relief on all other claims. See id.
9, 2019, Nika filed a motion to alter or amend the judgment
under Federal Rule of Civil Procedure 59(e) (ECF No. 189).
Respondents filed an opposition to that motion on September
5, 2019 (ECF No. 196). Nika filed a reply in support of the
motion on September 17, 2019 (ECF No. 199).
Rule 59(e), “[r]econsideration is appropriate if the
district court (1) is presented with newly discovered
evidence, (2) committed clear error or the initial decision
was manifestly unjust, or (3) if there is an intervening
change in controlling law.” School Dist. No. 1J,
Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255,
1263 (9th Cir. 1993). “There may also be other, highly
unusual, circumstances warranting reconsideration.”
motion to alter or amend judgment, Nika seeks reconsideration
with respect to two issues raised by Ground 2 of his second
amended habeas petition. See Motion to Alter or
Amend Judgment (ECF No. 189). First, Nika contends that
between 1992 and 2000, Nevada's murder statute, as
represented by the so-called Kazalyn jury
instruction, was unconstitutionally vague and overbroad.
See id. at 2-8. And, second, Nika contends that, under
the federal constitution, the Nevada Supreme Court's
ruling in Byford v. State, 116 Nev. 215, 994 P.2d
700 (2000), must be applied retroactively. See id.
at 8-12. The Court has considered these arguments and
determines that Nika has not shown cause for the Court to
reconsider the rulings on these issues in the June 12, 2019,
order and judgment.
both issues, Nika made similar arguments in his petition and
reply, and, to the extent that he did not, he has made no
showing of any reason why he could not have. A motion for
reconsideration under Rule 59(e) is not a vehicle for a party
simply to assert expanded or refined arguments after judgment
is entered. At any rate, the Court determines that Nika's
first argument - that Nevada's murder statute was
unconstitutionally vague and overbroad between 1992 and 2000
- is procedurally defaulted, and, if not procedurally
defaulted, the Nevada Supreme Court's rejection of the
argument was not unreasonable. And Nika's second argument
fails because he does not show that federal constitutional
principles require that Byford be applied
retroactively. For these reasons, the Court will deny
Nika's motion to the extent he requests alteration or
amendment of the judgment to grant him relief on Ground 2,
relative to the guilt phase of his trial.
the Court does determine that Nika has made a sufficient
showing such that under 28 U.S.C. § 2253(c), and
Slack v. McDaniel, 529 U.S. 473, 484 (2000), a
certificate of appealability is warranted as to these issues.
The Court will, therefore, grant Nika's motion to the
extent that the certificate of appealability granted by this
Court will be expanded to include Ground 2 of his second
amended habeas petition.
IS THEREFORE ORDERED that Petitioner's Motion to
Alter or Amend Judgment (ECF No. 189) is GRANTED IN
PART AND DENIED IN PART. The motion is granted to
the extent that the judgment in this action shall be amended
to grant Petitioner a certificate of appealability with
respect to Ground 2 of his Second Amended Petition for Writ
of Habeas Corpus (ECF No. 73). In all other respects, the
motion is denied.
IS FURTHER ORDERED that The Clerk of the Court is
directed to enter an Amended Judgment, as follows:
IT IS ORDERED AND ADJUDGED that the Petitioner's Second
Amended Petition for Writ of Habeas Corpus (ECF No. 73) is
GRANTED IN PART AND DENIED IN PART. Petitioner is granted
relief relative to the penalty phase of his trial, as
described below, with respect to his claims in Grounds 1G, 6
(the ineffective assistance of trial counsel claim in Ground
6, as to the penalty phase of his trial), and 7B. Petitioner
is denied relief on all other claims in his second amended
IT IS FURTHER ORDERED AND ADJUDGED that Respondents shall
either (1) within 60 days from the date of this order, vacate
Petitioner's death sentence and impose upon him a
non-capital sentence, consistent with law, or (2) within 60
days from the date of this order, file a notice of the
State's intent to grant Petitioner a new penalty-phase
trial, and, within 180 days from the date of this order,
commence jury selection in the new penalty-phase trial.
IT IS FURTHER ORDERED AND ADJUDGED that Petitioner's
Motion for Discovery (ECF No. 166) and Motion for Evidentiary
Hearing (ECF No. 168) are DENIED.
IT IS FURTHER ORDERED AND ADJUDGED that Petitioner is granted
a certificate of appealability with respect to his claims in
Grounds 1C, 2, 3, 4A and 5 of his Second Amended Petition for
Writ of Habeas Corpus (ECF No. 73). With respect to all other
claims in Nika's second amended habeas petition on which
the Court denies relief, the Court denies a certificate of
IT IS FURTHER ORDERED AND ADJUDGED that the judgment in this
action will be stayed pending the conclusion of any appellate
or certiorari review in the Ninth Circuit Court of Appeals or
the United States Supreme Court, or the expiration of the
time for ...