Nika v. McDaniel et al

Filing 186

ORDER that Petitioner's Second Amended Petition for Writ of Habeas Corpus (ECF No. 73 ) is GRANTED IN PART AND DENIED IN PART.; Respondents shall have 60 days from the date of this order to respond as outlined in order; Petitioner' s Motion for Discovery (ECF No. 166 ) and Motion for Evidentiary Hearing (ECF No. 168 ) are DENIED; Petitioner is granted a certificate of appealability with respect to his claims in Grounds 1C, 3, 4A and 5 of his Second Amended Petit ion (ECF No. 73 ); 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 seeking such appe llate or certiorari review, whichever occurs later; Clerk directed to enter judgment accordingly; pursuant to FRCP 25(d), the Clerk shall substitute William Gittere for Timothy Filson, as the respondent warden, and Aaron Ford for Adam Laxalt, as the respondent Nevada Attorney General. See Order for further details and instructions. Signed by Judge James C. Mahan on 6/12/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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AVRAM VINETO NIKA,

Case No. 3:09-cv-00178-JCM-WGC

Petitioner,
v.

ORDER

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WILLIAM GITTERE, et al.,
Respondents.

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Introduction
This action is a petition for a writ of habeas corpus by Avram Vineto Nika, a

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Nevada prisoner sentenced to death. The case is fully briefed and before the Court for

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adjudication of the merits of the claims remaining in Nika’s second amended habeas

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petition. Having considered the briefing and the exhibits submitted by the parties, the

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Court will grant Nika’s petition in part and deny it in part. The Court will conditionally

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grant Nika habeas corpus relief regarding his death sentence, requiring the State to

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resentence Nika to a non-capital sentence or grant him with a new penalty-phase trial.

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The Court will deny Nika relief in all other respects, will grant Nika a certificate of

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appealability regarding certain claims on which relief is denied, and will deny Nika’s

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motions for leave to conduct discovery and for an evidentiary hearing.

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Background Facts and Procedural History

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Nika’s conviction and death sentence result from the murder of Edward Smith, on

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August 26, 1994, on the side of a highway east of Reno. On Nika’s direct appeal, the

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Nevada Supreme Court described the crime, as revealed by the evidence at trial, as

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follows:

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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.
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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 jeantype 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.
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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
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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 motherin-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
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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).

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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 crossexamination that Nika was violent and had made death threats against her
and her family on several occasions.

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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.

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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.

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Opinion, Respondents’ Exh. 81, pp. 1-13 (ECF No. 111-5, pp. 2-14) (published as Nika

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v. State, 113 Nev. 1424, 951 P.2d 1047 (1997)).

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Nika appealed. On August 23, 1995, the Nevada Supreme Court ordered that

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“the effectiveness of trial counsel should be reviewed on direct appeal,” and referred the

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matter to the state district court for further proceedings. See Order, Respondents’ Exh.

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60 (ECF No. 109-9). On November 7 and 8, 1996, the state district court held an

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evidentiary hearing regarding the issue whether Nika received effective assistance of

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trial counsel. See Transcript of Proceedings, Respondents’ Exhs. 76, 77 (ECF Nos.

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110-1, 111-1). The state district court ruled that Nika did not receive ineffective

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assistance of trial counsel and ordered the record of those proceedings transmitted to
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the Nevada Supreme Court. See Transcript of Proceedings, Respondents’ Exh. 77, pp.

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99-117 (ECF No. 111-1, pp. 100-18). On December 30, 1997, the Nevada Supreme

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Court affirmed the judgment of conviction and sentence. See Nika v. State, 113 Nev.

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1424, 951 P.2d 1047 (1997). On that date, the Nevada Supreme Court also dismissed

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Nika’s separate appeal from the district court’s ruling that he did not receive ineffective

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assistance of trial counsel. See Order Dismissing Appeal, Respondents’ Exh. 82 (ECF

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No. 112-1).

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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.

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112-5). Counsel was appointed, and, with counsel, Nika filed a supplement to his

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petition on September 29, 2000. See Supplement to Petition for Writ of Habeas Corpus,

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Respondents’ Exh. 99 (ECF No. 113-1). The state district court dismissed all but one of

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Nika’s claims, and, following an evidentiary hearing, denied relief on the remaining

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claim. See Order filed March 15, 2001, Respondents’ Exh. 107 (ECF No. 114-8);

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Transcript of Proceedings, Respondents’ Exhs. 122, 123 (ECF Nos. 116-12, 117-1);

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Order Denying Petition for Post-Conviction, Respondents’ Exh. 125 (ECF No. 117-3);

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Findings of Fact, Conclusions of Law and Judgment, Respondents’ Exh. 129 (ECF No.

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117-7).

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Nika appealed, and on September 16, 2004, the Nevada Supreme Court

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reversed and remanded the case to the state district court for further proceedings on the

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claims that had been dismissed. See Opinion, Respondents’ Exh. 141 (ECF No. 118-9)

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(published as Nika v. State, 120 Nev. 600, 97 P.3d 1140 (2004)). The Nevada Supreme

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Court ruled that the proceeding regarding issues of alleged ineffective assistance of

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counsel in conjunction with Nika’s direct appeal had been an inadequate forum to

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adjudicate those issues. See Nika, 120 Nev. at 602, 97 P.3d at 1142. The Nevada

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Supreme Court affirmed the state district court’s denial of relief on the remaining claim.

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See id., 120 Nev. at 607-11, 97 P.3d at 1145-48.

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On remand, Nika filed a second supplemental habeas petition on June 23, 2005.

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See Second Supplemental Petition for Writ of Habeas Corpus, Respondents’ Exh. 146

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(ECF No. 119-1). On January 6, 2006, the state district court filed an order denying Nika

4

relief on the remanded claims. See Order Granting Motion to Dismiss, Respondents’

5

Exh. 150 (ECF No. 120-3). Nika again appealed, and the Nevada Supreme Court

6

affirmed on December 31, 2008. See Opinion, Respondents’ Exh. 165 (ECF No. 122-1)

7

(published as Nika v. State, 124 Nev. 1272, 198 P.3d 839 (2008)). Nika then petitioned

8

the United States Supreme Court for certiorari, and his certiorari petition was denied on

9

October 13, 2009. See Notice of Denial of Petition for Writ of Certiorari, Respondents’

10
11

Exh. 172 (ECF No. 122-8).
Nika initiated this federal habeas corpus action on April 7, 2009, and counsel was

12

appointed (ECF Nos. 1, 11). With counsel, Nika filed an amended habeas petition on

13

March 1, 2010 (ECF No. 18).

14

On April 30, 2010, Respondents filed a motion to dismiss (ECF No. 41). Nika

15

then filed a motion for stay (ECF No. 42). On August 27, 2010, the Court granted Nika’s

16

motion for stay, stayed this case pending Nika’s further exhaustion of claims in state

17

court, and denied the motion to dismiss as moot (ECF No. 47).

18

On April 20, 2010, Nika filed a second state-court petition for a writ of habeas

19

corpus. See Petition for Writ of Habeas Corpus (Post-Conviction), Respondents’

20

Exh. 174 (ECF No. 123-1). On November 2, 2011, the state district court dismissed the

21

petition. See Order, Respondents’ Exh. 190 (ECF No. 124-10). Nika appealed, and on

22

July 30, 2014, the Nevada Supreme Court affirmed. See Order of Affirmance,

23

Respondents’ Exh. 196 (ECF No. 125-4). The Nevada Supreme Court denied Nika’s

24

petition for rehearing on October 23, 2014. See Order Denying Rehearing,

25

Respondents’ Exh. 200 (ECF No. 125-8). Nika petitioned the United States Supreme

26

Court for certiorari, and that petition was denied on April 27, 2015. See Notice of Denial

27

of Petition for Writ of Certiorari, Respondents’ Exh. 204 (ECF No. 125-12).

28
10

1
2
3
4
5

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

6

corpus (ECF No. 73), which is now Nika’s operative petition. Nika’s second amended

7

petition asserts the following grounds for relief:

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

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.”

28
11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

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.”

28
12

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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.”
13

1

Second Amended Petition (ECF No. 73), pp. 9-196 (capitalization and punctuation

2

altered in quotations of headings).

3

On May 12, 2016, Respondents filed a motion to dismiss Nika’s second

4

amended petition (ECF No. 95). The Court granted that motion in part, and denied it in

5

part, on March 16, 2017; the Court dismissed Grounds 7A, 7C, 7E, 7F, 7G, 10 and 11 of

6

Nika’s second amended petition. See Order entered March 16, 2017 (ECF No. 151).

7

The respondents filed an answer, responding to Nika’s remaining claims, on

8

October 20, 2017 (ECF No. 160). Nika filed a reply to the answer on March 26, 2018

9

(ECF No. 169). Respondents filed a response to Nika’s reply on September 14, 2018

10

(ECF No. 181).

11

Along with his reply, on March 26, 2018, Nika also filed a motion for discovery

12

(ECF No. 166) and a motion for an evidentiary hearing (ECF No. 168). Respondents

13

filed an opposition to both of those motions on April 9, 2018 (ECF No. 172). Nika replied

14

on October 4, 2018 (ECF No. 183).

15

Discussion

16

Standard of Review

17

Because this action was initiated after April 24, 1996, the amendments to

18

28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act

19

(AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Van Tran v. Lindsey,

20

212 F.3d 1143, 1148 (9th Cir. 2000), overruled on other grounds by Lockyer v. Andrade,

21

538 U.S. 63 (2003).

22

28 U.S.C. § 2254(d) sets forth the primary standard of review under the AEDPA:

23

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—

24
25
26
27

(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

28
14

1
2

(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.

3

28 U.S.C. § 2254(d). A state court decision is contrary to clearly established Supreme

4

Court precedent, within the meaning of 28 U.S.C. § 2254(d)(1), “if the state court

5

applies a rule that contradicts the governing law set forth in [the Supreme Court’s]

6

cases” or “if the state court confronts a set of facts that are materially indistinguishable

7

from a decision of [the Supreme Court] and nevertheless arrives at a result different

8

from [the Supreme Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v.

9

Taylor, 529 U.S. 362, 405-06 (2000)). A state court decision is an unreasonable

10

application of clearly established Supreme Court precedent, within the meaning of

11

28 U.S.C. § 2254(d)(1), “if the state court identifies the correct governing legal principle

12

from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts

13

of the prisoner’s case.” Lockyer, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The

14

“unreasonable application” clause requires the state court decision to be more than

15

incorrect or erroneous; the state court’s application of clearly established law must be

16

objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409). The analysis under

17

section 2254(d) looks to the law that was clearly established by United States Supreme

18

Court precedent at the time of the state court’s decision. Wiggins v. Smith, 539 U.S.

19

510, 520 (2003).

20

The Supreme Court has instructed that “[a] state court’s determination that a

21

claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

22

disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562

23

U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

24

Supreme Court has also instructed that “even a strong case for relief does not mean the

25

state court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S.

26

at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (AEDPA standard is “a

27

difficult to meet and highly deferential standard for evaluating state-court rulings, which

28
15

1

demands that state-court decisions be given the benefit of the doubt” (internal quotation

2

marks and citations omitted)).

3

The state courts’ “last reasoned decision” is the ruling subject to section 2254(d)

4

review. Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010). If the last reasoned

5

state-court decision adopts or substantially incorporates the reasoning from a previous

6

state-court decision, a federal habeas court may consider both decisions to ascertain

7

the state courts’ reasoning. See Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.

8

2007) (en banc).

9

If the state court denies a claim but provides no explanation for its ruling, the

10

federal court still affords the ruling the deference mandated by section 2254(d); in such

11

a case, the petitioner is entitled to habeas relief only if “there was no reasonable basis

12

for the state court to deny relief.” Harrington, 562 U.S. at 98.

13

In considering the petitioner’s claims under section 2254(d), the federal court

14

generally takes into account only the evidence presented in state court. Pinholster, 563

15

U.S. at 185-87. However, if the petitioner meets the standard imposed by section

16

2254(d), the federal court may then allow factual development, possibly including an

17

evidentiary hearing, and the federal court’s review is then de novo. See Panetti v.

18

Quarterman, 551 U.S. 930, 948 (2007); Wiggins, 539 U.S. at 528-29; Runningeagle v.

19

Ryan, 686 F.3d 758, 786-88 (9th Cir. 2012).

20

The federal court’s review is de novo for claims not adjudicated on their merits by

21

the state courts. See Cone v. Bell, 556 U.S. 449, 472 (2009); Porter v. McCollum, 558

22

U.S. 30, 39 (2009).

23

Procedural Default and Martinez

24

In Coleman v. Thompson, the Supreme Court held that a state prisoner who fails

25

to comply with the state’s procedural requirements in presenting his claims is barred by

26

the adequate and independent state ground doctrine from obtaining a writ of habeas

27

corpus in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991) (“Just as in

28

those cases in which a state prisoner fails to exhaust state remedies, a habeas
16

1

petitioner who has failed to meet the State’s procedural requirements for presenting his

2

federal claims has deprived the state courts of an opportunity to address those claims in

3

the first instance.”). Where such a procedural default constitutes an adequate and

4

independent state ground for denial of habeas corpus, the default may be excused only

5

if “a constitutional violation has probably resulted in the conviction of one who is actually

6

innocent,” or if the prisoner demonstrates cause for the default and prejudice resulting

7

from it. Murray v. Carrier, 477 U.S. 478, 496 (1986).

8

To demonstrate cause for a procedural default, the petitioner must “show that

9

some objective factor external to the defense impeded” his efforts to comply with the

10

state procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external

11

impediment must have prevented the petitioner from raising the claim. See McCleskey

12

v. Zant, 499 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner

13

bears “the burden of showing not merely that the errors [complained of] constituted a

14

possibility of prejudice, but that they worked to his actual and substantial disadvantage,

15

infecting his entire [proceeding] with errors of constitutional dimension.” White v. Lewis,

16

874 F.2d 599, 603 (9th Cir. 1989), citing United States v. Frady, 456 U.S. 152, 170

17

(1982).

18

In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled that ineffective

19

assistance of post-conviction counsel may serve as cause to overcome the procedural

20

default of a claim of ineffective assistance of trial counsel. The Coleman Court had held

21

that the absence or ineffective assistance of state post-conviction counsel generally

22

could not establish cause to excuse a procedural default because there is no

23

constitutional right to counsel in state post-conviction proceedings. See Coleman, 501

24

U.S. at 752-54. In Martinez, however, the Supreme Court established an equitable

25

exception, holding that the absence or ineffective assistance of counsel at an initial-

26

review collateral proceeding may establish cause to excuse a petitioner's procedural

27

default of substantial claims of ineffective assistance of trial counsel. See Martinez, 566

28

U.S. at 9. The Court described “initial-review collateral proceedings” as “collateral
17

1

proceedings which provide the first occasion to raise a claim of ineffective assistance at

2

trial.” Id. at 8.

3

In the March 16, 2017, order, the Court recognized that Nika raised certain of his

4

claims—Grounds 1A, 1C, 1D, 1E, 1F3, 1F4, 1F5, 1H, 4B, 6, 9A, 9B and 12—for the first

5

time in his second state habeas action, and the Nevada Supreme Court ruled that those

6

claims were procedurally barred and that Nika did not make any showing to overcome

7

the procedural bar. See Order entered March 16, 2017 (ECF No. 151),

8

pp. 7-8. The Court ruled further that, under Martinez, Nika might be able to overcome

9

the procedural default of those claims but declined to rule on the question of the

10

procedural defaults until the merits of the claims were briefed. See id.at 8.

11

Respondents argue that Martinez does not provide a means for Nika to

12

overcome any procedural default that results from the state courts’ application of the

13

state-law statute of limitations. See Answer (ECF No. 160), pp. 9-10. This argument is

14

without merit. Nika was represented by his first state post-conviction counsel from 1998

15

until 2009; he filed his second state-court petition for a writ of habeas corpus on

16

April 20, 2010. See Petition for Writ of Habeas Corpus (Post-Conviction), Respondents’

17

Exh. 174 (ECF No. 123-1). In this Court’s view, under the circumstances in this case,

18

ineffective assistance of Nika’s first state post-conviction counsel may operate as cause

19

to excuse his procedural defaults based on the state-law statute of limitations.

20

Respondents do not articulate any compelling reason why the equitable rule of Martinez

21

should not apply here.

22

With respect to Nika’s claims of ineffective assistance of appellate counsel in

23

Ground 12, Respondents point out that at the time of the March 16, 2017, order in this

24

case, the Ninth Circuit Court of Appeals had, in Nguyen v. Curry, 736 F.3d 1287

25

(9th Cir. 2013), extended the Martinez exception to claims of ineffective assistance of

26

direct appeal counsel, but Nguyen has since been abrogated by the Supreme Court, in

27

Davila v. Davis, 137 S. Ct. 2058 (2017). See Answer (ECF No. 160), p. 54.

28

Respondents’ argument in this regard is well-taken; Nguyen is no longer good law.
18

1

Therefore, Nika’s claims of ineffective assistance of appellate counsel are procedurally

2

defaulted, without any showing of cause and prejudice by Nika. In his reply, Nika argues

3

that, in his first state habeas action, he asserted certain claims of ineffective assistance

4

of appellate counsel, and the Nevada Supreme Court denied those claims on their

5

merits, so those parts of Ground 12 are not procedurally defaulted. See Reply (ECF No.

6

169), pp. 274-75; see also Nika, 124 Nev. at 1293, 1295-98, 198 P.3d at 853, 855-57.

7

This argument, however, is inconsistent with the argument Nika made regarding

8

Ground 12 in response to the respondents’ motion to dismiss. There, Nika argued:

9

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.

10
11
12
13

Opposition to Respondents’ Motion to Dismiss (ECF No. 132), p. 94. The Court

14

accepted Nika’s position, and treated Ground 12 as different from the claim in his first

15

state habeas action, and subject, in whole, to the procedural default doctrine in this

16

case. The case then proceeded, and the respondents answered, based on Nika’s

17

position and the Court’s ruling. Nika’s attempt to change his position in this manner now

18

is barred by the doctrine of judicial estoppel. See Russell v. Rolfs, 893 F.2d 1033, 1037

19

(9th Cir. 1990). Ground 12 is procedurally defaulted, and Nika makes no showing to

20

overcome the procedural default. Ground 12 will be denied as barred by the procedural

21

default doctrine.
Nika’s remaining claims for ineffective assistance of trial counsel are addressed

22
23
24
25
26
27
28

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
19

1

that aggravating circumstances needed to be found unanimously, and that mitigating

2

circumstances did not need to be found unanimously.” See Second Amended Petition

3

(ECF No. 73), pp. 152-53. The crux of this claim is that in the penalty phase of Nika’s

4

trial, the jury instructions and verdict form did not inform the jury that they did not have

5

to find mitigating circumstances unanimously, that is, that each juror could individually

6

consider any mitigating circumstance whether or not any other jurors agreed about the

7

existence of that mitigating circumstance.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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.
20

1
2
3
4

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.
*

5
6
7
8
9
10
11
12
13
14
15

*

*

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.

16

Penalty Phase Jury Instructions, Respondents’ Exh. 48, Instructions No. 10, 11 and 20

17

(ECF No. 108-3, pp. 11, 12 and 21). The verdict form provided to the jury was as

18

follows:

19
20
21
22
23
24
25

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.

26
27
28

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.
21

1
2
3
4
5
6

___ 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.

7

___ 5. The defendant acted under duress or under the domination
of another person.

8

___ 6. The youth of the defendant at the time of the crime.

9

___ 7. Any other mitigating circumstance.

10
_______________________
FOREMAN

11
12
13
14
15
16
17

LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE
We, the jury in the above-entitled action, having found the
defendant, Avram Nika, guilty of Murder in the First Degree With The Use
Of a Deadly weapon, set the penalty to be imposed at life in the Nevada
State Prison without the possibility of parole, plus a consecutive term of
life in the Nevada State Prison without the possibility of parole for the use
of a deadly weapon.
DATED this ___ day of ______________________, 1995.

18
19

_______________________
FOREMAN

20
21
22
23

LIFE IMPRISONMENT WITH THE POSSIBILITY OF PAROLE

24

We, the jury in the above-entitled action, having previously found
the defendant, Avram Nika, guilty of Murder in the First Degree With The
Use Of a Deadly Weapon, set the penalty to be imposed at life in the
Nevada State Prison with the possibility of parole, plus a consecutive term
of life in the Nevada State Prison with the possibility of parole for the use
of a deadly weapon.

25
26
27
28

DATED this ___ day of ______________________, 1995.
22

1
_______________________
FOREMAN

2
3
4
5
6
7
8
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10

DEATH PENALTY
We, the jury in the above-entitled action, having previously found
the defendant, Avram Nika, guilty of Murder in the First Degree With The
Use Of a Deadly Weapon, and having found beyond a reasonable doubt
that an aggravating circumstance or circumstances exists in this case and
that any mitigating circumstance or circumstances are not sufficient to
outweigh the aggravating circumstance or circumstances found, therefore,
by reason thereof, set the penalty of sentence to be imposed upon the
defendant, of Murder in the First Degree With The Use Of a Deadly
Weapon at death.
DATED this ___ day of ______________________, 1995.

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12
13

_______________________
FOREMAN
Verdict, Respondents’ Exh. 50 (ECF No. 108-5).

14
In Mills v. Maryland, 486 U.S. 367 (1988), the Supreme Court held there to be a
15
16

federal constitutional violation where “there is a substantial probability that reasonable
jurors, upon receiving the judge’s instructions in this case, and in attempting to complete

17
the verdict form as instructed, well may have thought they were precluded from
18
considering any mitigating evidence unless all 12 jurors agreed on the existence of a
19

particular such circumstance.” Mills, 486 U.S. at 384; see also McKoy v. North Carolina,

20
494 U.S. 433, 442-43 (1990) (“Mills requires that each juror be permitted to consider
21
and give effect to ... all mitigating evidence in deciding ... whether aggravating
22
circumstances outweigh mitigating circumstances....”). The Mills Court based its ruling,
23

in part, on the observation that “[n]o instruction was given indicating what the jury

24
should do if some but not all of the jurors were willing to recognize something about
25

petitioner, his background, or the circumstances of the crime, as a mitigating factor.”

26
Mills, 486 U.S. at 379. The Mills Court relied on a line of Supreme Court precedent
27

holding that “the sentencer [may] not be precluded from considering, as a mitigating

28
23

1

factor, any aspect of a defendant’s character or record and any of the circumstances of

2

the offense that the defendant proffers as a basis for a sentence less than death.” Id. at

3

374-75 (quoting Eddings v. Oklahoma, 455 U.S. 104, 110 (1982), and Lockett v. Ohio,

4

438 U.S. 586, 604 (1978) (plurality opinion)) (emphasis in original). The Court

5

acknowledged that it could not be certain that the jury in the Mills case interpreted the

6

instructions to preclude consideration of mitigating factors unless they were found

7

unanimously, but ruled that “[t]he possibility that a single juror could block” consideration

8

of mitigating evidence “is one we dare not risk.” Mills, 486 U.S. at 384. The Court stated:

9

“Unless we can rule out the substantial possibility that the jury may have rested its

10
11

verdict on the ‘improper’ ground, we must remand for resentencing.” Id. at 377.
Nika asserted this claim in his first state habeas action. See Second

12

Supplemental Petition for Writ of Habeas Corpus, Respondents’ Exh. 146, pp. 137-44

13

(ECF No. 119-1, pp. 138-45). The state district court’s ruling on the claim—apparently

14

focusing on a related claim of ineffective assistance of trial counsel—was, in its entirety,

15

as follows:

16
17
18

Claim #16 deals with the subject of failure to request a specific
instruction on the unanimity of a verdict on aggravating and mitigating
circumstances. Nika has failed to specify how this claim would entitle him
to any relief. It is therefore rejected.

19

Order Granting Motion to Dismiss, Respondents’ Exh. 150, p. 3 (ECF No. 120-3,

20

p. 4). Nika appealed and raised this issue in the Nevada Supreme Court. See

21

Appellant’s Opening Brief, Respondents’ Exh. 152, pp. 4, 15-19 (ECF No. 120-5,

22

pp. 23, 34-38). The Nevada Supreme Court denied relief on Nika’s claim—

23

focusing its discussion on a related claim of ineffective assistance of appellate

24

counsel—as follows:

25
26
27
28

Nika contends that the district court erred by dismissing his claim
that appellate counsel was ineffective for failing to challenge the district
court’s refusal to give the jury his proffered instruction regarding mitigating
circumstances. In particular, he argues that the jury instructions given
failed to advise the jury that while it must agree unanimously on the
existence of aggravating circumstances, it did not have to agree
unanimously on the existence of mitigating circumstances. Nika is
24

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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

correct—the specific instructions informing the jury about its findings and
weighing of aggravating and mitigating circumstances did not expressly
state that aggravating circumstances had to be found unanimously and
that mitigating circumstances did not. Nika asserts that appellate counsel
should have challenged the omission of this instruction pursuant to Mills v.
Maryland [footnote: 486 U.S. 367 (1988)] and argued that the failure to
instruct constituted plain error. We disagree.
Nika’s reliance on Mills is misplaced. In that case, the United States
Supreme Court concluded that a substantial probability existed that in an
attempt to complete the verdict form as instructed, the jury believed that it
could not consider any mitigating evidence unless it unanimously found
the existence of a particular mitigating circumstance. [Footnote: Id. at 37780.] Such is not the case here. Nika’s jury was instructed that it had to find
the existence of any aggravator beyond a reasonable doubt and its verdict
must be unanimous. Further, the verdict form began with language—“[w]e,
the jury”—that, as this court concluded in Geary v. State, a reasonable
jury would understand “required a unanimous finding of the aggravating
circumstances.” [Footnote: 114 Nev. 100, 105, 952 P.2d 431, 433 (1998).]
And no instruction placed constraints on the jury’s ability to find mitigating
circumstances. As this court has held in similar circumstances, the failure
to adequately instruct the jury on unanimity may be harmless where the
jury is informed that aggravating circumstances must be unanimously
found beyond a reasonable doubt and no constraints are placed on the
jury’s ability to find mitigating circumstances. [Footnote: Jimenez v. State,
112 Nev. 610, 624-25, 918 P.2d 687, 695-96 (1996); see Geary, 114 Nev.
at 104-05, 952 P.2d at 433.] On this basis, Nika failed to demonstrate that
this instructional error would have had a reasonable probability of success
on appeal. Therefore, the district court did not err by summarily dismissing
this claim.
[Footnote: To the extent Nika argues that trial counsel were
ineffective for not requesting his proposed instruction, we conclude that he
failed to adequately substantiate his claim that trial counsel’s performance
was deficient or resulted in prejudice. Strickland, 466 U.S. at 687; Kirksey,
112 Nev. at 987, 923 P.2d at 1107. Therefore, the district court did not err
by summarily dismissing this claim.]

20

Nika, 124 Nev. at 1297-98,198 P.3d at 856-57. Two justices dissented from this ruling,

21

as follows:

22
23
24
25
26

... I believe that appellate counsel was ineffective for failing to
challenge the district court’s refusal to give a proffered instruction advising
the jury that it did not have to agree unanimously on the existence of
mitigating circumstances. Without that instruction, the jury was left to
presume that it could not consider any mitigating evidence unless it
unanimously found the existence of a particular mitigating circumstance.
Such a presumption is clearly contrary to law [footnote: Jimenez v. State,
112 Nev. 610, 624-25, 918 P.2d 687, 695-96 (1996)] and prejudicial.
Id., 124 Nev. at 1302, 198 P.2d at 860 (Cherry, J., with whom Saitta, J., agreed,

27
concurring in part and dissenting in part).
28
25

1

The Nevada Supreme Court focused its discussion on a claim of ineffective

2

assistance of appellate counsel, and briefly discussed Nika’s claim of ineffective

3

assistance of trial counsel in a footnote; the court denied Nika’s claim of trial court error

4

without any discussion of that claim specifically. When a state supreme court denies a

5

claim without explanation, the federal court still affords the ruling the deference

6

mandated by section 2254(d); in such a case, the petitioner is entitled to habeas relief

7

only if “there was no reasonable basis for the state court to deny relief.” Harrington, 562

8

U.S. at 98.

9

The Nevada Supreme Court’s ruling was unreasonable, with respect to both the

10

determination of the facts in light of the evidence and the application of Mills. It was an

11

unreasonable determination of the facts to conclude that “no instruction placed

12

constraints on the jury’s ability to find mitigating circumstances.” See Nika, 124 Nev. at

13

1297, 198 P.3d at 856. And, it was an unreasonable application of Mills for the Nevada

14

Supreme Court to conclude that this case is different from Mills because no “substantial

15

probability existed that in an attempt to complete the verdict form as instructed, the jury

16

believed that it could not consider any mitigating evidence unless it unanimously found

17

the existence of a particular mitigating circumstance.” See id. Given the language of the

18

relevant jury instructions and the verdict forms, and the clear directive of Mills, this Court

19

sees no reasonable basis for the state court to deny Nika relief on this claim.

20

In this case, on the same page of the jury instructions stating that the jury was to

21

determine “whether a mitigating circumstance or circumstances exist,” the jury was

22

instructed: “Your verdict must be unanimous.” Penalty Phase Jury Instructions,

23

Respondents’ Exh. 48, Instruction No. 20 (ECF No. 108-3, p. 21). This jury instruction,

24

Instruction Number 20, left no room for the jurors to surmise that they could individually

25

consider mitigating circumstances not found unanimously. Neither Instruction Number

26

20 nor any other instruction clarified this for the jury. See Geary v. State, 114 Nev. 100,

27

105, 952 P.2d 431, 433 (1998) (in a case decided after Nika’s conviction was final,

28

setting forth jury instructions to be used in Nevada in capital cases to avoid Mills error).
26

1

Furthermore, Instruction Number 20 referred the jurors to the verdict form:

2

“A verdict form has been provided to you for this purpose.” Penalty Phase Jury

3

Instructions, Respondents’ Exh. 48, Instruction No. 20 (ECF No. 108-3, p. 21). Then, on

4

the verdict form, there was a section where the foreman of the jury was to place a

5

checkmark next to the listed mitigating circumstances found by the jury. There, the

6

verdict form stated: “We, the jury in the above-entitled action find the following mitigating

7

circumstance or circumstances which are existing in this case and have checked the

8

same below.” Verdict, Respondents’ Exh. 50, p. 2 (ECF No. 108-5, p. 3). It is an

9

inescapable conclusion that the jurors must have understood that as an instruction to

10

identify mitigating circumstances that the jury unanimously agreed upon, and that they

11

were to weigh against the aggravating circumstance. It is unimaginable that the jurors

12

could have understood the verdict form to call for a listing of mitigating circumstances

13

found by any jurors, individually, and weighed against the aggravating circumstance by

14

the jurors who found them; there is nothing in the jury instructions or verdict form to

15

suggest such an unusual approach to completing that part of the verdict form.
In the Geary case, which was cited by the Nevada Supreme Court in its ruling in

16
17

this case, the Nevada Supreme Court held that the jury was properly instructed that

18

aggravating circumstances must be found unanimously; the Nevada Supreme Court

19

concluded, in that case, “that after having been instructed that its verdict must be

20

unanimous, a reasonable jury would properly understand that the phrase ‘[w]e, the jury’

21

required a unanimous finding of the aggravating circumstances.” Geary, 114 Nev. at

22

104-05, 952 P.2d at 433. That reasoning applies just as well to the section of the verdict

23

form in this case calling for the jury to identify the mitigating circumstances that they

24

found.

25

Respondents cite Smith v. Spisak, 558 U.S. 139 (2010), a case in which the

26

Supreme Court held that the jury instructions and verdict forms did not unconstitutionally

27

require the jury to consider only mitigating circumstances found unanimously. See

28

Answer (ECF No. 160), pp. 109-10. Respondents argue that in this case, as in Spisak,
27

1

there is no reasonable probability that the jury was led to believe that it could consider

2

only mitigating circumstances found unanimously. See id. In Spisak, though, the jury

3

instructions, and especially the verdict forms, were materially different from those in this

4

case. In Spisak, there was no indication in the jury instructions that mitigating

5

circumstances had to be found unanimously. See Spisak, 558 U.S. at 145-48. And,

6

perhaps most importantly, the verdict forms provided to the jury in Spisak did not call for

7

the jury—“we the jury”—to identify the mitigating circumstances that they found. See id.

8
9

This Court concludes that the jury instructions and verdict forms used in this case
violated Nika’s rights under the Eighth and Fourteenth Amendments of the United

10

States Constitution, by raising a substantial probability that reasonable jurors thought

11

they were precluded from considering mitigating evidence unless all jurors agreed on

12

the existence of a particular mitigating circumstance. There is no reasonable basis for

13

the Nevada Supreme Court’s denial of relief on this claim.

14
15

Ground 1G - Trial Counsel’s Mitigation Presentation
In Ground 1G, Nika claims that his federal constitutional rights were violated as a

16

result of ineffective assistance of his trial counsel because “[t]rial counsel were

17

ineffective for failing to investigate and present powerful mitigating evidence at the

18

penalty phase of the trial.” See Second Amended Petition (ECF No. 73), pp. 89-95.

19

Nika was originally required by the Nevada Supreme Court to litigate his claims

20

of ineffective assistance of counsel while his direct appeal was pending. While Nika’s

21

direct appeal was pending, on August 23, 1995, the Nevada Supreme Court, invoking

22

Nevada’s former Supreme Court Rule 250(IV)(H), remanded Nika’s case to the state

23

district court “to determine the effectiveness of trial counsel.” See Order, Respondents’

24

Exh. 60 (ECF No. 109-9). The state district court held an evidentiary hearing, see

25

Transcript of Proceedings, Respondents’ Exhs. 76, 77 (ECF Nos. 110-1, 111-1), then

26

ruled that Nika received effective assistance of trial counsel and ordered the record of

27

those proceedings transmitted to the Nevada Supreme Court. See Transcript of

28

Proceedings, Respondents’ Exh. 77, pp. 99-117 (ECF No. 111-1, pp. 100-18). On
28

1

December 30, 1997, the Nevada Supreme Court dismissed Nika’s appeal from the

2

district court’s ruling that Nika received effective assistance of trial counsel. See Order

3

Dismissing Appeal, Respondents’ Exh. 82 (ECF No. 112-1).

4

Subsequently, on Nika’s first appeal in his first state habeas action, the Nevada

5

Supreme Court ruled that the proceeding regarding issues of alleged ineffective

6

assistance of counsel in conjunction with Nika’s direct appeal “did not provide him with a

7

full and fair opportunity to raise claims of ineffective trial counsel.” Nika, 120 Nev. at

8

606, 97 P.3d at 1145. The Nevada Supreme Court stated:

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13
14
15
16
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18
19
20
21

As this case illustrates, determining the effectiveness of trial
counsel during a direct appeal was impracticable in several ways.
Normally, post-conviction counsel has the opportunity to peruse this
court’s decision on direct appeal as a guide and aid in determining what
issues should be investigated and raised in a post-conviction habeas
petition. Nika’s SCR 250 counsel did not have this resource. That counsel
also did not have the length of time to investigate possible avenues of
relief that post-conviction counsel usually has. Moreover, with
simultaneous litigation of both the direct appeal and the SCR 250
proceeding, Nika and his trial counsel were placed in an untenable
position. In regard to the direct appeal, trial counsel should have been
unconstrained advocates of Nika's position, willing and able to provide
advice and support to Nika’s direct appeal counsel. However, in the SCR
250 proceeding they found themselves defending their own conduct of the
trial against challenges by Nika. In fact, Nika was required to waive his
privilege of attorney-client confidentiality in that proceeding even though
his direct appeal was not yet decided. We therefore conclude that the
SCR 250 proceeding in this case was not, under NRS 34.810(1)(b), a
proceeding in which Nika could have fully and adequately raised grounds
of ineffective trial counsel. For the same reasons, we also decline to rely
on our 1997 order dismissing Nika’s appeal following the SCR 250
proceeding as the law of the case. [Footnote: See Pellegrini v. State, 117
Nev. 860, 885, 34 P.3d 519, 535-36 (2001) (recognizing this court’s
discretion to reconsider its law of a case when warranted).]

22

Id., 120 Nev. at 606-07, 97 P.3d at 1145. The Nevada Supreme Court remanded the

23

case to the state district court for further proceedings with respect to Nika’s claims of

24

ineffective assistance of counsel. See id., 120 Nev. at 607-11, 97 P.3d at 1145-48.

25

Regarding the remanded claims, the Nevada Supreme Court stated:

26
27
28

We reverse the district court's summary dismissal of Nika’s habeas
claims and remand for that court to determine whether Nika’s claims,
including claims that trial counsel were ineffective, warrant an evidentiary
hearing. Whether or not a claim is decided after an evidentiary hearing,
29

1

the district court must provide specific findings of fact and conclusions of
law supporting its disposition of the claims.

2
Id., 120 Nev. at 607, 97 P.3d at 1145.
3
On the remand, however, the state district court allowed no factual development
4

regarding Nika’s claim that his trial counsel was ineffective with respect to their

5
development and presentation of mitigating evidence in the penalty phase of the trial.
6
The state district court simply did not rule on motions filed by Nika seeking funding for
7
investigation and psychiatric and psychological expert assistance. See Motion,
8
9

Petitioner’s Exh. 129 (ECF No. 37-4); see also Motion for Discovery, Respondents’
Exh. 105 (ECF No. 114-6); Declaration of Glynn B. Cartledge, Petitioner’s Exh. 160

10
(ECF No. 73-2, pp. 139-41). Furthermore, the state district court did not hold an
11
12
13
14

evidentiary hearing, and, in a four-page order, summarily denied all Nika’s claims of
ineffective assistance of counsel. In the district court’s order, there was no discussion of
Nika’s claim that his trial counsel were ineffective with respect to his mitigation case.
See Order Granting Motion to Dismiss, Respondents’ Exh. 150 (ECF No. 120-3). Nika

15
again appealed, and the Nevada Supreme Court affirmed, stating:
16
17
18
19
20
21

Nika contends that the district court erred by dismissing his claim
that trial counsel were ineffective for failing to conduct an adequate
investigation of his case, including failing to consider numerous
evidentiary matters and his mental health and childhood history, use
services from the Yugoslavian consulate, and allow Nika to speak to the
jury to demonstrate his difficulty in speaking English. However, Nika failed
to adequately explain how the additional investigation he now proposes
would have altered the outcome of his trial. Consequently, the district
court did not err by summarily dismissing this claim.
Id., 124 Nev. at 1291; 198 P.3d at 852.

22
In his second state habeas action, Nika asserted this claim again, and it was
23
ruled procedurally barred. On the appeal in that case, the Nevada Supreme Court ruled,
24

as follows, on Nika’s attempt to establish cause and prejudice to overcome the

25
procedural bar by showing that his post-conviction counsel was ineffective:
26
27
28

Nika argues that the district court erred in denying his claim that
post-conviction counsel failed to conduct sufficient investigation into his
background to support the claim in his prior petition that trial counsel
provided ineffective assistance. He contends that counsel failed to speak
30

1
2
3
4
5
6
7
8
9
10
11
12

with relatives and neighbors, collect school and military records, or have
him evaluated by a mental health expert.
We conclude that this claim lacks merit. Nika did not demonstrate
that the additional evidence would have altered the outcome of trial and
thus formed the basis of a successful trial-counsel claim. At the penalty
hearing, the jury found that the murder was committed at random and
without apparent motive. This is a compelling aggravating circumstance.
Smith stopped to assist Nika on the side of the highway. Thereafter, Nika
struck him several times on the back of the head—at least once while
Smith was lying face down on the ground. Nika then rolled Smith onto his
back, placed the gun against Smith’s head, and shot him. We concluded
that the murder occurred in a calculated manner. Nika III, 124 Nev. at
1295, 198 P.3d at 854. In addition, the jury was aware that Nika was
prone to violent outbursts and threats of violence within his own family,
and he had sexually assaulted a woman in 1989. Trial counsel had
presented testimony from Nika’s wife and his sister-in-law that he was
loyal to his friends, a child at heart, and liked by the children in the family.
The jury found this evidence insufficiently mitigating. The additional
mitigation evidence concerning his upbringing, family history, and
cognitive impairments is not powerful enough to demonstrate a
reasonable probability of a different outcome had trial counsel presented
it. For this reason, we conclude that Nika failed to meet the prejudice
prong of his post-conviction-counsel claim.

13
Order of Affirmance, Respondents’ Exh. 196, pp. 5-6 (ECF No. 125-4, pp. 6-7).
14
While this claim was—at least ostensibly—adjudicated by the state courts in
15

Nika’s first state habeas action, because the fact-finding process in that case

16
was defective, and Nika did not have a fair opportunity to develop the facts supporting
17
the claim, the Court does not apply the standard prescribed by 28 U.S.C. § 2254(d), but
18
rather considers the claim de novo. See Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
19
20

2004) (§ 2254(d) does not apply where the fact-finding “process employed by the state
court is defective.”) “If, for example, a state court makes evidentiary findings without

21
holding a hearing and giving petitioner an opportunity to present evidence, such findings
22

clearly result in an ‘unreasonable determination’ of the facts.” Id. at 1001; see also

23
Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003); Killian v. Poole, 282 F.3d 1204,
24
1208 (9th Cir. 2002).
25
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
26
propounded a two prong test for analysis of claims of ineffective assistance of counsel:
27

the petitioner must demonstrate (1) that the attorney’s representation “fell below an

28
31

1

objective standard of reasonableness,” and (2) that the attorney’s deficient performance

2

prejudiced the defendant such that “there is a reasonable probability that, but for

3

counsel’s unprofessional errors, the result of the proceeding would have been different.”

4

Strickland, 466 U.S. at 688, 694. A court considering a claim of ineffective assistance of

5

counsel must apply a “strong presumption” that counsel’s representation was within the

6

“wide range” of reasonable professional assistance. Id. at 689. The petitioner’s burden

7

is to show “that counsel made errors so serious that counsel was not functioning as the

8

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. And, to

9

establish prejudice under Strickland, it is not enough for the habeas petitioner “to show

10

that the errors had some conceivable effect on the outcome of the proceeding.” Id. at

11

693. Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a

12

trial whose result is reliable.” Id. at 687.

13

In the penalty phase of his trial, Nika’s counsel presented little evidence of any

14

kind in mitigation; counsel presented no evidence concerning Nika’s background before

15

he came to the United States from Serbia some five years before his arrest and no

16

evidence concerning Nika’s intellectual capacity.

17

In the penalty phase of the trial, the prosecution called as a witness the wife of

18

the murder victim, Edward Smith, and she testified about Smith’s good character, their

19

family, his military service, and the loss that she and her daughter suffered. See

20

Testimony of Tracy Smith, Transcript of Proceedings, July 10, 1995, Respondents’ Exh.

21

46, pp. 13-18 (ECF No. 108-1, pp. 16-21). The State also called Smith’s daughter, who

22

testified about her memories of her father and her loss. See Testimony of Amber Smith,

23

Transcript of Proceedings, July 10, 1995, Respondents’ Exh. 46, pp. 19-21 (ECF No.

24

108-1, pp. 22-24). The State also called Nika’s mother-in-law and his father-in-law, who

25

testified about Nika’s violent temper, and about occasions when Nika threatened them

26

and their daughter, Nika’s wife, including occasions when he threatened family

27

members with a gun. See Testimony of Anna Boka, Transcript of Proceedings, July 10,

28

1995, Respondents’ Exh. 46, pp. 22-38 (ECF No. 108-1, pp. 25-41); Testimony of Peter
32

1

Boka, Transcript of Proceedings, July 10, 1995, Respondents’ Exh. 46, pp. 81-95 (ECF

2

No. 108-1, pp. 84-98). The State also called Carlos Calzadilla, who testified about an

3

incident in which Nika threatened him with a machete, mistakenly believing that he had

4

burglarized Nika’s family members’ home. See Testimony of Carlos Alexis Calzadilla,

5

Transcript of Proceedings, July 10, 1995, Respondents’ Exh. 46, pp. 45-56 (ECF No.

6

108-1, pp. 48-59). The State also called a woman who testified that Nika sexually

7

assaulted her. See Testimony, Transcript of Proceedings, July 10, 1995, Respondents’

8

Exh. 46, pp. 58-80 (ECF No. 108-1, pp. 61-83).

9

In the defense case in the penalty phase of the trial, Nika’s counsel called two

10

witnesses. The first was Nika’s wife, Rodika. See Testimony of Rodika Nika, Transcript

11

of Proceedings, July 10, 1995, Respondents’ Exh. 46, pp. 96-118 (ECF No. 108-1, pp.

12

99-121). Nika’s counsel questioned Rodika about the allegation that Nika committed a

13

sexual assault. See id. at 100-03 (ECF No. 108-1, pp. 103-06). Counsel also questioned

14

her about the incident in which Nika threatened Calzadilla with a machete. See id. at

15

103-06 (ECF No. 108-1, pp. 106-09). And, counsel questioned her about an incident in

16

which Nika got into a fight with her father and allegedly threatened him with a gun. See

17

id. at 106-09 (ECF No. 108-1, pp. 109-12). In these lines of questioning, Nika’s counsel

18

attempted, mostly unsuccessfully, to cast doubt on the allegations about Nika’s violent

19

behavior. Beyond that, though, much of Rodika’s testimony actually reflected negatively

20

on Nika. See, e.g., Id. at 97-99 (her parents did not want her to marry Nika, and they

21

generally did not like him), 98 (Nika would hit things, but not her, when he was angry)

22

(ECF No. 108-1, pp. 100-102). Rodika did testify, generally, that Nika was a good

23

person and a good father, and she loved him. See id. at 110, 116-17 (ECF No. 108-1,

24

pp. 113, 119-20). On cross-examination, Rodika acknowledged that she was not

25

present and did not know what happened in the incident in which Nika was accused of

26

sexual assault, in the incident involving him threatening a man with a machete, and in

27

his fight with her father. Id. at 112-14 (ECF No. 108-1, pp. 115-17). Also, on cross-

28

examination, the prosecutor elicited testimony from Rodika suggesting that Nika
33

1

committed a battery on a woman who was seven months pregnant. See id. at 117-18

2

(ECF No. 108-1, pp. 120-21).

3

The other witness called by Nika’s counsel in the penalty phase of his trial was

4

Dorina Vukadin, Nika’s sister-in-law. See Testimony of Dorina Vukadin, Transcript of

5

Proceedings, July 10, 1995, Respondents’ Exh. 46, pp. 119-24 (ECF No. 108-1, pp.

6

122-27). She testified that Nika was helpful to Rodika’s parents, taking care of their

7

yard, and that he was good with her children, but she did not let her children watch the

8

violent movies and television programs that Nika liked to watch. See id. at 120-24 (ECF

9

No. 108-1, pp. 123-27).

10

That was the full extent of Nika’s counsel’s mitigation presentation.

11

Nearly all the evidence presented by the defense in the penalty phase was aimed

12

at attempting to neutralize the State’s evidence that Nika made threats against family

13

members, that he threatened a man with a machete, and that he committed a sexual

14

assault. See Defendant’s Opening Statement, Transcript of Proceedings, July 10, 1995,

15

Respondents’ Exh. 46, pp. 8-12 (ECF No. 108-1, pp. 11-15). The only affirmative

16

mitigation evidence presented by the defense were some very general statements

17

about Nika made by his wife and his sister in law—that his wife thought Nika was a

18

good person and loved him, and that his sister-in-law thought Nika was good with her

19

children. Defense counsel made no attempt to explain to the jury Nika’s apparent violent

20

tendencies. Defense counsel presented no evidence regarding Nika’s background in

21

Serbia, his mental health, or his intellectual capacity.

22
23

Indeed, on Nika’s direct appeal, the Nevada Supreme Court, ruling under

24

NRS 177.055(2)(c) that Nika’s death sentence was not imposed “under the influence of

25

passion, prejudice or any arbitrary factor,” stated:

26
27
28

NRS 177.055(2)(c) requires this court to review “[w]hether the
sentence of death was imposed under the influence of passion, prejudice
or any arbitrary factor.” Nika argues that the jury’s rejection of any
mitigating factors demonstrates that the sentence was imposed under the
influence of passion and prejudice. The prosecution argues that the jury’s
34

1
2
3
4
5
6
7
8
9
10
11
12
13

failure to find any mitigating factors resulted from the fact that no
mitigating evidence was produced at the sentencing hearing. We conclude
that the jury's failure to find any mitigating factors does not prove it acted
under the influence of passion or prejudice.
The only mitigating evidence produced by Nika came from his
family members, and that testimony was very limited. Rodika, Nika's wife,
testified that she believed that Nika was generally a good person, but she
also admitted that Nika was violent and had threatened to kill her, her
mother, and her father on separate 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 him, but also that he was a
stern disciplinarian. She also stated that he sometimes exposed her
children to violent movies and television programs. Anna, Nika's motherin-law, testified for the prosecution, and her testimony was primarily
concerned with Nika's death threats against her and members of her
family. On cross-examination, the only positive statement she made
regarding Nika was that Nika and Rodika's child loved Nika. We conclude,
therefore, that the jury could reasonably have found that the mitigating
circumstances did not outweigh the aggravating circumstances and that
the sentence of death was not imposed under the influence of passion,
prejudice or any arbitrary factor.
Nika, 113 Nev. at 1439-40, 951 P.2d at 1057.
About six years before Nika’s trial, the American Bar Association published

14

“Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases”

15

(“Guidelines”), and those have been generally accepted as reflecting standards of

16

practice in death penalty cases. See Guidelines, Petitioner’s Exh. 122 (ECF No. 36-3);

17

see also Padilla v. Kentucky, 559 U.S. 356, 366-67 (2010) (“We long have recognized

18

that ‘[p]revailing norms of practice as reflected in American Bar Association standards

19

and the like ... are guides to determining what is reasonable ....’”) (quoting Strickland,

20

466 U.S. at 688); Porter, 558 U.S. at 39-40 (“It is unquestioned that under the prevailing

21

professional norms at the time of Porter’s trial [in 1988], counsel had an ‘obligation to

22

conduct a thorough investigation of the defendant's background.’”) (quoting Williams,

23

529 U.S. at 396). Under the Guidelines, “[t]he investigation for preparation of the

24

sentencing phase ... should comprise efforts to discover all reasonably available

25

mitigating evidence and evidence to rebut any aggravating evidence that may be

26

introduced by the prosecutor.” Guidelines, Petitioner’s Exh. 122, Guideline 11.4.1 (ECF

27

No. 36-3, p. 14). The Guidelines suggest that defense counsel should develop

28

mitigating evidence regarding the client’s background, including medical history
35

1

(including mental and physical illness or injury, alcohol and drug use, birth trauma, and

2

developmental delays), educational history, special education needs (including cognitive

3

limitations and learning disabilities), military history, employment and training history,

4

family and social history (including physical, sexual or emotional abuse), adult and

5

juvenile record, correctional experience, and religious and cultural influences. See id.

6

(ECF No. 36-3, p. 15); see also id., Guidelines 11.8.3, 11.8.6 (ECF No. 36-3, pp. 24-27).

7

Nika grew up in Vladimirovac, Serbia. He was nineteen years old when he

8

moved to the United States. His entire biological family and all the records related to his

9

childhood remained in Serbia. He had only been in the United States, and had only

10

known his wife and her family, for about five years at the time of his arrest. Yet, Nika’s

11

trial counsel obtained no mitigation evidence regarding his background in Serbia.

12

Nika has presented in this case extensive detailed evidence showing the sort of

13

mitigation evidence that could have—and should have—been developed and presented

14

in the penalty phase of his trial. This is information about Nika that was left unknown to

15

the jury that sentenced him to death.

16

Nika has presented evidence demonstrating that several of Nika’s family

17

members and acquaintances in Serbia would have been willing to testify on his behalf,

18

including his brothers Sveta and Dejan, his sister-in-law Anka, his aunts Bobica and

19

Maria, his uncles Bosko and Gusti, his cousin Strugerel, childhood friends, a teacher,

20

and others. Nika has also shown that his trial counsel could have found, in Serbia,

21

mitigating military records, school records, and photographs. And, Nika has shown that

22

if his trial counsel had retained an appropriate expert, they could have developed

23

mitigating evidence regarding Nika’s mental health and intellectual capacity.

24

Nika, known as “Vinetu” among his friends and in Serbia, is Roma (“Gypsy”).

25

During his childhood in Serbia, the Roma there were marginalized; they were

26

considered to be of low social status, were discriminated against, and were typically

27

poor. See Declaration of Elena Damijan, Petitioner’s Exh. 78, ¶ 2 (ECF No. 21-1);

28

Declaration of Petar Trifu, Petitioner’s Exh. 79, ¶¶ 4, 5 (ECF No. 21-2); Declaration of
36

1

Dejan Nika, Petitioner’s Exh. 80, ¶¶ 3, 13 (ECF No. 21-3); Declaration of Marin Topale,

2

Petitioner’s Exh. 85, ¶ 10 (ECF No. 22-2); Declaration of Rodika Nika, Petitioner’s Exh.

3

142, ¶ 7 (ECF No. 39-5).

4

The evidence presented by Nika shows that he grew up in terrible poverty.

5

He lived for about the first seven years of his life, with his family, in a small one-room,

6

packed-earth house, with no electricity or running water. Nika’s family burned manure to

7

heat their home, and when it rained the roof leaked. Nika’s family sometimes was

8

without enough food, and at times Nika had to beg and scavenge for food. Both Nika’s

9

parents worked long hours, and the children, including Nika, began working from a

10

young age. The family’s poverty limited the education available to Nika and his brothers.

11

See Declaration of Petar Trifu, Petitioner’s Exh. 79, ¶ 11 (ECF No. 21-2); Declaration of

12

Dejan Nika, Petitioner’s Exh. 80, ¶¶ 6, 8 (ECF No. 21-3); Declaration of Izjava Sevke

13

Milosevic, Petitioner’s Exh. 81, ¶ 2 (ECF No. 21-4); Declaration of Marija Miklesku,

14

Petitioner’s Exh. 83, ¶¶ 5, 6 (ECF No. 21-6); Declaration of Strugerel Miklesku,

15

Petitioner’s Exh. 89, ¶ 3 (ECF No. 22-6); Declaration of Sveta Nika, Petitioner’s Exh. 90,

16

¶¶ 4, 5, 7 (ECF No. 23); Declaration of Izjava-Sorin Olar, Petitioner’s Exh. 91, ¶¶ 3, 4

17

(ECF No. 23-2); Declaration of Tammy R. Smith, Petitioner’s Exh. 141, ¶¶ 3-7 (ECF No.

18

39-4); Declaration of Rodika Nika, Petitioner’s Exh. 142, ¶¶ 21-24 (ECF No. 39-5).

19

Nika’s evidence shows that his father, Avram, was an alcoholic who cheated on,

20

and physically abused, Nika’s mother. The evidence also shows that Nika and his

21

brothers suffered ruthless physical abuse by their father. Nika’s father eventually quit

22

drinking, but the beatings continued. See Declaration of Petar Trifu, Petitioner’s Exh. 79,

23

¶ 8 (ECF No. 21-2); Declaration of Dejan Nika, Petitioner’s Exh. 80, ¶¶ 9, 10 (ECF No.

24

21-3); Declaration of Makas “Gusti” Konstandin, Petitioner’s Exh. 82, ¶¶ 7, 8 (ECF No.

25

21-5); Declaration of Marija Miklesku, Petitioner’s Exh. 83, ¶¶ 3, 4 (ECF No. 21-6);

26

Declaration of Nedelka “Bobica” Konstandinov and George “Bosko” Konstantin,

27

Petitioner’s Exh. 86, ¶ 11 (ECF No. 22-3); Declaration of Strugerel Miklesku, Petitioner’s

28
37

1

Exh. 89, ¶ 4 (ECF No. 22-6); Declaration of Sveta Nika, Petitioner’s Exh. 90, ¶¶ 8-15

2

(ECF No. 23); Declaration of Rodika Nika, Petitioner’s Exh. 142, ¶ 26 (ECF No. 39-5).

3

Nika’s evidence shows that his intellectual capacity was limited from a very early

4

age, and that he was exposed to a number of risk factors for brain damage including

5

low birth weight, malnutrition, exposure to pesticides, exposure to lead, and head

6

trauma. See Declaration of Anka Nika, Petitioner’s Exh. 77, ¶ 4 (ECF No. 20-6);

7

Declaration of Dejan Nika, Petitioner’s Exh. 80, ¶¶ 13, 14 (ECF No. 21-3); Declaration of

8

Sveta Nika, Petitioner’s Exh. 90, ¶¶ 5, 7, 20 (ECF No. 23). Nika attended school only

9

through the eighth grade and barely received passing grades. See School Records,

10

Petitioner’s Exh. 94 (ECF No. 23-5); School Records, Petitioner’s Exh. 123 (ECF No.

11

36-4). If trial counsel had inquired of Nika’s wife, Rodika, they would have discovered

12

that she thought Nika to be of extremely low intelligence:

13
14
15
16
17
18
19

Avram was always very gullible and easily frustrated. He was unable to
see the subtleties in anything. He had very minimal intellectual
capabilities. On a scale from one to ten, with ten being the most intelligent,
Avram was a two, and that's being generous.... [H]e never was able to fill
out paperwork for himself so I had to do all of that for him.
Declaration of Rodika Nika, Petitioner’s Exh. 142, ¶ 9 (ECF No. 39-5, p. 3).
Nika has presented a neuropsychological evaluation, by Tatjana NovakovicAgopian, Ph.D., who concluded:

24

Mr. Nika’s performance on the current neuropsychological
evaluation, administered in his native language (Serbian), indicated that
he has significant cognitive difficulties which were particularly prominent in
the domains of memory, executive functioning and language-based tasks.
His performance was impaired, at the lowest 1st and 2nd percentile of his
age group, on tasks requiring him to learn and recall new information,
particularly when presented in the verbal modality. He showed evidence of
concrete thinking, mental inflexibility, and decreased problem solving and
planning, particularly for novel and more complex tasks, and performed in
the lowest 2nd to 5th percentile of his age group on tests assessing the
above domains.

25

Neuropsychological Evaluation, Petitioner’s Exh. 76, p. 11 (ECF No. 20-5, p. 12).

26

Dr. Novakovic-Agopian also wrote:

20
21
22
23

27
28

Executive control functioning is typically defined as functions
guiding goal directed behavior, including planning, problem solving
(particularly in novel complex situations), self monitoring, mental flexibility,
38

1
2
3
4
5
6
7
8
9

and being able to consider alternatives. Individuals with executive
dysfunction may exhibit difficulties in one or more of these areas. These
can be particularly pronounced when confronted with a stressful situation.
In such cases these individuals may feel overwhelmed, not be able to
comprehend and process the aspects of the situation, and act impulsively.
On the current neuropsychological evaluation, Mr. Nika exhibited
several characteristics of executive dysfunction, including concrete
thinking, mental inflexibility, and limited planning and problem solving
abilities, particularly in novel and more complex situations. Based on
available information and the evaluation, these are chronic impairments
and would have been present at the time of the offense in August 1994.
Id. at 12-13 (ECF No. 20-5, pp. 13-14).
This Court finds that Nika’s trial counsel performed ineffectively in not
investigating Nika’s background to discover mitigating evidence, such as that described

10

above, and the Court finds, further, that had counsel done so, and presented such

11

mitigating evidence to the jury, there is a reasonable probability that the jury would not

12

have sentenced Nika to death. The jury would have heard of Nika’s upbringing as a

13

member of a marginalized group, in abject poverty, in a cold and leaky one-room mud-

14

brick house with no indoor plumbing. The jury would have heard that Nika worked as a

15

child to help support his family and had to beg and scavenge for food. The jury would

16

have heard that Nika’s father was an alcoholic for much of Nika’s childhood, and that he

17

engaged in extramarital affairs. The jury would have heard that Nika was brutally beaten

18

by his father throughout his childhood. The jury would have heard about Nika’s cognitive

19

and impulse-control deficits, and his minimal education. The jury would have heard of

20

Nika’s military service. The jury would have heard that, in Serbia, Nika had an extended

21

family and circle of friends that cared about him. In short, available mitigating evidence

22

would have humanized Nika before the jury and would have provided some explanation

23

for Nika’s behavior. It is reasonably probable that such mitigation evidence could have

24

changed the balance of aggravating and mitigating circumstances, or the ultimate

25

sentencing decision, for at least one juror. See Porter, 558 U.S. at 39-44; Wiggins, 539

26

U.S. at 537 (“Had the jury been able to place petitioner’s excruciating life history on the

27

mitigating side of the scale, there is a reasonable probability that at least one juror

28

would have struck a different balance.”); Penry v. Lynaugh, 492 U.S. 302, 319 (1989)
39

1

(“‘[E]vidence about the defendant’s background and character is relevant because of

2

the belief, long held by this society, that defendants who commit criminal acts that are

3

attributable to a disadvantaged background, or to emotional and mental problems, may

4

be less culpable than defendants who have no such excuse’”) (quoting California v.

5

Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring)); Eddings, 455 U.S. at 112

6

(consideration of defendant’s life history is “‘part of the process of inflicting the penalty

7

of death’”); Lambright v. Schriro, 490 F.3d 1103, 1116-28 (9th Cir. 2007). The Court

8

finds that Nika’s federal constitutional right to effective assistance of counsel was

9

violated as Nika claims in Ground 1G.

10

Nika requests discovery and an evidentiary hearing regarding Ground 1G. See

11

Motion for Discovery (ECF No. 166), pp. 14-24; Motion for Evidentiary Hearing (ECF

12

No. 168), pp. 5-6. However, as the Court grants Nika relief with respect to Ground 1G

13

without need for further factual development, the Court will deny his requests for

14

discovery and an evidentiary hearing relative to the claim.

15

Ground 6 - Vienna Convention

16

In Ground 6, Nika claims that his federal constitutional rights, and his rights under

17

an international treaty and international law, were violated because “[t]he State of

18

Nevada and Mr. Nika’s trial counsel failed to inform Mr. Nika that he had a right under

19

Article 36 of the Vienna Convention on Consular Relations to notify Serbian consular

20

officials of his arrest and detention.” See Second Amended Petition (ECF No. 73),

21

pp. 144-50.

22

Nika is from Vladimirovac, Serbia. At the time of his arrest and conviction, Nika

23

was a citizen of the Federal Republic of Yugoslavia. The United States and Yugoslavia

24

were signatories to an international treaty known as the 1963 Vienna Convention on

25

Consular Relations (“Vienna Convention”). Nika claims that his rights were violated

26

because the State of Nevada did not notify the Yugoslavian consulate of his arrest, and

27

because he received ineffective assistance of counsel as a result of his trial counsel’s

28
40

1

failure to notify him of his rights under the Vienna Convention and failure to contact the

2

Yugoslavian consulate.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

Nika raised these claims in his first state habeas action, and on his appeal in that
action the Nevada Supreme Court ruled as follows:
Nika argues that the district court erred by dismissing his claim that
trial counsel were ineffective for failing to contact the Yugoslavian
consulate because had counsel done so, the consulate would have
provided "immense help in securing mitigation." [Footnote omitted.] Nika
failed to identify what mitigation evidence the consulate could have
provided other than to assert that the consulate could have explained that
the vulgar name Smith allegedly called Nika would have incited the
“reasonable passions of an average, reasonable Romanian, Serbian or
Yugoslavian.” Nika contends that this evidence would have shown in the
guilt phase and penalty hearing that Smith’s murder was at most a “heat of
passion,” impulsive killing. However, we conclude that Nika failed to
demonstrate that there was a reasonable probability of a different outcome
but for counsel’s failure to contact the consulate. The evidence showed
that Smith suffered three blunt force trauma wounds and skull fractures on
the back of his head, one of which was inflicted while Smith was lying
down. Smith also suffered a contact bullet wound to his forehead. These
wounds evince a calculated, deliberate act. It is not clear what additional
evidence the consulate could have provided or that there was a
reasonable probability of a different outcome had evidence of Yugoslavian
social mores been obtained. Therefore, we conclude that the district court
did not err by summarily dismissing this claim. [Footnote: To the extent
Nika argued that officials failed to contact the Yugoslavian consulate in
violation of international law, this claim was appropriate for direct appeal,
and we conclude that he failed to demonstrate good cause for his failure
to raise it previously or prejudice. See NRS 34.810(1)(b). Therefore, the
district court did not err by summarily dismissing this claim.]

19

Nika, 124 Nev. at 1294-95, 198 P.3d at 854-55. Two justices dissented from this ruling:

20

... I believe that trial counsel were ineffective for not seeking
assistance from the Yugoslavian consulate to unearth mitigation evidence.
The record reveals that Nika is from Romania and spoke only limited
English. In my view, educating the jury respecting Nika's cultural
background was essential to explaining his character and conduct. The
absence of this evidence prejudiced Nika because the jury was left with an
incomplete depiction of his character.

21
22
23
24

Nika, 124 Nev. at 1302, 198 P.3d at 859-60 (Cherry, J., with whom Saitta, J., agreed,

25

concurring in part and dissenting in part).

26

Nika raised these claims again in his second state habeas action. The Nevada

27

Supreme Court held the ineffective assistance of counsel claim to be procedurally

28

barred in that action. See Order of Affirmance, Respondents’ Exh. 196 (ECF No. 125-4).
41

1

The Nevada Supreme Court ruled, as follows, that Nika did not make a showing of

2

cause and prejudice to overcome the procedural bar:

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

Nika contends that the district court erred in denying his claim that
post-conviction counsel were ineffective for failing to engage the services
of the Serbian consulate in litigating his prior post-conviction petition. He
asserts that the consulate would have paid for a mental health expert,
investigated his background in Serbia, and aided witnesses in traveling to
testify. He contends that the consulate’s assistance would have aided in
demonstrating that trial counsel were ineffective for failing to seek the
consulate’s assistance in litigating the suppression hearing, guilt phase of
trial, and the case in mitigation. We conclude that Nika failed to
demonstrate prejudice from post-conviction counsels’ litigation of this
claim. As discussed above, the evidence of Nika’s psychological
condition was not so persuasive as to undermine the evidence received at
the suppression hearing that Nika responded appropriately to questioning
and did not seem confused or incapable of waiving his right to remain
silent. As to the guilt phase of trial, evidence of his cognitive disorder was
not so persuasive that it would undermine the physical evidence
demonstrating that the murder was calculated and deliberate. Lastly,
Nika did not demonstrate that any mitigation evidence that the consulate
could have aided in producing would have had an effect on the outcome of
the penalty hearing. Therefore, the district court did not err in denying this
post-conviction-counsel claim. [Footnote: Nika argues that he never
received a full and fair opportunity to litigate his claims of ineffective
assistance of trial counsel because the district court denied his petition
without conducting an evidentiary hearing. As his claims of ineffective
assistance of post-conviction counsel and trial counsel lack merit, the
district court did not err in not conducting an evidentiary hearing.]
Id. at 20-21 (ECF No. 125-4, pp. 21-22).
Nika’s claim in Ground 6 that his rights were violated because the State did not

19

contact the Yugoslavian consulate or notify him of his rights under the Vienna

20

Convention was, in Nika’s first state habeas action, ruled procedurally barred in state

21

court and is therefore subject to the procedural default doctrine in this case. Nika has

22

not made any showing of cause and prejudice, or any other showing, to overcome this

23

procedural default. This part of Ground 6 will be denied on the ground of procedural

24

default.

25

On the other hand, regarding the claim of ineffective assistance of trial counsel in

26

Ground 6, the Court determines that Nika has made a showing sufficient to overcome

27

the procedural bar of that claim. In Martinez, the Supreme Court ruled that ineffective

28
42

1

assistance of post-conviction counsel may serve as cause, to overcome the procedural

2

default of a claim of ineffective assistance of trial counsel. Martinez, 566 U.S. at 8-9.

3

If the petitioner shows that his counsel was inadequate in the initial collateral review

4

proceeding in state court, the petitioner can overcome the procedural default; to do so,

5

the petitioner must establish that the claim of ineffective assistance of trial counsel is

6

substantial and that post-conviction counsel was ineffective. Martinez, 566 U.S. at 16-

7

17. In Nika’s first state habeas action, his post-conviction counsel asserted the claim

8

that Nika’s trial counsel was ineffective for not contacting the consulate. However, while

9

Nika’s first post-conviction counsel did contact the Serbian consulate at Nika’s request

10

and had perfunctory communications with the consulate, counsel did not request any

11

assistance from the consulate, and did not take any action to develop evidence to show

12

what assistance the consulate could have provided to Nika’s trial counsel. See Letter

13

from Nika to Counsel, August 14, 2001, Petitioner’s Exh. 163 (ECF No. 73-2, p. 150);

14

Letter from Counsel to Serbian Embassy, August 21, 2001, Petitioner’s Exh. 164 (ECF

15

No. 73-2, pp. 152-53); Declaration of Dejan Radulovic, Acting Consul General of the

16

Republic of Serbia in Chicago, Petitioner’s Exh. 194 (ECF No. 132-18). The Court finds

17

Nika’s post-conviction counsel’s performance to be unreasonable in this respect. And,

18

as is discussed below, Nika’s ineffective assistance of trial counsel claim in Ground 6 is

19

meritorious; had Nika’s post-conviction counsel requested assistance from the

20

consulate, they would have found that the consulate could have provided valuable

21

assistance regarding Nika’s case in mitigation. Under Martinez, Nika overcomes the

22

procedural default of the ineffective assistance of trial counsel claim in Ground 6, and

23

the Court proceeds to consider the merits of that claim de novo. See Cone, 556 U.S. at

24

472; Porter, 558 U.S. at 39.

25

Respondents argue that Ground 6—apparently including the ineffective

26

assistance of trial counsel claim—is not cognizable in this federal habeas corpus action

27

because “[t]he Supreme Court has never clearly established that the Vienna Convention

28

creates judicially enforceable private rights as opposed to public rights enforceable by
43

1

signatory nations to the treaty.” Answer (ECF No. 160), pp. 42-43. This argument, in this

2

Court’s view, may apply to the claim that the State violated Nika’s rights under the

3

treaty, but, as that claim is denied as procedurally defaulted, the Court need not resolve

4

the issue. On the other hand, this argument does not apply to Nika’s claim that his right

5

to effective assistance of trial counsel was violated. Nika’s claim is that his trial counsel

6

should have known of the Vienna Convention and should have contacted the

7

Yugoslavian consulate on his behalf; such a claim does not turn on the existence of

8

private rights enforceable under the Vienna Convention. The Supreme Court cases

9

cited by Respondents—Medellin v. Texas, 552 U.S. 491 (2008), and Sanchez-Llamas v.

10

Oregon, 548 U.S. 331 (2006)—do not involve claims of ineffective assistance of counsel

11

related to the Vienna Convention, and do not preclude Nika’s ineffective assistance of

12

counsel claim. See Sanchez-Llamas, 548 U.S. at 363-64 & n. 3 (Ginsburg, J.,

13

concurring) (noting that the defendant “did not include a Vienna-Convention-based,

14

ineffective-assistance-of-counsel claim along with his direct Vienna Convention claim in

15

his initial habeas petition”); Osiagiede v. United States, 543 F.3d 399, 406-08 (7th Cir.

16

2008).

17

The Court finds that Nika’s trial counsel’s performance, in not advising Nika of his

18

rights under the Vienna Convention and in not contacting the Yugoslavian consulate,

19

was objectively unreasonable.

20

In 1994 and 1995, when Nika was arrested and tried, the United States had been

21

a signatory to the Vienna Convention for some 25 years. At that time, Yugoslavian

22

consular services were available in the United States, at the Yugoslavian embassy in

23

Washington D.C. (For this reason, the Court uses the terms “consulate” and “embassy”

24

interchangeably in referring to the location where Yugoslavian consular services were

25

available in 1994 and 1995.). According to Desko Nikitovic, who was Serbia’s Consul

26

General in 2010:

27
28

Within the period when Mr. Nika was tried for allegedly committing
acts (1994-95), the Republic of Serbia and the Federal Republic of
Yugoslavia, of which Serbia was a part, had an Embassy in Washington
44

1
2

which could deal with consular protection of its citizens. Because of the
known circumstances in the relations between the two countries, the
Embassy was represented at the level of the Charge d’Affere, but the
consular operations operated smoothly.

3

Letter from Desko Nikitovic, Consul General of the Republic of Serbia, to Counsel,

4

February 3, 2010, Petitioner’s Exh. 124 (ECF No. 36-5, p. 2); see also Declaration of

5

Dejan Radulovic, Acting Consul General of the Republic of Serbia in Chicago,

6

Petitioner’s Exh. 161 (ECF No. 73-2, pp. 143-44); Declaration of Milutin Novovic,

7

Petitioner’s Exh. 162 (ECF No. 73-2, pp. 146-48).

8
9
10
11
12
13

When Nika’s trial counsel took his case over from the Washoe County Public
Defender’s Office, there was a memorandum in the file, stating:
In talking to Mansure [an interpreter], he tells me that all Yugoslav
Embassys are closed in this country except perhaps one in Los Angeles
and for certain one in Washington, D.C. I need to have some contact
through the diplomatic services to the Yugoslav Embassy where ever to
determine if we can find a court fluent interpreter. This is vital as using
Mansure will require one sentence at a time proceeding.

14

Request for Investigation, Petitioner’s Exh. 95 (ECF No. 23-6). The evidence indicates,

15

however, that Nika’s trial counsel never contacted the Yugoslavian consulate about

16

finding an interpreter, or for any other purpose.

17

In 2010, in a letter to Nika’s counsel, Desko Nikitovic, the Consul General of the

18

Republic of Serbia, wrote the following about what the consulate could have done to

19

assist with Nika’s defense:

20
21
22
23

[I]n the event that the attorneys for Mr. Nika addressed the
Embassy, they would have been able to obtain assistance in the sense
that they would have been able to contact the parents and relatives of
Mr. [Nika] as well as the competent authorities of the Republic of Serbia
and inform them about this case. Also, the Embassy could have requested
additional information in possession of those authorities, and submit the
data to Mr. [Nika’s] attorneys.

24

Letter from Desko Nikitovic, Consul General of the Republic of Serbia, to Counsel,

25

February 3, 2010, Petitioner’s Exh. 124 (ECF No. 36-5, p. 2). In a declaration executed

26

in 2015 the then acting Consul General of the Republic of Serbia, Dejan Radulovic,

27

stated:

28
45

1
2
3
4
5
6

The Ministry [of Foreign Affairs] is not aware of any other instance,
anywhere in the world, in which a [Federal Republic of Yugoslavia
(“FRY”)] or Serbian national has been subjected to a capital sentence. But
in other cases involving potentially long terms of incarceration, the country
has provided significant funding for the accused’s legal team, monitored ...
the legal team’s effectiveness, assisted in arranging psychosocial and
medical evaluations and treatment, as well as interpretation and
translation services, and supported the gathering of evidence from family
and authorities in Serbia. The Ministry would have worked with the
Embassy in Washington to provide these services to Mr. Nika if we had
been notified of his arrest in 1994.
Declaration of Dejan Radulovic, Acting Consul General of the Republic of Serbia in

7

Chicago, Petitioner’s Exh. 161, p. 2 (ECF No. 73-2, p. 144). Milutin Novovic, who served

8
as a consular officer at the Yugoslavian embassy, in Washington D.C., from 1991 to
9
1996, states in a declaration:
10
11
12
13
14
15
16
17

If I had been informed that Mr. Nika suffers from a
neuropsychological condition, or if consular staff observed or otherwise
learned of such a condition, the Embassy would have taken steps to have
Mr. Nika evaluated by a culturally competent specialist.
*

*

*

Had his counsel requested assistance in securing documentary or
physical evidence in the FRY, the Embassy would have provided that
assistance. Further, it would have facilitated communication with
Mr. Nika’s family in the FRY.
Declaration of Milutin Novovic, Petitioner’s Exh. 162, p. 2 (ECF No. 73-2, pp. 147).
After Nika’s current counsel contacted the Serbian consulate and requested

18
assistance, Serbian officials: facilitated interviews with family and friends of Nika in
19

Serbia; obtained Nika’s school, medical and military records; helped secure a

20
neuropsychological evaluation by a culturally competent expert; met with Nika on
21
numerous occasions; filed amicus pleadings in state and federal court; attended court
22

hearings; provided translation and interpretation assistance; put Nika’s counsel in touch

23
with a former consular affairs officer; and provided additional information regarding
24
25
26
27

Roma culture. See Amicus Brief of the Republic of Serbia (ECF No. 72), p. 6. “Serbia
has worked closely with Mr. Nika’s counsel to collect a substantial amount of evidence
relevant to understanding Mr. Nika’s life history and behavior before, during, and after
his arrest.” Id. at 7. With the assistance of the Serbian consulate, Nika’s counsel has

28
46

1

developed significant mitigation evidence concerning Nika’s childhood and background

2

in Serbia and his neuropsychological condition. See Discussion of Ground 1G, supra;

3

see also Neuropsychological Evaluation, Petitioner’s Exh. 76 (ECF No. 20-5);

4

Declaration of Anka Nika, Petitioner’s Exh. 77 (ECF No. 20-6); Declaration of Elena

5

Damijan, Petitioner’s Exh. 78 (ECF No. 21-1); Declaration of Petar Trifu, Petitioner’s

6

Exh. 79 (ECF No. 21-2); Declaration of Dejan Nika, Petitioner’s Exh. 80 (ECF No. 21-3);

7

Declaration of Izjava Sevke Milosevic, Petitioner’s Exh. 81 (ECF No. 21-4); Declaration

8

of Makas “Gusti” Konstandin, Petitioner’s Exh. 82 (ECF No. 21-5); Declaration of Marija

9

Miklesku, Petitioner’s Exh. 83 (ECF No. 21-6); Declaration of Izjava Mile Popovica,

10

Petitioner’s Exh. 84 (ECF No. 22); (Declaration of Marin Topale, Petitioner’s Exh. 85

11

(ECF No. 22-2); Declaration of Nedelka “Bobica” Konstandinov and George “Bosko”

12

Konstantin, Petitioner’s Exh. 86 (ECF No. 22-3); Statement from Jelena Sekesan and

13

Pauna Sekesan, Petitioner’s Exh. 87 (ECF No. 22-4); Declaration of Strugerel Miklesku,

14

Petitioner’s Exh. 89 (ECF No. 22-6); Declaration of Sveta Nika, Petitioner’s Exh. 90

15

(ECF No. 23); Declaration of Izjava-Sorin Olar, Petitioner’s Exh. 91 (ECF No. 23-2);

16

Declaration of Adam Steflja and Darinka Steflja, Petitioner’s Exh. 92 (ECF No. 23-3);

17

Military Booklet, Petitioner’s Exh. 93 (ECF No. 23-4); School Records, Petitioner’s Exh.

18

94 (ECF No. 23-5); School Records, Petitioner’s Exh. 123 (ECF No. 36-4); Letter from

19

Desko Nikitovic, Consul General of the Republic of Serbia, to Counsel, February 3,

20

2010, Petitioner’s Exh. 124 (ECF No. 36-5, p. 2); Declaration of Tammy R. Smith,

21

Petitioner’s Exh. 141 (ECF No. 39-4).

22

The Court finds that Nika’s trial counsel unreasonably failed, before trial, to

23

advise Nika of his rights under the Vienna Convention and to contact the Yugoslavian

24

consulate, and that, if Nika’s trial counsel had contacted the Yugoslavian consulate

25

before trial, and had, with the assistance of the consulate, developed evidence for

26

presentation in mitigation in the penalty phase of Nika’s trial, there is a reasonable

27

probability that the outcome of the penalty phase of Nika’s trial would have been

28

different, that is, that the jury would not have imposed the death sentence. Therefore,
47

1

with respect to the penalty phase of his trial, the Court finds that Nika’s federal

2

constitutional rights were violated because he received ineffective assistance of trial

3

counsel, as a result of his trial counsel’s failure to inform him of his rights under the

4

Vienna Convention and contact the Yugoslavian consulate on his behalf.

5

Regarding the guilt phase of his trial, on the other hand, the Court finds, in view

6

of the strong evidence against Nika, that Nika has not shown a reasonable probability of

7

a different result had trial counsel informed him of his rights under the Vienna

8

Convention or contacted the Yugoslavian consulate on his behalf. The Court denies

9

Nika relief on Ground 6 with respect to the guilt phase of his trial.

10

Nika requests an evidentiary hearing with regard to the ineffective assistance of

11

counsel claims in Ground 6. See Motion for Evidentiary Hearing (ECF No. 168), pp. 5-6.

12

The Court grants relief on this claim with regard to the penalty phase of Nika’s trial,

13

without need for further factual development. And, regarding the ineffective assistance

14

of counsel claim in Ground 6 relative to the guilt phase of Nika’s trial, the Court finds the

15

request for an evidentiary hearing to be insubstantial. Nika’s request does not identify

16

any particular question of fact to be resolved, and he gives no indication what sort of

17

evidence he would offer. Nika’s motion for an evidentiary hearing regarding Ground 6

18

will be denied.

19
20
21

The Constitutional Errors Relative to the Penalty Phase of
Nika’s Trial Were Not Harmless.
In order to obtain habeas corpus relief, the petitioner must show that

22

constitutional errors caused “actual prejudice” or had “substantial and injurious effect or

23

influence” in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637

24

(1993) (citation omitted). “While the combined effect of multiple errors may violate due

25

process even when no single error amounts to a constitutional violation or requires

26

reversal, habeas relief is warranted only where the errors infect a trial with unfairness.”

27

Peyton v. Cullen, 658 F.3d 890, 896–97 (9th Cir. 2011) (citing Chambers v. Mississippi,

28

401 U.S. 284, 298, 302–03 (1973)). Nika meets this standard.
48

1

The errors identified by Nika in Grounds 1G and 6—ineffective assistance of

2

counsel on account of trial counsel’s failure to develop mitigating evidence concerning

3

Nika’s background and mental deficiencies, and on account of trial counsel’s failure to

4

inform him of his rights under the Vienna Convention and contact the Yugoslavian

5

consulate on his behalf—go hand in hand. The result of both was the meager case in

6

mitigation presented by the defense in the penalty phase of Nika’s trial. As the Nevada

7

Supreme Court recognized on Nika’s direct appeal, only very limited mitigating evidence

8

was presented on Nika’s behalf. See Nika, 113 Nev. at 1439-40, 951 P.2d at 1057.

9

There was essentially no mitigating evidence presented concerning Nika’s background

10

in Serbia and his neuropsychological condition. Nika has demonstrated that there was

11

significant such mitigating evidence available, and that the available evidence was

12

strong enough to have made a difference had Nika’s counsel discovered it and

13

presented it.

14

The jury found one aggravating circumstance: that the murder was committed at

15

random and without apparent motive. See Verdict, Respondents’ Exh. 50 (ECF No.

16

108-5). This Court finds that the weight of that aggravating circumstance was not great.

17

Contrary the language of the aggravating circumstance, the murder in this case was not

18

“random” and “without apparent motive” as those terms would normally be understood.

19

Rather, it is undisputed that after the victim was killed, Nika took his car. However, the

20

trial court instructed the jury that, under Nevada law, “[a] murder may be random and

21

without apparent motive if the killing of a person was not necessary to complete a

22

robbery.” Penalty Phase Jury Instructions, Respondents’ Exh. 48, Instruction No. 14

23

(ECF No. 108-3, p. 15). So, while any murder is an egregious crime, the one

24

aggravating circumstance found in this case was not one that made this murder far

25

more egregious than other first-degree murders committed in conjunction with a theft.

26

Cognizant of the nature and weight of the one aggravating circumstance found

27

by the jury, the Court finds that the failure of Nika’s counsel to develop mitigating

28

evidence concerning his background and mental deficits, and their failure and to inform
49

1

Nika of his rights under the Vienna Convention and to contact the Yugoslavian

2

consulate on his behalf, had a substantial and injurious effect in determining the jury’s

3

verdict imposing the death penalty. And, moreover, the effect of these errors on the part

4

of Nika’s counsel was exacerbated by the Mills error identified in Ground 7B. Because

5

so little mitigating evidence was presented by counsel, and because the Mills error likely

6

prevented the jury from weighing even that mitigating evidence against the aggravating

7

circumstance unless the jurors unanimously agreed upon the existence of a mitigating

8

circumstance, there ended up being little chance that any mitigating evidence at all was

9

weighed against the aggravating circumstance.
In sum, the Court determines that the constitutional errors identified in Grounds

10
11

1G, 6 (the ineffective assistance of trial counsel with respect to the penalty phase of the

12

trial) and 7B infected the penalty phase of Nika’s trial with unfairness. The Court will,

13

therefore, grant Nika habeas corpus relief, with respect to his death sentence, on

14

Grounds 1G, 6 and 7B.

15

Nika’s Other Claims

16

The Court denies Nika habeas corpus relief with respect to his other claims, as is

17

discussed below.
Ground 3 - The Aggravating Circumstance

18

In Ground 3, Nika claims that his federal constitutional rights were violated “due

19
20

to the jury’s finding the statutory aggravating circumstance that the murder was

21

committed at random and without apparent motive, which is facially unconstitutional and

22

invalid as applied to Mr. Nika.” See Second Amended Petition (ECF No. 73), pp. 111-

23

19.

24

In the penalty phase of Nika’s trial, the jury was instructed that first-degree

25

murder could be aggravated, rendering Nika eligible for the death penalty, if the jury

26

found that “[t]he murder was committed upon Edward V. Smith at random and without

27

apparent motive.” Penalty Phase Jury Instructions, Respondents’ Exh. 48, Instruction

28

No. 12 (ECF No. 108-3, p. 13). The jury was further instructed:
50

1
2

A murder may be random and without apparent motive if the killing
of a person was not necessary to complete a robbery.

3

Id., Instruction No. 14 (ECF No. 108-3, p. 15). The jury returned a verdict finding this

4

aggravating circumstance and imposing the death penalty. See Verdict, Respondents’

5

Exh. 50 (ECF No. 108-5). The jury did not find the murder to be aggravated as

6

committed in the course of a robbery or attempted robbery. See id.

7

Nika asserted this claim on his direct appeal, and the Nevada Supreme Court

8

denied the claim, stating in a divided opinion that Nika “fails to raise an issue not

9

previously addressed by this court in its numerous other opinions upholding the

10

constitutionality of NRS 200.033(9),” and declining to revisit the issue. See Opinion,

11

Respondents’ Exh. 81, p. 15 (ECF No. 111-5, p. 16) (citing Lane v. State, 110 Nev.

12

1156, 881 P.2d 1358 (1994); Paine v. State, 110 Nev. 609, 877 P.2d 1025 (1994), cert.

13

denied, 514 U.S. 1038 (1995); Bennett v. State, 106 Nev. 135, 787 P.2d 797 (1990);

14

Moran v. State, 103 Nev. 138, 734 P.2d 712 91987); and Ford v. State, 102 Nev. 126,

15

717 P.2d 27 (1986)). The Nevada Supreme Court ruled, further, that the evidence

16

supported application of the aggravator because the jury could have found that the

17

killing was not necessary to complete a robbery. See id. at 16-18 (ECF No. 111-5, pp.

18

17-19) (citing Lane, supra; Paine, supra; Bennett, supra; and Moran, supra). One justice

19

concurred, stating his opinion that the aggravator could have properly applied whether

20

or not the jury found that a robbery occurred. See id., Maupin, J., concurring (ECF No.

21

111-5, pp. 24-25). One justice dissented, stating his opinion that the evidence did not

22

support a finding that the murder was random and without motive, because there was

23

evidence that Nika killed Smith out of anger or to commit a robbery. See id., Springer,

24

J., dissenting (ECF No. 111-5, pp. 26-31). Another justice dissented, stating his opinion

25

that NRS 200.033(9) should not be applied in the context of a robbery where a jury finds

26

the killing unnecessary for the robbery, that the jury instructions should define the terms

27

“random,” “apparent,” and “motive” consistent with their usual meanings, and that it was

28

improper for the State to argue during the guilt phase of the trial that Nika acted with a
51

1

motive—anger or robbery—and then argue during the penalty phase that he acted

2

without a motive. See id., Rose, J., dissenting (ECF No. 111-5, pp. 36-41).

3

Nika also asserted this claim in his first state habeas action. In that action, the

4

Nevada Supreme Court again denied relief on the claim, distinguishing Nika’s case from

5

the case of Leslie v Warden, 118 Nev. 773, 59 P.3d 440 (2002), in which—after Nika’s

6

direct appeal but before the appeal in his first state habeas action—the Nevada

7

Supreme Court disavowed the jury instruction applying the aggravator where a killing

8

was unnecessary to complete a robbery, and ruled that the “aggravator only applies to

9

situations in which the defendant selected his victim without a specific purpose or

10

objective and his reasons for the killing are not obvious or easily understood.” Leslie,

11

118 Nev. at 782, 59 P.3d at 446. The Nevada Supreme Court stated that the concerns

12

expressed in Leslie are not present in Nika’s case, because Nika was not charged with

13

robbery and the jury rejected the robbery aggravator, and because the evidence in

14

Nika’s case supported the finding that Nika murdered Smith at random and without

15

apparent motive, unrelated to the taking of Smith’s property. The court concluded:

16
17
18
19

Although Leslie altered the scope of the challenged aggravator, Nika fails
to persuade us that the doctrine of the law of the case should be
abandoned under the particular facts of his case. Consequently, we
conclude that the district court did not err by summarily dismissing this
claim.
Nika, 124 Nev. at 1298-1300, 198 P.3d at 857-58.

20

An aggravating circumstance must “genuinely narrow the class of persons

21

eligible for the death penalty and must reasonably justify the imposition of a more

22

severe sentence on the defendant compared to others found guilty of murder.” Zant v.

23

Stephens, 462 U.S. 862, 877 (1983). To do so, the aggravating circumstance “may not

24

apply to every defendant convicted of a murder; it must apply only to a subclass of

25

defendants convicted of murder.” Tuilaepa v. California, 512 U.S. 967, 972 (1994). And,

26

it must not be unconstitutionally vague. Id.

27
28

The Court determines that the Nevada Supreme Court’s denial of this claim was
not contrary to, or an unreasonable application of, Supreme Court precedent and was
52

1

not based on an unreasonable determination of the facts in light of the evidence. The

2

Court finds that it was not unreasonable for the Nevada Supreme Court to conclude that

3

the aggravator was not unconstitutionally vague, and that it narrowed, at least

4

somewhat, the range of murders to which the death penalty applied. The terms

5

“random” and “apparently without motive” do not necessarily need definition to be

6

understandable. And, as the Nevada Supreme Court ruled on the appeal in Nika’s first

7

state habeas action, in view of the evidence at trial, the jury could have found that the

8

murder was unnecessary for the commission of a robbery, and was “random and

9

apparently without motive” as defined for the jury under Nevada law.

10

With respect to Nika’s other arguments—that the application of the aggravator

11

violated his constitutional right of equal protection under the law, that the aggravator

12

subjects less culpable murders to the death penalty, and that the aggravator results in

13

an unconstitutional shift of the burden of proof—Nika does not show the Nevada

14

Supreme Court’s rejection of any of those theories to have been contrary to, or an

15

unreasonable application of, Supreme Court precedent.

16
17
18

The Court will deny Nika relief with respect to Ground 3.
Grounds 1C and 5 - Nika’s Statements to the Police
In Ground 5, Nika claims that his federal constitutional rights were violated “due

19

to the improper admission of Mr. Nika’s custodial incriminating statements in violation of

20

Miranda v. Arizona.” See Second Amended Petition (ECF No. 73), pp. 128-43. In

21

Ground 1C, Nika claims that his federal constitutional rights were violated as a result of

22

ineffective assistance of his trial counsel because “[t]rial counsel were ineffective in

23

litigating the motion to suppress Mr. Nika’s statements to police.” See id. at 53-62.

24

Nika made incriminating statements on three occasions. On August 29, 1994,

25

upon his arrest in Chicago, Nika made statements to Chicago police detectives, in

26

which he repeatedly changed his story about how he came to possess the victim’s car.

27

The next day, August 30, 1994, Nevada police officers arrived in Chicago and

28

questioned Nika, and he again made inconsistent statements and an admission. Then,
53

1

two days later, on September 2, 1994, when he was being booked into the Washoe

2

County Detention Center, after he was returned to Nevada, Nika made an admission in

3

a response to a question asked by the jail booking officer. Evidence of the first and third

4

of these statements was admitted into evidence in the guilt phase of Nika’s trial. See

5

Second Amended Petition (ECF No. 73), pp. 128-29, 136. The trial court suppressed

6

evidence of the second of Nika’s statements, the statement made to the Nevada police

7

officers in Chicago. See id. at 136.
A person subjected to custodial interrogation must be advised that “he has the

8
9

right to remain silent, that any statement he does make may be used as evidence

10

against him, and that he has a right to the presence of an attorney.” Miranda v. Arizona,

11

384 U.S. 436, 444 (1966). “To admit an inculpatory statement made by a defendant

12

during custodial interrogation, the defendant’s waiver of Miranda rights must be

13

voluntary, knowing, and intelligent.” United States v. Shi, 525 F.3d 709, 727 (9th Cir.

14

2008) (internal quotation marks and citation omitted). In determining the knowing and

15

intelligent nature of the waiver, courts are to consider the totality of the circumstances.

16

See United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007); United States v.

17

Gamez, 301 F.3d 1138, 1144 (9th Cir. 2002). “[T[he waiver must have been made with

18

a full awareness of both the nature of the right being abandoned and the consequences

19

of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986). With

20

respect to the voluntariness of the waiver, “the relinquishment of the right must have

21

been voluntary in the sense that it was the product of a free and deliberate choice rather

22

than intimidation, coercion, or deception.” Id.
On Nika’s direct appeal, the Nevada Supreme Court ruled, sua sponte, as

23
24

follows, with respect to the statements Nika made to the officer at the Washoe County

25

jail:

26
27
28

On September 1, 1994, after being extradited to Nevada from
Illinois, Nika was booked into the Washoe County jail. The following day,
Washoe County Deputy Colleen Villa called Nika aside. Villa worked in the
county jail’s classification unit and it was her job to place prisoners in an
environment where they did not present a danger to themselves or others.
54

1
2
3
4
5
6
7
8
9
10
11
12

To facilitate the placement process, Villa asked every prisoner a series of
questions from a pre-printed questionnaire. One of the questions on the
form was, “Have you ever assaulted or battered anyone?” When Villa
asked Nika this question, he answered that he had fought with a man one
evening around 9 p.m. or 9:30 p.m. and that the man was dead. Nika also
stated that a gun was placed to a head, but Villa was unsure of who
placed the gun to whose head. Nevertheless, Villa did not pursue the
answer nor ask for a clarification from Nika. She merely continued down
the list of questions on the form.
The dissent contends that because Villa knew Nika was arrested
for murder, she would reasonably foresee the questionnaire would elicit an
incriminating response from Nika; and therefore, she engaged in a
custodial interrogation by merely reading the questionnaire. Taken a step
further, if Villa knew nothing about Nika, the exact same question would
not be a custodial interrogation under this analysis. We find this factual
distinction unpersuasive. Villa asked the same questions of every
prisoner. Villa testified she never asked for clarification from a prisoner nor
did she do anything other than move on to the next question. Interestingly,
when Nika’s counsel was questioned as to why this issue was not raised
on appeal, he stated Nika conceded it was merely routine questioning for
the purpose of classification and not a custodial interrogation.

15

Moreover, the safety of prisoners in custody is the purpose behind
these questions. There is no getting around this type of question when
trying to determine the threat, if any, a particular prisoner may pose to
another. While the State can control many things, it cannot control what a
prisoner might say when asked a particular question. Therefore, the
district court did not err in determining that no custodial interrogation
occurred.

16

Nika, 113 Nev. at 1438-39, 951 P.2d at 1056-57. A dissenting justice wrote that, in his

17

opinion, the questioning of Nika at the Washoe County jail was an interrogation, subject

18

to the Miranda rule, and it was a violation of Nika’s constitutional rights to not exclude

19

Nika’s response from evidence. Id., 113 Nev. at 1445-48, 951 P.2d at 1061-63 (Rose,

20

J., dissenting).

13
14

21

Nika then raised this claim in his first state habeas action. See Second

22

Supplemental Petition for Writ of Habeas Corpus, Respondents’ Exh. 146, pp. 21-36

23

(ECF No. 119-1, pp. 22-37). The state district court denied the claim (see Order

24

Granting Motion to Dismiss, Respondents’ Exh. 150 (ECF No. 120-3)), and the Nevada

25

Supreme Court affirmed without discussion. Nika, 124 Nev. at 1291-92, 198 P.3d at

26

852-53.

27
28

The Nevada Supreme Court’s ruling that the questioning by the jail booking
officer was not an interrogation was not contrary to, or an unreasonable application of,
55

1

United States Supreme Court precedent, and was not based on an unreasonable

2

determination of the facts in light of the evidence. See Pennsylvania v. Muniz, 496 U.S.

3

582, 600-01 (1990); Rhode Island v. Innis, 446 U.S. 291, 298-302 (1980). It was not

4

unreasonable for the Nevada Supreme Court to conclude that the booking officer’s

5

questioning was not such that she should have known it to be reasonably likely to elicit

6

an incriminating response from Nika. See Muniz, 496 U.S. at 600-01; Innis, 446 U.S. at

7

298-302; see also Transcript of Proceedings, June 7, 1995, Respondents’ Exh. 23, pp.

8

147-57 (ECF No. 98-1, pp. 148-58).

9

Regarding his statements to the Chicago police, Nika claims that his waiver of his

10

Miranda rights with respect to those statements was not voluntary, knowing and

11

intelligent, because of his limited English proficiency, limited education, limited contact

12

with the American criminal justice system, and limited cultural awareness. It was not

13

unreasonable for the Nevada Supreme Court to deny relief on this claim. Taking into

14

account the evidence presented in the trial court (see Transcript of Proceedings,

15

June 7, 1995, Respondents’ Exh. 23, pp. 8-207 (ECF No. 98-1, pp. 9-208); Transcript of

16

Proceedings, June 8, 1995, Respondents’ Exh. 24, pp. 3-127 (ECF No. 99-1, pp. 4-

17

128)), and all the circumstances, the Nevada Supreme Court could reasonably have

18

ruled that Nika voluntarily, knowingly and intelligently waived his Miranda rights.

19

Nika claims, in Ground 1C, that his trial counsel were ineffective for failing to

20

argue, in support of the motion to suppress his statements, that Nika could not have

21

voluntarily, intelligently and knowingly waived his Miranda rights because of his

22

upbringing in Yugoslavia, his cultural background and his cognitive deficits. See Second

23

Amended Petition (ECF No. 73), pp. 53-62. Nika also claims that his trial counsel were

24

ineffective, with respect to the motion to suppress, because they did not effectively

25

support his contention that that he had poor command of the English language,

26

primarily because they retained an unqualified expert. See id.

27
28

Nika raised this claim of ineffective assistance of his trial counsel for the first time
in state court in his second state habeas action, and it was ruled procedurally barred in
56

1

that action. See Order entered March 16, 2017 (ECF No. 151), pp. 7-8. On the appeal in

2

that action, the Nevada Supreme Court ruled, as follows, that Nika did not make a

3

showing of cause and prejudice, under state law, to overcome the procedural bar:

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

Nika contends that trial counsel were ineffective for failing to
present the following witnesses to testify during his suppression hearing:
(1) an expert witness to testify about cultural differences and his cognitive
deficits, (2) lay witnesses to corroborate his poor English skills, (3) an
expert familiar with the Yugoslavian legal system to testify that Nika
would concede guilt because he feared torture and that Nika should have
expected the automatic appointment of counsel in the case of a serious
offense, and (4) a Roma cultural expert to demonstrate that Nika
perceived that police officers would treat him unfairly as he was Roma.
He asserts the district court erred in concluding that post-conviction
counsel was not ineffective for failing to litigate this claim of ineffective
assistance of trial counsel in an effective manner.
We conclude that Nika failed to demonstrate that he was prejudiced
by post-conviction counsels’ omission of this trial-counsel claim. Nika’s
proposed new evidence is unpersuasive because it is largely internally
inconsistent as some of that evidence showed that Nika had cognitive
difficulties and confessed because he feared torture by the authorities,
while other evidence portrayed him as sophisticated enough with the
Serbian justice system to expect appointed counsel during his
interrogation. The evidence is also inconsistent with the trial record—his
proffered fear of torture was undermined by the fact that he made
requests for food and cigarettes during the brief interrogation. Therefore,
this evidence does not undermine the testimony presented in the trial
court that Nika had communicated in English with jail staff, detectives,
and another inmate or show that his waiver was not knowing or
voluntary. See Berghuis v. Thompkins, 560 U.S. 370, 382 (2010)
(admitting evidence where the prosecution demonstrates that an accused
knowingly and voluntarily waived his right to remain silent). Moreover,
there was sufficient evidence apart from the statement to sustain his
conviction, including witnesses who placed him in the area of the murder
with the victim, the victim's blood on Nika’s clothing, the victim’s
belongings in Nika’s possession, and Nika’s self-incriminating statements
to another inmate. Given these circumstances, we are not convinced that
post-conviction counsels’ omission of this trial-counsel claim was
objectively unreasonable or resulted in prejudice. Therefore, Nika failed
to demonstrate that the district court erred in denying this claim.
Order of Affirmance, Respondents’ Exh. 196, pp. 7-8 (ECF No. 125-4, pp. 8-9).
This Court agrees with the Nevada Supreme Court’s conclusion in this regard.

25

Nika has not shown cause and prejudice, under Martinez, with respect to this claim.

26

Nika’s counsel in his first state habeas action was not ineffective for not asserting that

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trial counsel were ineffective with respect to their litigation of the motion to suppress,

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and Nika was not prejudiced.
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Therefore, the Court will deny Nika relief with respect to Grounds 1C and 5.

2

Nika requests leave of court to conduct discovery regarding Grounds 1C and 5,

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and he requests an evidentiary hearing regarding Ground 1C. See Motion for Discovery

4

(ECF No. 166), pp. 24-29, 47-48; Motion for Evidentiary Hearing (ECF No. 168), p. 12.

5

Regarding Ground 5, as the Court resolves the claim under 28 U.S.C. § 2254(d), the

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Court will deny Nika’s request for factual development regarding the claim. Regarding

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Ground 1C, Nika proposes discovery with respect to his English proficiency and cultural

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factors that allegedly affected his waivers, subjects unrelated to the grounds on which

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the claim is denied. The suggested discovery would have no effect on the Court’s

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resolution of this claim. The Court finds that Nika has not shown good cause for

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discovery, and the Court will deny this request for discovery on this claim. As for Nika’s

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request for an evidentiary hearing on Ground 1C, the Court finds that request to be

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insubstantial. Nika mentions Ground 1C only in passing in his motion for evidentiary

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hearing and does not provide any argument as to what factual issue should be

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addressed or what sort of evidence he would seek to present. The Court will deny

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Nika’s motions for discovery and an evidentiary hearing with respect to these claims.

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Grounds 1F2, 4A and 8 - Nika’s Statements to Nathanial Wilson
In Ground 4A, Nika claims that his federal constitutional rights were violated

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because Nathanial Wilson, acting as an agent of the State, elicited statements from

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Nika in the Washoe County Jail, without Nika’s counsel present, after Nika’s right to

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counsel had attached, and because “[t]he State committed misconduct by failing to

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disclose an executory promise of benefits made to witness Nathanial Wilson.” See

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Second Amended Petition (ECF No. 73), pp. 120-26. In Ground 8, Nika claims that his

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federal constitutional rights were violated “due to the trial court’s improper, repeated

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ex parte contacts with the State regarding an executory promise of benefits to State’s

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witness Nathanial Wilson.” See id.at 160-61. In Ground 1F2, Nika claims that his federal

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constitutional rights were violated as a result of ineffective assistance of his trial counsel

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because “[t]rial counsel were ineffective for failing to investigate and present evidence
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that Nataniel Wilson was acting as an agent of the State, and received benefits in

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exchange for his testimony.” See id. at 77-78.

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Nika asserted these claims in state court, and the Nevada Supreme Court ruled
on them on their merits.

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With respect to Nika’s claims in Grounds 4A and 8, the state district court held an

6

evidentiary hearing (see Transcript of Proceedings, Respondents’ Exhs. 122, 123 (ECF

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Nos. 116-12, 117-1)), and denied the claims, and, on appeal, the Nevada Supreme

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Court affirmed, ruling as follows:

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Nika claims that the State’s use of Wilson, the jailhouse informant,
was unconstitutional. The district court held an evidentiary hearing on this
claim and rejected it, providing factual findings and legal conclusions. The
State has not disputed that Nika could not have raised this issue on direct
appeal, apparently because he did not learn of and had no reason to know
of the pretrial meetings regarding Wilson until sometime after his appeal
was decided. The question is whether the claim warrants any relief. We
conclude that it does not.
*

*

*

Nika’s first contention is that the State’s use of Wilson violated
Nika’s Sixth Amendment right to counsel. He cites Massiah v. United
States [footnote: 377 U.S. 201, 205-07, 84 S.Ct. 1199, 12 L.Ed.2d 246
(1964); see also Fellers v. United States, 540 U.S. 519, 124 S.Ct. 1019,
157 L.Ed.2d 1016 (2004) (same)], which holds that the Sixth Amendment
right to counsel prevents admission of evidence of a defendant’s
statements which have been deliberately elicited by a government agent
after the right has attached. Nika enjoyed such a right when he spoke to
Wilson because adversarial proceedings had begun [footnote: Estelle v.
Smith, 451 U.S. 454, 469-70, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981)
(stating that the Sixth Amendment right to counsel attaches once
adversarial proceedings have been initiated); see also U.S. Const. amend
VI] and he was represented by the Public Defender. He fails, however, to
show that Wilson acted as an agent of the State when he first gained
incriminating information from Nika. Determining whether a person acted
as a state agent depends on the facts and circumstances of each case
and presents a mixed question of fact and law. [Footnote: Simmons v.
State, 112 Nev. 91, 99, 912 P.2d 217, 221 (1996).]
Nika speculates that the police “approached” Wilson and “baited”
him into eliciting information about Nika. This speculation lacks hard
evidence. Nika points out that when Wilson was interviewed on October
11, 1994, he first spoke about another inmate until the interviewing
detective expressly asked about Nika. This does not indicate that Wilson
was a state agent: he had already talked with Nika and had already told a
deputy at the jail that he had information from Nika. Nika points out that
the detective did not refuse Wilson’s offer to gather more information. In
the interview, when Wilson remarked that he could find out more about the
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gun Nika used, the detective did not respond. This detail is germane to
Wilson’s status after the interview when he gained further information from
Nika; it does not somehow retroactively render him a state agent in his
earlier conversations with Nika. Nika also claims that the transcript of the
interview is not complete (or that prosecutor Stanton “blatantly lied”)
because the transcript differs from the description of the interview Stanton
gave to the trial court more than two weeks later and because the
transcript shows that the detective spoke to Wilson while the tape recorder
was off despite stating otherwise. We conclude that these discrepancies
are trivial. Nika also stresses that a report by a jail deputy referred to
Wilson as “my informant” and speculates that other police reports are
missing. But “informant” is not synonymous with “agent,” and speculation
unsupported by facts is of no value. In the end, Nika presents no proof,
most notably no testimony or even affidavit by Wilson, to contradict the
evidence that Wilson did not act on behest of the State initially. This
evidence includes Wilson’s trial testimony, prosecutor Stanton’s testimony
at the post-conviction hearing and his original representations to the trial
court, prosecutor Viloria’s post-conviction testimony, and the timing and
substance of events in Wilson’s own case, discussed below.
Wilson’s status after his first interview with the detective and after
Stanton ensured that the Public Defender would be discharged and that
Wilson would continue to have access to Nika is not so clear. When during
the interview Wilson remarked that he could find out more about the gun,
he revealed that he thought his role might be to gather more information
for officials. Neither the detective nor anyone else dissuaded him from this
idea, and his trial testimony indicates that he then actively elicited more
information from Nika. Furthermore, when Stanton made sure that Wilson
stayed in proximity to Nika, Stanton was aware of Wilson’s remark, having
observed the interview. Stanton was also aware that the two inmates had
formed a relationship in which Nika confided in Wilson. But even assuming
these facts establish that after the interview Wilson acted as an agent of
the State [footnote: Cf., e.g., People v. Whitt, 36 Cal.3d 724, 205 Cal.Rptr.
810, 685 P.2d 1161, 1168-73 (1984) (concluding that though question was
close and difficult, inmate informant’s conduct was not attributable to the
state), limitation on other grounds recognized by People v. Marquez, 1
Cal.4th 553, 3 Cal.Rptr.2d 710, 822 P.2d 418 (1992)], Nika was not
prejudiced because Wilson obtained the primary incriminating evidence—
that Nika admitted in some detail to shooting the victim—before
approaching the authorities. The little information that Wilson obtained
later, mainly that the murder weapon was an automatic, was insignificant.
Nika also suggests that Stanton made an implicit agreement with
Wilson for his testimony without revealing it to the defense or the jury. This
would violate due process under Brady v. Maryland [footnote: 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] and its progeny because acts
which imply an agreement or understanding with a witness are relevant to
credibility and must be disclosed. [Footnote: See Giglio v. United States,
405 U.S. 150, 155, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Jimenez v. State,
112 Nev. 610, 622, 918 P.2d 687, 695 (1996).] But again Nika fails to
provide facts to support his claim. The most that he demonstrates is that
according to Stanton’s pretrial representation to the trial court, Wilson at
his interview “informed the detectives that he would like some
consideration for his testimony, although no specifics were given or
requested by him.” However, prosecutors Stanton and Viloria both testified
at the post-conviction hearing that regardless of any expectations on
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Wilson’s part, they neither offered nor provided him with any benefits in
exchange for his testimony.
Moreover, the timing and substance of events in Wilson’s own case
in 1994 repel Nika’s assertion that Wilson expected and received leniency
in return for his assistance in Nika’s case. On September 29, Wilson
pleaded guilty to unlawful sale of a controlled substance, having reached a
plea agreement requiring the State to concur with the recommendation of
the Division of Parole and Probation. About a week passed before Wilson
approached officers at the jail, on or around October 7, with information
about Nika, and the detective interviewed Wilson on October 11. The
Division completed its presentence investigation report on Wilson on
November 7, recommending a suspended sentence and probation. In
Wilson’s statement attached to the report, he proclaimed a general
willingness to help police, but nothing in the report noted his assistance in
Nika’s case. Wilson was sentenced on November 16, more than seven
months before Nika’s trial, and again his assistance in Nika's case was not
raised. Thus, Wilson first offered to give information against Nika only after
reaching a plea agreement in his own case, and he testified against Nika
long after being sentenced himself.
Nika infers from Stanton’s presence at Wilson’s sentencing that
Stanton must have spoken to District Judge Kosach on Wilson’s behalf.
No other evidence supports this inference, and Stanton denied it. Stanton
did not recall attending the sentencing, but there is no need to assume
that he was there to benefit Wilson. It is possible that he attended to
ensure that the Public Defender withdrew from representing Wilson and/or
to see whether Wilson would be in prison or would have to be subpoenaed
to testify at Nika’s trial. (Wilson’s eventual presence was secured from
California by a material witness order and bench warrant.) Regardless,
Nika fails to provide any proof that Stanton intervened on Wilson’s behalf
or that Wilson received any benefit from testifying against Nika.
Next, Nika contends that the pretrial meetings between the trial
court, Stanton, and at times the Public Defender violated his due process
right to disclosure of exculpatory information and his right to conflict-free
counsel. In condemning the meetings, Nika relies again on his claims that
Wilson was an agent of and had reached an agreement with the State.
These contentions are unavailing. As explained above, Wilson initially
acted on his own in gaining the primary incriminating evidence from Nika,
the Public Defender acted to protect Nika’s interests in warning him not to
speak to other inmates, and there is no showing that Wilson made an
agreement with the State. Nika also claims that Stanton told the defense
nothing about Wilson, leaving the defense unable to impeach Wilson’s
claim that he had no ulterior motive in testifying against Nika. Actually, the
State informed the defense before trial about Nika’s admissions to Wilson.
It appears that the only information not disclosed was Stanton’s
observation that Wilson told detectives that he would like some
consideration for his testimony. Nika emphasizes that Wilson testified he
came forward to police because Nika “just didn't have no heart” and that
the prosecutor relied on this testimony in the penalty phase. Nevertheless,
even assuming that Stanton should have informed the defense of Wilson’s
statement regarding consideration, we agree with the district court that
Nika failed to demonstrate prejudice: even if Wilson approached officers
hoping to gain some benefit and the jury had learned this, there was no
reasonable probability of a different result in Nika's trial.
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The district court did not err in denying this claim.
Nika, 120 Nev. at 607-11, 97 P.3d at 1145-48.
With respect to Nika’s claim based on Massiah, in Ground 4A, this Court

4

determines that the Nevada Supreme Court’s ruling was not contrary to, or an

5

unreasonable application of, that case, and was not based on an unreasonable

6

determination of the facts in light of the evidence. In light of the evidence, it was

7

reasonable to conclude that, at least before Wilson met with the detective, he was not

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an agent of the State. And, further, it was reasonable to conclude that after that

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meeting, any additional information that Wilson learned from Nika had no significant

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impact at trial.
Similarly, with respect to Nika’s claim based on Brady, in Ground 4A, the Nevada

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Supreme Court’s ruling was not contrary to, or an unreasonable application of, that

13

case, and was not based on an unreasonable determination of the facts in light of the

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evidence. Nika’s claim is that the State did not disclose to the defense the existence of

15

an agreement with Wilson, under which he would receive consideration in return for

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gathering evidence against Nika and/or testifying at trial, but, in light of the evidence, it

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was not unreasonable for the Nevada Supreme Court to conclude that there was no

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such agreement. Nika makes no showing that any exculpatory evidence was withheld

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from the defense.

20

Turning to Nika’s claim, in Ground 8, that his constitutional rights were violated

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as a result of the trial court’s ex parte communications with the prosecution regarding

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Wilson, that claim fails because Nika does not point to any United States Supreme

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Court precedent that is contrary to, or that was misapplied in, the Nevada Supreme

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Court’s ruling.

25

And, regarding Nika’s related claim of ineffective assistance of his trial counsel,

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in Ground 1F2, Nika does not make a showing how his trial counsel performed

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unreasonably, and he does not make a showing how his trial counsel could have done

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anything different that might have brought a different outcome at trial. The Nevada
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Supreme Court’s ruling, affirming denial of relief on this claim, was not contrary to, or an

2

unreasonable application of Strickland, and was not based on an unreasonable

3

determination of the facts in light of the evidence.

4

The Court will deny Nika habeas corpus relief on Grounds 1F2, 4A and 8.

5

Nika requests discovery regarding Grounds 1F2 and 4A. See Motion for

6

Discovery (ECF No. 166), pp. 29-42. However, as the Court denies these claims under

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28 U.S.C. § 2254(d), further factual development is foreclosed, and there is no good

8

cause for the discovery. Nika’s request for discovery here will be denied.

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Ground 1F1 - Defense Theory
In Ground 1F1, Nika claims that his federal constitutional rights were violated as

11

a result of ineffective assistance of his trial counsel because “[t]rial counsel were

12

ineffective for failing to investigate and present an argument that Mr. Nika was provoked

13

and acted in the heat of passion, or in self-defense.” See Second Amended Petition

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(ECF No. 73), pp. 73-77.

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Nika asserted this claim in his first state habeas action, and the Nevada Supreme
Court affirmed the denial of relief on the claim, as follows:
Nika contends that the district court improperly dismissed his claim
that trial counsel provided ineffective assistance by pursuing a defense
that someone else murdered Smith rather than the theory that Nika killed
Smith in self-defense. We disagree. Nika told the police that he did not kill
Smith and actually purchased Smith’s car. And he repeatedly told trial
counsel that he did not kill Smith. Further, jailhouse informant Wilson
testified that Nika admitted to shooting Smith in the head after striking
Smith with a crowbar. Moreover, the medical evidence showed that Smith
suffered three blunt trauma wounds and skull fractures on the back of his
head, one of which was inflicted while Smith was lying face down. And
Smith suffered a single contact bullet wound on his forehead that was
consistent with the gun being placed directly on his skin when it was fired.
This evidence belies a self-defense theory. Based on Nika’s statement to
the police denying his involvement in Smith’s murder and his repeated
denials to counsel, challenging the State’s evidence against Nika as
insufficient to prove that he was the killer was reasonable. We conclude
that Nika failed to adequately substantiate his claim that counsel’s
decision to pursue a defense that someone other than Nika killed Smith
was unreasonable or that but for counsel's decision to pursue this
defense, there was a reasonable probability of a different outcome.
Therefore, we conclude that the district court did not err by summarily
dismissing this claim.
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Nika, 124 Nev. at 1292, 198 P.3d at 853.
Nika asserted such a claim again in his second state habeas action, and the

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Nevada Supreme Court ruled that the claim was procedurally barred, and that Nika did

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not show cause and prejudice to overcome the procedural bar, as follows:

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Nika argues that the district court erred in denying his claim that
post-conviction counsel were ineffective for failing to litigate trial counsels’
failure to refute the evidence of first-degree murder. He asserts that trial
counsel were ineffective for failing to develop evidence that Nika may
have acted in self-defense or the heat of passion in response to the victim
attempting to rob him at gunpoint or evidence that might explain why he
was not forthcoming with the police.
We have previously concluded that the physical evidence in this
case belies a claim of self-defense and instead shows a calculated effort
to kill the victim. Nika v. State (Nika III), 124 Nev. 1272, 1295, 198 P.3d
839, 854 (2008). The victim was shot while he was lying helpless on the
ground after being felled by three strikes to the back of his head. Id. at
1277, 198 P.3d at 843. As he could not have been a threat at the time
he was shot, self-defense is not a viable defense. See Runion v. State,
116 Nev. 1041, 1051, 13 P.3d 52, 59 (2000) (acknowledging that the
killing of another in self-defense is justified where the person who does the
killing “actually and reasonably believes” that he is in imminent danger of
death or great bodily injury from the assailant and the use of force that
might cause death of the assailant is “absolutely necessary under the
circumstances ... for the purpose of avoiding death or great bodily injury
to himself”). Further, as the victim was struck at least once while lying
face down and then turned over and shot in the forehead, there was
undoubtedly time to reflect and deliberate on the course of action.
Therefore, Nika did not demonstrate that psychological evidence or
argument for a lesser degree of homicide would have altered the outcome
of trial. For these reasons, a trial-counsel claim based on the failure to
refute the evidence of first-degree murder with evidence of self-defense or
heat of passion would not have had merit. We cannot fault post-conviction
counsel for omitting it.
Nika also failed to demonstrate that post-conviction counsel
were ineffective for failing to introduce the testimony of a Roma cultural
expert to explain how his distrust of the police prevented him from
asserting that he acted in self-defense during his first interview. However,
expert testimony explaining Nika’s propensity to lie to police does not
render any account that he gave to police any more credible than any
other account. Moreover, the physical evidence at the scene belied any
claim of self-defense. Therefore, Nika failed to demonstrate that the
testimony would have affected the outcome of the trial and that
postconviction counsel were ineffective for failing to introduce it during his
prior post-conviction proceedings.
Order of Affirmance, Respondents’ Exh. 196, pp. 11-13 (ECF No. 125-4, pp. 12-14).

28
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This Court finds this claim to be without merit. Given the strong evidence

2

undermining a heat-of-passion or self-defense theory, as described by the Nevada

3

Supreme Court, it was not unreasonable for trial counsel to eschew such a defense.

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The Nevada Supreme Court’s ruling, in Nika’s first state habeas action, was not

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contrary to, or an unreasonable application of, Supreme Court precedent and was not

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based on an unreasonable determination of the facts in light of the evidence.

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Nika contends that, in light of the new evidence presented in this case and in his

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second state habeas action, including evidence regarding his cultural background and

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his neuropsychological condition, the Court should treat this claim as procedurally

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defaulted, should find under Martinez that his counsel was ineffective in his first state

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habeas action, or should find that the fact-finding process in Nika’s first state habeas

12

action with respect to this claim was defective, and should rule on the claim de novo,

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without granting the Nevada Supreme Court’s ruling deference under 28 U.S.C.

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§ 2254(d). This approach would not change the outcome. Viewing the claim de novo

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and taking into consideration all the evidence presented in support of the claim in this

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case, the result would be the same. In this Court’s view, trial counsel was not

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unreasonable, in hindsight, for not asserting a heat-of-passion or self-defense theory

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that was contrary to representations made by Nika, and Nika was not prejudiced. The

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strong evidence weighing against a heat-of-passion or self-defense theory does not

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allow for such second-guessing of trial counsel’s strategy.

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The Court denies Nika relief with respect to Ground 1F1.

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Nika requests discovery and an evidentiary hearing regarding Ground 1F1. See

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Motion for Discovery (ECF No. 166), pp. 29-40; Motion for Evidentiary Hearing (ECF

24

No. 168), pp. 5, 12. However, as the Court denies the claim under 28 U.S.C. § 2254(d),

25

and as it appears the proposed discovery and the evidence that would apparently be

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proffered at an evidentiary hearing would not affect the Court’s reasons for denying the

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claim even if it were considered de novo, there is no good cause for the discovery, and

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there is no showing that an evidentiary hearing is warranted. Those requests will be

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denied.
Grounds 1D, 9B and 9C - Juror Voir Dire

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Nika asserts three claims involving juror voir dire at his trial. In Ground 1D, Nika

5

claims that his federal constitutional rights were violated as a result of ineffective

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assistance of his trial counsel because “[t]rial counsel were ineffective for failing to

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conduct adequate voir dire.” See Second Amended Petition (ECF No. 73), pp. 62-71. In

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Grounds 9B and 9C, Nika claims that his federal constitutional rights were violated as a

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result of prosecutorial misconduct during juror voir dire. See id. at 162, 164-68.

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Nika’s specific claims of error by his trial counsel in juror voir dire, in Ground 1D,
are as follows:
“Trial counsel’s questioning of the persons on the venire consisted
for the most part of rambling personal stories followed by questions posed
to the entire venire that did not invoke any responses.” Second Amended
Petition (ECF No. 73), p. 63.
Trial counsel did not ask any questions of jurors Robert Greiner,
John Moon, Denise Fitts and Kathryn Main. Id.
Trial counsel failed to ask jurors Patrick Norris, Helen Coughlin,
Linda Little, Raymond Freeman, William Schneider, Russell Horning and
Kevin Lassen meaningful questions to determine their fairness and
impartiality. Id. at 64.
Trial counsel failed to sufficiently voir dire the venire regarding the
military conflict in Serbia, to ensure that none were biased against Nika,
as a Serb, as a result of media coverage of the conflict. Id. at 64-66.
Trial counsel failed to ask questions of juror Raymond Freeman to
discover that he was an Air National Guardsman who served at the same
facility as the victim, and to discover his attitudes regarding the death
penalty and foreigners. Id. at 66-67.
Trial counsel failed “to strike venire member Mark Porsow for
cause, instead electing to remove him by using one of the defense’s
peremptory challenges.” Id. at 67-68.
68.

Trial counsel failed to take any steps to “life qualify” the jury. Id. at

Trial counsel made inflammatory comments that prejudiced the jury
against Nika. Id. at 68-69.

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Trial counsel failed to object to the State’s use of peremptory
challenges to remove persons from the venire on the basis of gender. Id.
at 69-70.
Trial counsel failed to object to questioning by the prosecution that
deprived Nika of the presumption of innocence, and that misstated the
law. Id. at 70.
Trial counsel failed to immediately move to strike venire member
Dustin Speek when he made xenophobic comments. Id. at 70-71.
Trial counsel failed to move to remove juror Russell Horning for
cause, because he knew that his brother-in-law served in the Air National
Guard with the victim, and that his brother-in-law was present in the
courtroom during the trial. Id. at 71.
Nika raised these claims in state court for the first time in his second state

9
habeas action, and they were ruled procedurally barred; Nika argued that ineffective
10
assistance of his first post-conviction counsel was cause for the procedural bar, such as
11
to excuse it, and the Nevada Supreme Court rejected that argument, as follows:
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Nika contends that the district court erred in denying his claim that
post-conviction counsel were ineffective for failing to argue that trial
counsel were ineffective during voir dire. He asserts that trial counsel were
ineffective for (1) failing to question some veniremembers, (2) failing to
ask meaningful questions of other veniremembers, (3) failing to inquire
about veniremembers’ knowledge of the Serbian military conflict, (4) failing
to life-qualify the venire, (5) making inflammatory comments during jury
selection, (6) failing to object pursuant to Batson [footnote: Batson v.
Kentucky, 476 U.S. 79 (1986)] to the State’s use of peremptory challenges
to remove veniremembers based on their gender, (7) failing to object to
prosecution questions that undermined the presumption of innocence,
(8) failing to strike a veniremember earlier in the process to prevent him
from contaminating the rest of the venire, and (9) failing to remove biased
veniremembers. He also contends that trial counsel failed to adequately
address State misconduct during voir dire. He asserts that if postconviction counsel had raised these claims concerning voir dire as trialcounsel claims, the court would not have denied them as procedurally
defaulted.
We conclude that the district court did not err in denying these
claims because Nika failed to show prejudice. Claims (1)-(4) are
based on trial counsels’ failure to make particular inquiries during voir
dire. In general, those decisions involve trial strategy and it is not clear
that the strategy employed by counsel was not objectively reasonable.
See, e.g., Stanford v. Parker, 266 F.3d 442, 453-55 (6th Cir. 2001)
(observing that defendant has right to life-qualify jury upon request but
failure to do so may be reasonable trial strategy); Brown v. Jones, 255
F.3d 1273, 1279-80 (11th Cir. 2001) (reasonable trial strategy for counsel
to focus jurors’ attention on the death penalty as little as possible and
therefore not life-qualify jurors); Camargo v. State, 55 S.W.3d 255, 260
(Ark. 2001) (“The decision to seat or exclude a particular juror may be a
matter of trial strategy or technique.”). And, as to all claims but (6), supra,
67

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Nika failed to demonstrate prejudice because he failed to show that the
seated jury was not impartial. [Footnote set forth below.] See Wesley v.
State, 112 Nev. 503, 511, 916 P.2d 793, 799 (1996) (stating that “[i]f the
impaneled jury is impartial, the defendant cannot prove prejudice”
resulting from district court’s limitation of voir dire); see also Ham v. State,
7 S.W.3d 433, 439 (Mo. Ct. App. 1999) (“Even assuming it would have
been better strategy to strike [a particular juror], we fail to see how
[defendant] could have been prejudiced because one qualified juror sat
rather than another.”). Because a trial-counsel claim on any of these
grounds would not have entitled Nika to relief, he cannot demonstrate
prejudice based on post-conviction counsel’s failure to raise them as such.
As to the Batson-based trial counsel claim, Nika failed to
demonstrate that post-conviction counsels’ performance was deficient or
that he was prejudiced by the failure to argue trial counsels'
ineffectiveness. Assuming that trial counsel could have demonstrated a
prima facie case of discrimination, see Libby v. State, 113 Nev. 251, 255,
934 P.2d 220, 223 (1997) (explaining that State’s use of seven of nine of
its peremptory challenges to remove women supports an inference of
discrimination), Nika bore the burden of ultimately demonstrating that any
gender-neutral reason given for the strike was a pretext for discrimination,
Ford v. State, 122 Nev. 398, 403, 132 P.3d 574, 577 (2006); see Johnson
v. California, 545 U.S. 162, 171 (2005) (noting the “burden of persuasion
‘rests with, and never shifts from, the opponent of the strike’” (quoting
Purkett v. Elem, 514 U.S. 765, 768 (1995))). The type of questions asked
of the potential jurors did not clearly indicate a discriminatory intent,
women were not entirely eliminated from the jury or even
underrepresented, and the case did not appear sensitive to bias based on
gender. See Ex Parte Trawick, 698 So. 2d 162, 168 (Ala. 1997)
(considering, among other factors, the manner in which a party questions
potential jurors and disparate treatment during voir dire, as evidence of
discriminatory intent); State v. Martinez, 42 P.3d 851, 855 (N.M. App.
2002) (considering, among other factors, whether cognizable group was
underrepresented on the jury or the case was particularly sensitive to bias
as evidence of discriminatory intent). Nika’s speculation that the State
would have been unable to proffer gender-neutral reasons for the strikes
or its reasons would be exposed as a pretext for discrimination did not
demonstrate that trial counsels’ failure to pursue a Batson objection was
objectively unreasonable based on the information available at the time of
trial. See Rhyne v. State, 118 Nev. 1, 8, 38 P.3d 163, 167 (2002)
(observing that counsel’s decision if and when to object is a tactical
decision); Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989)
(“[T]actical decisions are virtually unchallengeable.”).
[Footnote: Nika only identifies two seated jurors who he contends
were biased against him: Russell Horning and Raymond Freeman. As to
Horning, the allegation of bias is based on Horning’s discovery during trial
that his brother-in-law worked at the same base where the victim was
stationed. Because Horning indicated that he did not know the victim and
that it would not affect his ability to impartially weigh the facts of the case,
the record does not support the conclusion that Horning was biased. As to
Freeman, the allegation of bias involves his views on penalty as reflected
in an affidavit completed roughly fifteen years after the verdict. This
information was not available to trial counsel and therefore could not be

28
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3
4
5
6

the basis for a claim that trial counsel were ineffective. See Strickland, 466
U.S. at 689 (“A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.”). At the time
of trial, Freeman did not indicate that he could not follow the instructions of
the court, or that he would impose the death penalty in every case. Based
on the information available to trial counsel, there were no grounds to
remove Freeman.]
Order of Affirmance, Respondents’ Exh. 196, pp. 8-11 (ECF No. 125-4, pp. 9-12).
This Court agrees with the conclusion of the Nevada District Court: Nika’s post-

7
conviction counsel was not ineffective for not asserting this ineffective assistance of trial
8
counsel claim, and Nika was not prejudiced. Much of what Nika complains of, regarding
9

his trial counsel’s performance at jury selection, was plainly a matter of strategy. More

10
importantly though, Nika does not show that he was prejudiced by the alleged
11
shortcomings of his trial counsel with respect to jury selection.
12

“Establishing Strickland prejudice in the context of juror selection requires a

13
showing that, as a result of trial counsel's failure to exercise peremptory challenges, the
14

jury panel contained at least one juror who was biased.” Davis v. Woodford, 384 F.3d

15
628, 643 (9th Cir. 2004) (citing United States v. Quintero–Barraza, 78 F.3d 1344, 1349
16
17
18

(9th Cir. 1995)). “The Supreme Court has suggested that the relevant test for
determining whether a juror is biased is ‘whether the juror[ ] ... had such fixed opinions
that [he] could not judge impartially the guilt of the defendant.’” Quintero–Barraza, 78

19
F.3d at 1349 (quoting Patton v. Yount, 467 U.S. 1025, 1035 (1984)) (alterations in
20
21
22
23
24

original). Nika does not show that any juror was biased. Juror Raymond Freeman’s
2010 declaration does not, in this Court’s view, support the contention that he was
biased—that he had such fixed opinions that he could not impartially judge Nika’s guilt
or innocence. See Declaration of Raymond Freeman, Petitioner’s Exh. 128 (ECF No.
37-3). Regarding juror Russell Horning, this Court finds that the trial court’s questioning

25
of him, outside the presence of the jury, established that he was not biased. See Trial
26

Transcript, July 5, 1995, Respondents’ Exh. 39, pp. 65-70 (ECF No. 105-1, pp. 68-73).

27
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69

1

And, beyond those two jurors, Nika makes no allegation that any of the other jurors

2

were biased.

3

As for trial counsel not objecting to the prosecution’s alleged removal of potential

4

jurors on the basis of gender, based on Batson and J.E.B. v. Alabama, 511 U.S. 127

5

(1994), there is no colorable showing that any such objection would have been

6

successful.

7

And, regarding the prosecutor’s alleged improper statements concerning the

8

presumption of innocence and alleged misstatements of law, this Court determines that

9

the comments of the prosecution were not improper and, at any rate, were not such as

10

to render Nika’s trial unfair, and there is no showing that any objection to those

11

statements would have been successful or would have had any effect on the outcome

12

of the trial.

13

Therefore, the Court finds that Nika does not overcome the procedural default of

14

the claims in Ground 1D, under federal law, by showing ineffective assistance of post-

15

conviction counsel as contemplated in Martinez.

16

Turning to the claims in Grounds 9B and 9C, to the extent that Nika asserts

17

claims of ineffective assistance of trial counsel in Grounds 9B and 9C, those claims are

18

the same as claims asserted in Ground 1D, and they are subject to denial as

19

procedurally defaulted as discussed above.

20

To the extent that, in Ground 9B, Nika asserts a substantive claim, based on the

21

Batson and J.E.B. cases, that his constitutional rights were violated by the prosecution’s

22

removal of potential jurors based on gender, and to the extent that, in Ground 9C, Nika

23

asserts a substantive claim of prosecutorial misconduct based on comments made by

24

the prosecution during jury selection, no such claims were raised in Nika’s first state

25

habeas action, and, in Nika’s second state habeas action, any such claims were ruled

26

procedurally barred. See Second Supplemental Petition for Writ of Habeas Corpus,

27

Respondents’ Exh. 146 (ECF No. 119-1); Order of Affirmance, Respondents’ Exh. 196

28

(ECF No. 125-4). These claims, then, are subject to denial on the ground of procedural
70

1

default, and Nika does not assert any argument that there is cause and prejudice

2

relative to the procedural default. As these substantive claims are not claims of

3

ineffective assistance of trial counsel, Martinez, is inapplicable.

4
5
6

Grounds 1D, 9B and 9C will, therefore, be denied on the ground of procedural
default.
Nika requests discovery and an evidentiary hearing regarding Ground 9B. See

7

Motion for Discovery (ECF No. 166), pp. 48-49; Motion for Evidentiary Hearing (ECF

8

No. 168), p. 19. However, as is explained above, Ground 9B is subject to denial on the

9

ground of procedural default, and Nika makes no argument to overcome the procedural

10

default. Therefore, there is no good cause for the discovery and an evidentiary hearing

11

is unwarranted; Nika’s requests will be denied.

12

Ground 1E - Venue

13

In Ground 1E, Nika claims that his federal constitutional rights were violated as a

14

result of ineffective assistance of his trial counsel because “[t]rial counsel were

15

ineffective for failing to move for a change of venue.” See Second Amended Petition

16

(ECF No. 73), p. 72. Nika alleges that his counsel should have moved for a change of

17

venue because of reports in the media, before Nika’s trial, about Smith’s murder and

18

about Nika, as well as media reports regarding the war in the Balkans. See id.

19

Nika asserted this claim in state court for the first time in his second state habeas

20

action, and it was ruled procedurally barred. Nika argued that ineffective assistance of

21

his first post-conviction counsel was cause for the procedural bar, such as to excuse it,

22

and the Nevada Supreme Court rejected that argument, as follows:

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27
28

Nika contends that the district court erred in denying his claim that
post-conviction counsel were ineffective for omitting a trial-counsel claim
based on their failure to move for a change in venue. He argues that such
a motion was warranted because media reports of his crime and the
tensions in former Yugoslavia made it impossible for him to receive a fair
trial.
We conclude that Nika cannot demonstrate that postconviction
counsels’ omission of this trial-counsel claim was objectively unreasonable
because there was no basis for trial counsel to request a change of venue.
Nearly all of the veniremembers indicated that they had not seen any
71

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news reports related to the trial, and the two veniremembers who had
been exposed to media reports indicated that those reports would not
influence their decision. In addition, a veniremember who indicated that
she was familiar with news reports of the hostilities in Yugoslavia stated
that her knowledge of those events would not affect her ability to
impartially judge the facts of Nika’s case. From this record it appears that
the publicity was not so pernicious as to have been on the mind of every
potential juror. See Sonner v. State, 112 Nev. 1328, 1336, 930 P.2d 707,
712-13 (1996) (noting that even where pretrial publicity has been
pervasive, this court has upheld the denial of motions for change of venue
where the jurors assured the district court during voir dire that they would
be fair and impartial in their deliberations because, in addition to
presenting evidence of inflammatory pretrial publicity, a defendant seeking
a change of venue must demonstrate actual bias on the part of the
empanelled jury), modified on rehearing on other grounds by 114 Nev.
321, 955 P.2d 673 (1998). Because there is insufficient support for the
omitted trial-counsel claim, the district court did not err in denying the
claim that post-conviction counsel was ineffective for omitting it. [Footnote
omitted.]
Order of Affirmance, Respondents’ Exh. 196, pp. 14-15 (ECF No. 125-4, pp. 15-16).
In Hayes v. Ayers, 632 F.3d 500 (9th Cir. 2011), the Ninth Circuit Court of

13

Appeals set forth the law governing when a change of venue is required under the

14

United States Constitution:

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The Sixth and Fourteenth Amendments “guarantee[ ] to the
criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.”
Irvin v. Dowd, 366 U.S. 717, 722 (1961). When a trial court is “unable to
seat an impartial jury because of prejudicial pretrial publicity or an
inflamed community atmosphere[,] ... due process requires that the trial
court grant defendant’s motion for a change of venue.” Harris v. Pulley,
885 F.2d 1354, 1361 (9th Cir.1988) (citing Rideau v. Louisiana, 373 U.S.
723, 726 (1963)).
In this circuit, we have identified “two different types of prejudice in
support of a motion to transfer venue: presumed or actual.” United States
v. Sherwood, 98 F.3d 402, 410 (9th Cir. 1996). Interference with a
defendant’s fair-trial right “is presumed when the record demonstrates that
the community where the trial was held was saturated with prejudicial and
inflammatory media publicity about the crime.” Harris, 885 F.2d at 1361.
Actual prejudice, on the other hand, exists when voir dire reveals that the
jury pool harbors “actual partiality or hostility [against the defendant] that
[cannot] be laid aside.” Id. at 1363. The Supreme Court applied this twopronged analytical approach in a case it decided at the end of its last term.
See Skilling v. United States, 561 U.S. [358, 367] 130 S.Ct. 2896, 2907
(2010) (considering, first, whether pretrial publicity and community hostility
established a presumption of juror prejudice, and then whether actual bias
infected the jury).
***

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“A presumption of prejudice” because of adverse press coverage
“attends only the extreme case.” Skilling, 130 S.Ct. at 2915; see also
Harris, 885 F.2d at 1361 (“The presumed prejudice principle is rarely
applicable and is reserved for an extreme situation.” (citing Neb. Press
Ass’n v. Stuart, 427 U.S. 539, 554 (1976)) (citation and internal quotation
marks omitted)).

4
5
6
7
8
9
10

***
Where circumstances are not so extreme as to warrant a
presumption of prejudice, we must still consider whether publicity and
community outrage resulted in a jury that was actually prejudiced against
the defendant. This inquiry focuses on the nature and extent of the voir
dire examination and prospective jurors’ responses to it. See Skilling, 130
S.Ct. at 2917-23. Our task is to “determine if the jurors demonstrated
actual partiality or hostility [toward the defendant] that could not be laid
aside.” Harris, 885 F.2d at 1363.
Hayes, 632 F.3d at 507-11.
Nika appears to claim that his trial was affected by presumed prejudice, resulting

11
from prejudicial and inflammatory pretrial reports in the media about the crime, and also
12
about the war in the Balkans. See Second Amended Petition (ECF No. 73), p. 72; see
13
also id. at 169-71 (Ground 10, which is incorporated by reference into Ground 1E). Nika
14
makes no allegation in Ground 1E that any juror was actually prejudiced.
15

The Court determines that Nika has not shown the media coverage of Nika’s crime

16
to be anywhere near the sort necessary to give rise to presumed prejudice as recognized
17
in Harris and Skilling. As for the media coverage of the war in the Balkans, Nika does not
18
explain how a change of venue would have ameliorated the effect of the coverage of that
19
story, which plainly was of national interest and presumably covered in the media
20
throughout Nevada. Moreover, Nika does not show that the coverage of the war was such
21
as to give rise to presumed prejudice.
22

Nika’s first post-conviction counsel was not ineffective, within the meaning of

23
Martinez, for failing to assert a claim that trial counsel was ineffective for failing to move
24
for a change of venue, and Nika was not prejudiced. Ground 1E will be denied on
25
procedural default grounds.
26
27
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Ground 1F3 - Trial Counsel’s Opening Statement, Guilt Phase

1
2

In Ground 1F3, Nika claims that his federal constitutional rights were violated as

3

a result of ineffective assistance of his trial counsel because “[t]rial counsel were

4

ineffective during their opening arguments.” See Second Amended Petition (ECF No.

5

73), pp. 78-79. Nika claims that his trial counsel were ineffective for mentioning that the

6

case had been characterized in the media as the “Good Samaritan Killing.” See id.; see

7

also Trial Transcript, June 27, 1995, Respondents’ Exh. 35, pp. 17-40 (ECF No. 101-1,

8

pp. 20-43) (defense opening statement).

9

Here again, Nika asserted this claim in state court for the first time in his second

10

state habeas action, and it was ruled procedurally barred in that case. Nika argued that

11

ineffective assistance of his first post-conviction counsel was cause for the procedural

12

bar, such as to excuse it, and the Nevada Supreme Court rejected that argument, as

13

follows:

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22
23

Nika argues that the district court erred in denying his claim that
post-conviction counsel were ineffective for failing to claim that trial
counsel were ineffective for referring to the case as the “Good Samaritan
killing” during opening statement. We disagree. Given the context of the
comment (an attempt to defuse the effect of the media’s characterization
of the crime), the brevity of the comment, and the substantial evidence of
Nika’s guilt, Nika cannot demonstrate a reasonable probability of a
different outcome had trial counsel not made the comment. Cf. Thomas v.
State, 120 Nev. 37, 47, 83 P.3d 818, 825 (2004) (stating that prosecutor’s
statements are prejudicial when they "so infected the proceedings with
unfairness as to make the results a denial of due process”). Because the
omitted trial-counsel claim had no reasonable likelihood of success, we
cannot fault post-conviction counsel for omitting it. The district court did
not err in denying this claim.
Order of Affirmance, Respondents’ Exh. 196, p. 16 (ECF No. 125-4, p. 17).
This Court finds this claim to be meritless. Nika’s trial counsel’s comments

24

concerning the characterization of the killing as the “Good Samaritan Killing” were, on

25

their face, attempts to challenge, or defuse, that view of the killing. Trial counsel’s

26

opening argument was not unreasonable. See Strickland, 466 U.S. at 689-90

27

(reasonable tactical decision by counsel with which the defendant disagrees cannot

28
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1

form the basis of an ineffective assistance of counsel claim). Nika’s first post-conviction

2

counsel was not ineffective for not asserting this claim.

3

Ground 1F3 is procedurally defaulted, and it will be denied on that ground.
Ground 1F4 - Spousal Privilege

4
5

In Ground 1F4, Nika claims that his federal constitutional rights were violated as

6

a result of ineffective assistance of his trial counsel because “[t]rial counsel were

7

ineffective for waiving the spousal privilege.” See Second Amended Petition (ECF No.

8

73), p. 79.

9

With respect to this claim also, Nika asserted the claim in state court for the first

10

time in his second state habeas action, and it was ruled procedurally barred. Nika

11

argued in state court that ineffective assistance of his first post-conviction counsel was

12

cause for the procedural bar, such as to excuse it, and the Nevada Supreme Court

13

rejected that argument, as follows:

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Nika argues that the district court erred in denying his claim that
post-conviction counsel were ineffective for not challenging trial counsel’s
waiver of Nika’s spousal privilege. He claimed that but for the testimony of
his wife, Rodika, the State would not have been able to prove when he left
California, his reason for leaving, his mood at the time of leaving, and the
fact that Nika is not very bright and prone to panic in stressful situations.
We conclude that Nika failed to show that post-conviction counsel was
ineffective. Rodika’s direct testimony only addressed her observations of
Nika’s conduct and did not recount any conversations between her and
Nika, therefore, the testimony would have been admissible regardless of
Nika’s consent. See Contancio v. State, 98 Nev. 22, 24-25, 639 P.2d 547,
549 (1982) (recognizing that spousal privilege under NRS 49.295(1)(b)
prohibits testimony about communications made during the marriage).
Further, Rodika’s testimony did not incriminate Nika or prove any of the
elements of first-degree murder.
Order of Affirmance, Respondents’ Exh. 196, pp. 13-14 (ECF No. 125-4, pp. 14-15).
This Court agrees with the analysis of the Nevada Supreme Court. First, this

24

Court finds it questionable whether Nika’s wife’s testimony could be construed as

25

incriminating—whether the net effect of her testimony was prejudicial to Nika. But, more

26

importantly, the Nevada Supreme Court’s ruling that Nika’s wife’s testimony would have

27

been admissible under NRS 49.295(1)(b), regardless of Nika’s consent, is a matter of

28

the Nevada Supreme Court’s construction of Nevada law, is authoritative, and is not
75

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subject to review in this federal habeas corpus action. See Estelle v. McGuire, 502 U.S.

2

62, 67-68 (1991); Bonin v. Calderon, 59 F.3d 815, 841 (9th Cir. 1995). Therefore, it is

3

plain that trial counsel was not ineffective for not asserting the privilege, and that Nika’s

4

first post-conviction counsel was not ineffective for not asserting this ineffective

5

assistance of trial counsel claim.

6

Nika does not overcome the procedural default of Ground 1F4, under Martinez,

7

by a showing of ineffective assistance of post-conviction counsel. Ground 1F4 will be

8

denied on the ground of procedural default.

9
10

Ground 1F5 - Unrecorded Bench Conferences
In Ground 1F5, Nika claims that his federal constitutional rights were violated as

11

a result of ineffective assistance of his trial counsel because “[t]rial counsel were

12

ineffective for failing to object to unrecorded bench conferences.” See Second Amended

13

Petition (ECF No. 73), pp. 79-80.

14

With respect to this claim, too, it was first presented in Nika’s second state

15

habeas action, where it was procedurally barred, and the Nevada Supreme Court ruled

16

that Nika did not show ineffective assistance of his first post-conviction counsel such as

17

to overcome the procedural bar:

18
19
20
21
22
23
24
25

Nika asserts that the district court erred in denying his claim that
post-conviction counsel were ineffective for failing to claim that trial
counsel were ineffective for failing to object to unrecorded bench
conferences. Nika failed to explain how he was prejudiced. He did not
specify the subject matter of the listed bench conferences or explain their
significance. See Daniel v. State, 119 Nev. 498, 508, 78 P.3d 890, 897
(2003). Thus, he failed to support this claim with specific facts that, if true,
would entitle him to relief. See Hargrove v. State, 100 Nev. 498, 502, 686
P.2d 222, 225 (1984). Therefore, the district court did not err in denying
this claim.
Order of Affirmance, Respondents’ Exh. 196, p. 13 (ECF No. 125-4, p. 14).
This Court determines, consistent with the Nevada Supreme Court’s ruling, that

26

Nika has not shown that his first post-conviction counsel were ineffective for not

27

asserting this claim. Nika makes no allegation or showing to indicate what was

28

discussed in the bench conferences, or how he was prejudiced by the conferences not
76

1

being reported. This claim is without merit. Because Nika does not show his post-

2

conviction counsel to have been ineffective under Martinez, he does not overcome the

3

procedural default of the claim in Ground 1F5, and it will be denied on that ground.

4

Ground 1F7 - Defense Closing Arguments, Guilt Phase

5

In Ground 1F7, Nika claims that his federal constitutional rights were violated as

6

a result of ineffective assistance of his trial counsel because “[t]rial counsel were

7

ineffective during their closing arguments.” See Second Amended Petition (ECF No.

8

73), pp. 81-89. More specifically, Nika’s claim in Ground 1F7 is as follows:

9
10
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13
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22
23
24
25
26
27
28

Mr. Nika suffered prejudice from trial counsel’s argument which
caused the defense to lose even more credibility before the jury. Mr. Fox’s
[trial counsel’s] closing argument was so deficient that he ceased to be an
advocate for Mr. Nika, and instead his argument echoed the prosecution’s
argument for Mr. Nika’s conviction. Mr. Fox began his argument by
conceding that the instant case was a first-degree murder case and that
the jury should not consider a second-degree murder verdict. Mr. Fox
commented upon Mr. Nika’s failure to testify in violation of his
constitutional rights. Mr. Fox argued facts that were both inflammatory and
outside of the evidence that were incriminating to Mr. Nika. Without any
strategic justification, Mr. Fox disparaged the victim and his wife. Mr. Fox
told the jury that Mr. Nika was guilty of committing other inadmissible bad
acts that were not alleged or proven by the prosecution. Mr. Fox vouched
for the credibility of State witnesses and spent considerable time directing
the jury’s attention to prejudicial pre-trial publicity that was not admissible
at Mr. Nika’s trial. Singly and cumulatively, trial counsel’s ineffectiveness
during closing argument was prejudicial.
Id. at 81.
Nika asserted this claim in his first state habeas action, and, on the appeal in that
action, the Nevada Supreme Court ruled as follows:
Nika argues that the district court erred by dismissing his claim that
trial counsel’s closing argument was deficient for a host of reasons and
that these deficiencies prejudiced him. We have carefully reviewed
counsel’s closing argument and Nika’s challenges to it. Although counsel’s
argument was at times disorganized and unfocused, we conclude that any
deficiency in this regard did not prejudice Nika for two reasons. First,
strong evidence supported Nika’s conviction. Second, Nika’s other trial
counsel provided a separate, subsequent closing argument, which, along
with the district court’s admonishments to Nika’s first counsel, defused
any negative impact from the challenged closing argument. [Footnote: See
Rudin v. State, 120 Nev. 121, 144, 86 P.3d 572, 587 (2004).]
Consequently, Nika failed to adequately explain that but for counsel’s
closing argument a reasonable probability existed that he would not have
been convicted of first-degree murder with the use of a deadly weapon.
77

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3

Therefore, we conclude that the district court did not err by summarily
dismissing this claim.
Nika, 124 Nev. at 1292-93, 198 P.3d at 853.
The Court finds that the Nevada Supreme Court’s adjudication of the claim was

4

not unreasonable. Much of the argument of trial counsel that Nika complains about was

5

plainly a matter of strategy, and, while Nika and reviewing courts might now, in

6

hindsight, question that strategy, the standard for finding counsel’s argument to have

7

been constitutionally defective is high. Counsel has wide latitude in deciding how best to

8

represent a client, and review of counsel's representation is highly deferential, in fact,

9

“doubly deferential when it is conducted through the lens of federal habeas.”

10

Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003). In view of the strong evidence against

11

Nika, and cognizant of the considerable deference mandated by Strickland and the

12

AEDPA, this Court determines that Nika has not shown that no reasonable jurist could

13

find that counsel’s closing argument was reasonable under the circumstances, or that,

14

at any rate, Nika was not prejudiced. See Strickland, 466 U.S. at 689. The Court will,

15

therefore, deny Nika habeas corpus relief with respect to Ground 1F7.

16

Grounds 1F6, 2 and 7D - Guilt Phase Jury Instructions

17

In Ground 2, Nika claims that his federal constitutional rights were violated

18

“because the guilt phase jury instructions failed to require the jury to find all of the

19

mens rea elements of first-degree murder.” See Second Amended Petition (ECF No.

20

73), pp. 102-10. In Ground 7D, Nika claims that his federal constitutional rights were

21

violated because “[t]he malice instructions were unconstitutional.” See id. at 155-57. In

22

Ground 1F6, Nika claims that his federal constitutional rights were violated as a result of

23

ineffective assistance of his trial counsel because counsel failed to object to those

24

instructions. See id. at 80-81.

25

In Claim 2, Nika places at issue the so-called “Kazalyn instruction,” a jury

26

instruction approved by the Nevada Supreme Court in Powell v. State, 108 Nev. 700,

27

838 P.2d 921 (1992), and disapproved by the same court eight years later in Byford v.

28

State, 116 Nev. 215, 994 P.2d 700 (2000). The Kazalyn instruction (so-called because it
78

1

was discussed by the Nevada Supreme Court in Kazalyn v. State, 108 Nev. 67, 825

2

P.2d 578 (1992)), as given in the guilt phase of Nika’s trial, was as follows:

3
4
5
6
7

Premeditation is a design, a determination to kill, distinctly formed
in the mind at any moment before or at the time of the killing.
Premeditation need not be for a day, an hour or even a minute. It
may be as instantaneous as successive thoughts of the mind. For if the
jury believes from the evidence that the act constituting the killing has
been preceded by and has been the result of premeditation, no matter
how rapidly the premeditation is followed by the act constituting the killing,
it is willful, deliberate and premeditated murder.

8

Instructions to the Jury, Petitioner’s Exh. 10, Instruction No. 28 (ECF No. 5,

9

p. 98). Nika argues that this instruction was unconstitutional because it collapsed three

10

elements of first-degree murder—“willful, deliberate and premeditated”—into one

11

element: “premeditated.” See Second Amended Petition (ECF No. 73), pp. 102-10.

12

Nika asserted this claim in his first state habeas action. The Nevada Supreme

13

Court held in that case that Byford represented a change in Nevada’s law, not a

14

clarification of the law, and that the Kazalyn instruction properly reflected the law in

15

cases such as Nika’s, in which the conviction became final before Byford was decided

16

in 2000. See Nika, 124 Nev. at 1276, 1279-89, 198 P.3d at 842, 844-51.

17
18
19
20
21
22
23
24
25
26
27
28

Nika also asserted the claim in his second state habeas action, and, in that case,
the Nevada Supreme Court ruled as follows:
Nika argues that the district court erred in denying his claim that the
premeditation and deliberation instruction was improper. He contends that
this court should reconsider its prior decision on this claim in light of
intervening federal authority. Nika failed to demonstrate circumstances to
warrant departure from the law-of-the-case doctrine. The unpublished and
federal district court decisions he cites calling Nika III, 124 Nev. 1272, 198
P.3d 839, into doubt are not binding on this court. See 9th Cir. R. 36-3(a);
Blanton v. N. Las Vegas Mun. Court, 103 Nev. 623, 633, 748 P.2d 494,
500 (1987), aff’d, 489 U.S. 538 (1989); United States v. Soto-Castelo, 621
F.Supp.2d 1062, 1069 n.2 (D. Nev. 2008), aff’d, 361 F.App’x 782 (9th Cir.
2010); see also SCR 123. Further, the cited decisions are called into
doubt by the Ninth Circuit’s recent decision in Babb v. Lazowsky, 719 F.3d
1019 (9th Cir. 2013), cert. denied, ___ U.S. ___, 134 S.Ct. 526 (2013),
which disapproved of the holding in Polk v. Sandoval, 503 F.3d 903 (9th
Cir. 2007), and noted its effective overruling by Nika III. Babb, 719 F.3d at
2019-30. Nika has not cited any controlling authority that would warrant
reconsideration of this claim.
Order of Affirmance, Respondents’ Exh. 196, pp. 23-24 (ECF No. 125-4, pp. 24-25).
79

1

In Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), which was decided before the

2

Nevada Supreme Court ruled on the appeal in Nika’s first state habeas action, the Ninth

3

Circuit Court of Appeals held that the Kazalyn instruction was unconstitutional because

4

it relieved the State “of its burden of proving every element of first-degree murder

5

beyond a reasonable doubt.” Polk, 503 F.3d at 909. Subsequently, however, in Babb v.

6

Lozowsky, 719 F.3d 1019 (9th Cir. 2013), decided after Nika’s first habeas action was

7

completed, the court determined that its holding in Polk is no longer good law in light of

8

the intervening Nevada Supreme Court decision in Nika’s case. See Babb, 719 F.3d at

9

1029. In light of Babb, and other subsequent decisions of the Ninth Circuit Court of

10

Appeals, it has now become well-established that in cases like this one, in which the

11

conviction became final after the Powell decision but prior to the Byford decision—that

12

is, between 1992 and 2000—the Kazalyn instruction accurately stated Nevada law and

13

did not violate the defendant’s federal constitutional rights. See Babb, 719 F.3d at 1029-

14

30; see also Riley v. McDaniel, 786 F.3d 719 (9th Cir. 2015); Moore v. Helling, 763 F.3d

15

1011 (9th Cir. 2014).

16

The Nevada Supreme Court’s holding that Byford represented a change in

17

Nevada law is a ruling by the state supreme court on a question of state law, not subject

18

to review in this federal habeas corpus action. See Estelle, 502 U.S. at 67-68; Bonin, 59

19

F.3d at 841. Nika’s conviction became final on January 21, 1998, when the Nevada

20

Supreme Court issued its remittitur after affirming his conviction on direct appeal. See

21

Remittitur, Respondents’ Exh. 84 (ECF No. 112-3). That was after Powell and before

22

Byford. Nika’s claim is, therefore, foreclosed by the holding in Babb. The instruction he

23

challenges was not unconstitutional. The Nevada Supreme Court’s ruling on the claim in

24

Ground 2 was not contrary to, or an unreasonable application of, Supreme Court

25

precedent and was not based on an unreasonable determination of the facts in light of

26

the evidence.

27
28

Turning to Ground 1F6, regarding trial counsel’s failure to object to the Kazalyn
instruction, the Nevada Supreme Court ruled, in Nika’s first state habeas action, that
80

1

Nika’s trial counsel had no basis upon which to object to the Kazalyn instruction, as it

2

represented a correct statement of the law at the time of Nika's trial, and, therefore,

3

Nika’s trial counsel was not ineffective, under Strickland. That ruling was not

4

unreasonable.

5

In Ground 2, Nika incudes several other claims, asserting other theories that the

6

Kazalyn instruction violated his constitutional rights: for example, that the instruction

7

violated his constitutional right to equal protection under the law, that the instruction

8

invited arbitrary and capricious application of the death penalty, and that the instruction

9

had the effect of relieving the State of the burden of proof on the question of his state of

10

mind. See Second Amended Petition (ECF No. 73), pp. 104-07. These theories, though,

11

were not asserted in Nika’s first state habeas action. See Second Supplemental Petition

12

for Writ of Habeas Corpus, Respondents’ Exh. 146, pp. 50-54 (ECF No. 119-1, pp. 51-

13

55); Appellant’s Opening Brief, Respondents’ Exh. 152, pp. 36-41 (ECF No. 120-5, pp.

14

55-60). These claims are, therefore, procedurally defaulted, and Nika makes no

15

argument that he can overcome that procedurally default, so they will be denied on that

16

ground. Alternatively, assuming, for the purpose of analysis, that Nika’s arguments in

17

state court did encompass these theories, the Nevada Supreme Court’s denial of the

18

claims was not an unreasonable application of Bunkley v. Florida, 538 U.S. 835 (2003);

19

Schriro v. Summerlin, 542 U.S. 348 (2004); Village of Willowbrook v. Olech, 528 U.S.

20

562 (2000); Stringer v. Black, 503 U.S. 222 (1992); Cleburne v. Cleburne Living Center,

21

473 U.S. 432 (1985); Francis v. Franklin, 471 U.S. 307 (1985); Sandstrom v. Montana,

22

442 U.S. 510 (1979); In re Winship, 397 U.S. 358 (1970); or any other United States

23

Supreme Court precedent cited by Nika.

24
25
26

In Ground 7D, Nika claims that the following jury instructions, regarding “malice”
were unconstitutional:

27

Murder is the unlawful killing of a human being, with malice
aforethought, either express or implied. The unlawful killing may be
effected by any of the various means by which death may be occasioned.

28

*
81

*

*

1
2
3
4
5

NRS 200.020 defines malice, express and implied, as follows:
1. Express malice is that deliberate intention unlawfully to take
away the life of a fellow creature, which is manifested by external
circumstances capable of proof.
2. Malice shall be implied when no considerable provocation
appears, or when all the circumstances of the killing show an abandoned
and malignant heart.

6

Instructions to the Jury, Petitioner’s Exh. 10, Instructions No. 22, 24 (ECF No. 5,

7

pp. 92, 94). Specifically, Nika claims that the second provision of Instruction No. 24

8

(“Malice shall be implied ...”) imposes an impermissible mandatory presumption and

9

renders the instructions unconstitutional. See Second Amended Petition (ECF No. 73),

10

pp. 155-57. And, in Ground 1F6, Nika claims that his trial counsel was ineffective for not

11

objecting to these instructions. See id. at 81.

12

In his first state habeas action, Nika asserted this claim, as well as a claim that

13

his trial counsel was ineffective for not objecting to the malice instructions, and, on the

14

appeal in that action, the Nevada Supreme Court ruled as follows:

15
16
17
18
19
20
21
22
23

Nika contends that the district court erred by dismissing his claim
that trial counsel were ineffective for failing to object to the jury instruction
defining malice, which provided the statutory definitions of express and
implied malice. [Footnote: NRS 200.202.] In particular, Nika asserts that
the instruction inadequately defined malice aforethought and created a
mandatory presumption of implied malice, allowing the jury to find malice
solely on the basis that the jurors believed he was a bad person. We
rejected a similar challenge to this malice instruction in Cordova v. State
and specifically approved its use. [Footnote: 116 Nev. 664, 666-67, 6 P.3d
481, 483 (2000).] Nika acknowledges Cordova but argues that the
decision in that case represents an unreasonable application of federal
constitutional law. However, he advances no persuasive reason to depart
from Cordova, Because Nika failed to show deficient performance or
prejudice, we conclude that the district court did not err by summarily
dismissing this claim.
Nika, 124 Nev. at 1289-90, 198 P.3d at 851.

24

The Nevada Supreme Court’s denial of relief on these claims was reasonable.

25

Both the claim of trial court error and the claim of trial counsel error fail because Nika

26

cannot show that the implied malice instruction had any impact on the outcome of his

27

trial. The jury found Nika guilty of first-degree murder. The instructions given to the jury

28

defined first degree murder as “any kind of willful, deliberate and premeditated killing.”
82

1

Instructions to the Jury, Petitioner’s Exh. 10, Instruction No. 23 (ECF No. 5, pp. 93).

2

Because the jury must have determined that the killing was willful, deliberate, and

3

premeditated, the jury necessarily determined that Nika had the deliberate intention to

4

kill, thus establishing express malice. See Ficklin v. Hatcher, 177 F.3d 1147, 1151 (9th

5

Cir. 1999). Therefore, the Nevada Supreme Court’s ruling on these claims was not

6

contrary to, or an unreasonable application of, Supreme Court precedent and was not

7

based on an unreasonable determination of the facts in light of the evidence.

8
9

The Court will deny Nika habeas corpus relief with respect to Grounds 1F6, 2
and 7D
Ground 4B - Samantha McKendall

10
11

In Ground 4B, Nika claims that his federal constitutional rights were violated

12

because “[t]he State committed misconduct by preventing the defense from calling

13

Samantha McKendall.” See Second Amended Petition (ECF No. 73), pp. 126-27.

14

Nika asserted this claim in his second state habeas action, but not in his first

15

state habeas action, so it is procedurally defaulted, and subject to denial on that ground,

16

unless Nika can make a showing to overcome the procedural default. See Order

17

entered March 16, 2017 (ECF No. 151), p. 9. Nika argues that there is cause for the

18

procedural default, such that it may be overcome, because of the State’s suppression of

19

evidence related to the claim. See id.

20

The evidence proffered by Nika shows that McKendall, who worked with the

21

victim, Smith, at a Reno Burger King restaurant, gave a written statement to the police a

22

few days after Smith was killed. In that statement, McKendall wrote that Smith had

23

mentioned that he had a gun in his car. See Petitioner’s Exh. 28 (ECF No. 7-2).

24

A defense investigator contacted McKendall on December 1, 1994, and, according to a

25

memorandum written by the investigator to trial counsel, McKendall told the investigator

26

the following:

27
28

McKendall [stated] that Smith told her of his weapon, a 44 caliber
the night before his death. The conversation resulted from her interest in
whether he was afraid to travel back and forth at night. McKendall
83

1
2

indicated that his was the only time she spoke with Smith about the
weapon, and that she never saw it. Although McKendall believes Smith
stated he had a 44, she is not positive. She is sure Smith said it was a
“forty something Caliber.”

3

Petitioner’s Exh. 121 (ECF No. 36-2, p. 12.) In that memorandum, the investigator wrote

4

an address and three telephone numbers for McKendall. See id. On June 7, 1995, the

5

defense investigator attempted to contact McKendall at her last-known workplace, the

6

Burger King restaurant where she worked with Smith, to serve a subpoena on her, and

7

he wrote the following about that attempt:

8
9
10
11
12
13
14

I was advised by Kim Uffman, Mgr., that Samantha no longer works
there, and is in California, whereabouts unknown. According to Uffman,
she has been trying to contact McKendall in California for the last week.
Uffman also stated that McKendall’s parents don’t know how to contact
McKendall either, and have contacted her seeking information with which
to contact her. Uffman took my card and stated that if she is in contact
with McKendall, she will give her a message to contact me.
On the same date, I telephoned Affordable Bus & Coach ... and
spoke with Mrs. McKendall, Samantha’s mother. Mrs. McKendall indicated
that Samantha has been in California and is expected back in Reno on
6-8-95.

17

Mrs. McKendall indicated that she is not [at] liberty to inform me of
how Samantha can be located, but stated that Cindy Wyett, DA
Investigator has been advised of information with which to contact
Samantha McKendall. Mrs. McKendall took my name and phone number
and stated that she would ask [Samantha] to contact me upon her return
to Reno.

18

Id. (ECF No. 36-2, p. 29). Also, Nika states in his petition that the defense was provided

19

a pager number for McKendall. See Second Amended Petition (ECF No. 73), p. 127

20

(“Though the investigator was eventually provided with Ms. McKendall’s pager number

21

....”). Then, in a declaration signed by McKendall on June 16, 2009, she states:

15
16

22
23
24
25
26
27
28

At the time of the trial, I was living in California. They paid me to
come back to Reno to testify. I remember the trip vividly because at one
point or another during the trip, all four of my tires went flat. They paid for
me to stay in Reno for a week, but I never ended up testifying because
they told me that the person who killed Smitty had received diplomatic
immunity. I did not know exactly what that meant, but my impression was
they never even had a trial in his case.
Declaration of Samantha McKendall, Petitioner’s Exh. 88, ¶ 4 (ECF No. 22-5, p. 2).
With this factual background, Nika’s argument that he can overcome the
procedural default, because of suppression of evidence by the State, is as follows:
84

1
2
3
4
5
6
7
8
9

Nika can overcome the alleged procedural default of this claim
based on the State’s suppression of the evidence. Strickler v. Greene, 527
U.S. 263, 282 (1999). Nika has demonstrated good cause under Strickler
and Banks based on the State’s failure to disclose McKendall’s knowledge
about the victim’s gun and its active suppression of her whereabouts when
it knew Nika’s lawyer and investigator were looking for her. Nika has also
demonstrated that he was prejudiced by this suppression: if the jury had
heard McKendall’s testimony, it would have supported Nika’s claim that
the victim provoked the incident that lead to his death, or at least that the
victim was the one who originally produced the gun during the altercation.
Reply (ECF No. 169), p. 269.
The Court determines that Nika has not shown cause and prejudice, such as to
overcome the procedural default. Nika does not make any allegation as to why

10

McKendall could not be found, and her declaration obtained, before 2009, and in time to

11

assert a claim such as this in his first state habeas action. Nika makes no allegation that

12

the State hindered Nika from locating McKendall between the time of the trial and the

13

conclusion of his first state habeas action in 2008. To demonstrate cause for a

14

procedural default, the petitioner must “show that some objective factor external to the

15

defense impeded” his efforts to comply with the state procedural rule.” Murray, 477 U.S.

16

at 488; McCleskey, 499 U.S. at 497. Nika does not make such a showing. Ground 4B

17

will be denied on the ground of procedural default.

18

Nika requests discovery and an evidentiary hearing regarding Ground 4B. See

19

Motion for Discovery (ECF No. 166), pp. 40-47; Motion for Discovery (ECF No. 168),

20

pp. 6-7. However, neither the discovery nor the evidentiary hearing that Nika seeks with

21

respect to this claim is related to the issue of the procedural default. Neither would have

22

any effect on the Court’s denial of the claim on procedural default grounds. The

23

requests for discovery and an evidentiary hearing regarding this claim will be denied.

24
25

Ground 9A - Prosecution Arguments
In Ground 9A, Nika claims that the prosecutor made improper arguments in

26

closing argument in both the guilt phase and penalty phase of his trial, and that his trial

27

counsel was ineffective for failing to object to those arguments. See Second Amended

28

Petition (ECF No. 73), pp. 162-64. In particular, Nika claims that, in the guilt phase of
85

1

his trial, the prosecutor made arguments disparaging his trial counsel, and, in the

2

penalty phase of his trial, the prosecutor made arguments asking the jury to send a

3

message to the community, minimizing the jury’s responsibility for the verdict, and

4

shifting the burden of proof. See id.

5

Nika raised these claims in state court for the first time in his second state

6

habeas action. The claims were ruled procedurally barred in that action. The Nevada

7

Supreme Court rejected Nika’s argument that he could show cause and prejudice to

8

overcome the procedural bars on account of ineffective assistance on his direct appeal

9

and in his first state habeas action:

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Nika contends that the district court erred in denying his claim that
post-conviction counsel were ineffective for failing to claim that trial and
appellate counsel were ineffective for failing to argue that the State
committed prosecutorial misconduct during its arguments. We conclude
these arguments lack merit for the reasons discussed below.
*

*

*

Nika argues that post-conviction counsel should have raised a
claim that trial counsel were ineffective in failing to object when the
prosecutor disparaged defense counsel in stating that the defense
“doesn’t know the significance of the evidence,” made mistakes in
assessing the evidence, and made numerous suppositions. We disagree.
Although a prosecutor may not “disparage defense counsel or legitimate
defense tactics,” Browning v. State, 124 Nev. 517, 534, 188 P.3d 60, 72
(2008); see Butler v. State, 120 Nev. 879, 898, 102 P.3d 71, 84 (2004),
the prosecutor merely responded to arguments made and inferences
drawn by the defense concerning the facts in evidence and were therefore
not objectionable. Because the comments were not objectionable, postconviction counsel could not have used them as a basis to challenge trial
or appellate counsel’s effectiveness. Epps v. State, 901 F.2d 1481, 1483
(9th Cir. 1990).
*

*

*

Nika argues that post-conviction counsel should have claimed that
trial counsel were ineffective in failing to object when the prosecutor asked
the jury to vote for death to send a message to the community. We
disagree. “[A] prosecutor in a death penalty case properly may ask the
jury, through its verdict, to set a standard or make a statement to the
community.” Williams v. State, 113 Nev. 1008, 1020, 945 P.2d 438, 445
(1997), overruled on other grounds by Byford v. State, 116 Nev. 215, 994
P.2d 700 (2000). As the comment was not objectionable, it could not be
the basis for a claim of ineffective assistance of trial, appellate, or postconviction counsel. Epps, 901 F.2d at 1483. Therefore, the district court
did not err in denying this claim.
86

*

1
2
3
4
5
6
7

*

*

Nika argues that post-conviction counsel should have claimed that
trial counsel were ineffective in failing to object to comments he contends
shifted the burden of proof and implied that the jurors were not personally
responsible for the verdict. However, the comments about which Nika
complains were fair responses to defense arguments. Because the
comments were not objectionable, they could not form the basis for an
ineffective assistance of trial, appellate, or post-conviction counsel. Id.
Therefore, the district court did not err in denying this claim.
Order of Affirmance, Respondents’ Exh. 196, pp. 16-18 (ECF No. 125-4, pp. 17-19).
A prosecutor’s improper remarks render a conviction unconstitutional if they so

8

infect the trial with unfairness as to make the resulting conviction a denial of due

9

process. Parker v. Matthews, 567 U.S. 45, 48 (2012) (per curiam); see also Darden v.

10

Wainwright, 477 U.S. 168, 181 (1986); Comer v. Schriro, 480 F.3d 960, 988 (9th Cir.

11

2007). The ultimate question is whether the alleged misconduct rendered the trial

12

fundamentally unfair. Darden, 477 U.S. at 183. In determining whether a prosecutor’s

13

arguments rendered a trial fundamentally unfair, a court must judge the remarks in the

14

context of the entire trial. See Boyde v. California, 494 U.S. 370, 385 (1990); Darden,

15

477 U.S. at 179-82. In considering the effect of improper prosecutorial argument, the

16

court considers whether the trial court instructed the jury that its decision is to be based

17

solely upon the evidence, whether the trial court instructed the jury that counsel’s

18

remarks are not evidence, whether the defense objected, whether the comments were

19

“invited” by the defense, and whether there was overwhelming evidence of guilt. See

20

Darden, 477 U.S. at 182.

21

Regarding the substantive claims of prosecutorial misconduct in Ground 9A—the

22

claims that Nika’s constitutional rights were violated by the prosecution arguments—

23

those claims are subject to the procedural default doctrine, and Nika has not made any

24

showing to overcome the procedural default. See Reply (ECF No. 169), pp. 269-74.

25

Those claims in Ground 9A will be denied on procedural default grounds.

26

Regarding the claims of ineffective assistance of trial counsel in Ground 9A—the

27

claims that trial counsel was ineffective for failing to object to the alleged improper

28

prosecution arguments—Martinez offers a possible means of overcoming the
87

1

procedural default of those claims, but this Court finds that Nika does not meet the

2

standard set by Martinez to allow consideration of the claims on their merits. This Court

3

finds that, in large part, the arguments Nika complains of were not improper, and were,

4

at any rate, invited by arguments made by defense counsel. Furthermore, the

5

arguments, considered individually and cumulatively, and in the context of the entire

6

trial, were not such as to approach the threshold set in Darden and Parker. The

7

arguments that Nika complains of did not render his trial unfair. Nika’s trial counsel were

8

not ineffective for failing to object to the prosecution arguments, and Nika’s first post-

9

conviction counsel were not ineffective for failing to make these claims of ineffective

10

assistance of trial counsel. The ineffective assistance of trial counsel claims in Ground

11

9A will be denied on procedural default grounds.

12
13

Grounds 1A, 1B and 1H—Other Claims Regarding Trial Counsel
In Ground 1A, Nika claims that his federal constitutional rights were violated as a

14

result of ineffective assistance of his trial counsel because “[t]he county contract under

15

which trial counsel were paid created a conflict of interest that prevented trial counsel

16

from performing effectively.” See Second Amended Petition (ECF No. 73), pp. 10-13.

17

Nika raised this claim for the first time in state court in his second state habeas

18

action. The Nevada Supreme Court ruled the claim to be procedurally barred, and ruled,

19

as follows, that Nika did not show ineffective assistance of his first post-conviction

20

counsel, such as to overcome the procedural bar under state law:

21
22
23
24
25
26
27
28

Nika argues that the district court erred in denying his claim that
post-conviction counsel were ineffective for failing to discover a conflict of
interest based on defense counsel’s reimbursement contract. He alleges
that the contract created a conflict of interest because it pitted the
appointed attorney’s interest in compensation against the need to spend
funds on investigative services for the client, and that had this conflict not
existed, trial counsel would have hired a mental health expert to evaluate
Nika and testify at the penalty hearing. As discussed above, Nika failed to
demonstrate a reasonable probability that the evidence developed by the
mental health expert would have altered the outcome of the penalty
hearing. Thus, Nika also failed to meet the prejudice prong of his postconviction-counsel claim.
Order of Affirmance, Respondents’ Exh. 196, p. 6 (ECF No. 125-4, p. 7).
88

1

This Court finds that Nika has not shown that his first post-conviction counsel

2

were ineffective, within the meaning of Martinez, for failing to assert this claim. Nika has

3

not made allegations sufficient to show that any conflict of interest adversely affected

4

his trial counsel’s performance. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); see

5

also Earp v. Ornoski, 431 F.3d 1158, 1184 (9th Cir. 2005). Nika’s claim regarding the

6

effect of the terms of the contract between the county and Jack Alian on the

7

performance of trial counsel, Ohlson and Fox, are purely speculative. As Nika’s

8

allegations, regarding the contract under which Ohlson and Fox worked, and its effect

9

on their representation of Nika, falls short of showing a conflict that affected their work,

10

Nika does not show that his first post-conviction counsel were ineffective for not raising

11

this claim, such as to overcome the procedural default. Ground 1A will be denied on

12

procedural default grounds.

13

Nika seeks to conduct discovery regarding Ground 1A. See Motion for Discovery

14

(ECF No. 166), pp. 8-14. However, as the Court finds this claim to be insubstantial,

15

there is no showing of good cause for the discovery he seeks. The motion for leave to

16

conduct discovery regarding this claim will be denied.

17

In Ground 1B, Nika claims that his federal constitutional rights were violated as a

18

result of ineffective assistance of his trial counsel because “[t]rial counsel were

19

ineffective for failing to investigate and present compelling evidence of Mr. Nika’s

20

background, culture, and life history.” See Second Amended Petition (ECF No. 73), pp.

21

13-53. The Court will deny this claim because it is repetitive of other, more specific,

22

claims in Nika’s second amended petition, most notably, claims in Grounds 1C, 1F1, 1G

23

and 6. In considering the other claims asserted in Nika’s second amended petition,

24

including the claims in Grounds 1C, 1F1, 1G and 6, the Court takes into consideration

25

the allegations in Ground 1B.

26

Nika requests discovery and an evidentiary hearing regarding Ground 1B. See

27

Motion for Discovery (ECF No. 166), pp. 14-24; Motion for Evidentiary Hearing (ECF

28

No. 168), p. 5. However, because the Court finds that this claim is redundant of other,
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more specific claims, asserted by Nika, the Court denies this request and considers his

2

requests for discovery and an evidentiary hearing in conjunction with the other claims,

3

as is discussed above.

4

In Ground 1H, Nika claims that his federal constitutional rights were violated as a

5

result of ineffective assistance of his trial counsel because “[t]rial counsel were

6

ineffective throughout the trial proceedings.” See Second Amended Petition (ECF No.

7

73), pp. 95-99. In this ground, Nika includes claims that his trial counsel were

8

ineffective: for “refusing to engage in plea discussions with the State” and for “failure to

9

communicate the potential of a plea bargain” to Nika, for advising Nika to waive his right

10

to allocution, for “failing to adequately litigate the issue of Mr. Nika’s lack of criminal

11

history,” for “failing to request instructions explaining to the jury that the prior bad act

12

evidence had to be proven beyond a reasonable doubt, that it could not be considered

13

in support of any of the aggravators, and that it could only be considered once the jury

14

had determined that the statutory aggravators outweighed the mitigators,” for

15

ineffectively cross-examining the victim’s wife and daughter, for failing to object to

16

improper jury instructions, for presenting ineffective closing argument in the penalty

17

phase of the trial, and for failing to object to improper arguments of the prosecutor in

18

closing argument in the penalty phase of the trial. See id.

19

The Court finds that the claims in Ground 1H are, to some extent, repetitive of

20

other claims made elsewhere in Nika’s second amended petition and discussed above,

21

and are asserted in a pro forma manner and unsupported by any evidence proffered by

22

Nika. Moreover, to the extent they are subject to the procedural default doctrine, Nika

23

has made no showing that his first post-conviction counsel were ineffective in not

24

asserting these claims. Ground 1H will be denied.

25

Ground 14 - Nevada’s Lethal Injection Protocol

26

In Ground 14, Nika claims that his death sentence is in violation of the federal

27

constitution “because Nevada’s lethal injection scheme constitutes cruel and unusual

28

punishment.” See Second Amended Petition (ECF No. 73), pp. 179-96. As the Court
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understands Claim 14, Nika asserts that lethal injection, conducted in the manner in

2

which Nevada authorities intend to conduct it in Nika’s case, would be unconstitutional.

3

See id.

4

Such a challenge to Nevada’s protocol for carrying out a death sentence is not

5

cognizable in this federal habeas corpus action. In Nelson v. Campbell, 541 U.S. 637

6

(2004), a state prisoner sentenced to death filed a civil rights action, under 42 U.S.C.

7

§ 1983, alleging that the state’s proposed use of a certain procedure, not mandated by

8

state law, to access his veins during a lethal injection would constitute cruel and

9

unusual punishment. The Supreme Court reversed the lower courts’ ruling that the claim

10

sounded in habeas corpus and could not be brought as a Section 1983 action. The

11

Supreme Court ruled that Section 1983 was an appropriate vehicle for the prisoner to

12

challenge the lethal injection procedure prescribed by state officials. Nelson, 541 U.S. at

13

645. The Court stated that the prisoner’s suit challenging “a particular means of

14

effectuating a sentence of death does not directly call into question the ‘fact’ or ‘validity’

15

of the sentence itself [because by altering the lethal injection procedure] the State can

16

go forward with the sentence.” Id. at 644. In Hill v. McDonough, 547 U.S. 573 (2006),

17

the Court reaffirmed the principles articulated in Nelson, ruling that an as-applied

18

challenge to lethal injection was properly brought by means of a Section 1983 action.

19

Hill, 547 U.S. at 580-83.

20

Nelson and Hill suggest that a Section 1983 claim is the more appropriate vehicle

21

for such a challenge to a method of execution. See also Glossip v. Gross, 135 S.Ct.

22

2726, 2738 (2015) (“In Hill, the issue was whether a challenge to a method of execution

23

must be brought by means of an application for a writ of habeas corpus or a civil action

24

under § 1983. We held that a method-of-execution claim must be brought under § 1983

25

because such a claim does not attack the validity of the prisoner’s conviction or death

26

sentence.” (citations to Hill omitted)); Beardslee v. Woodford, 395 F.3d 1064, 1068-69

27

(9th Cir. 2005) (holding that claim that California’s lethal injection protocol violated

28

Eighth Amendment “is more properly considered as a ‘conditions of confinement’
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challenge, which is cognizable under § 1983, than as a challenge that would implicate

2

the legality of his sentence, and thus be appropriate for federal habeas review”).

3

Given the amount of time that passes before a death sentence is carried out, it is

4

certainly possible—perhaps likely—that a state’s execution protocol will change

5

between the time when a death sentence is imposed and the time when it is carried out.

6

See, e.g., Reply (ECF No. 169), pp. 277-78 (explaining that Nevada’s lethal injection

7

protocol changed between the filing of Nika’s second amended habeas petition, and the

8

filing of his reply to Respondents’ answer). Habeas corpus law and procedure have not

9

developed and are unsuited to adjudicate the constitutionality of an execution protocol

10

that may change after a court imposes the death sentence. The Court concludes that a

11

challenge to a state’s execution protocol is not a challenge to the constitutionality of the

12

petitioner’s custody or sentence. See 28 U.S.C. § 2254. A challenge to a state’s

13

execution protocol is more akin to a suit challenging the conditions of custody, which

14

must be brought as a civil rights action under 42 U.S.C. § 1983. Therefore, Ground 14

15

will be denied as not cognizable in this federal habeas corpus action.

16
17

Grounds 7H and 13—Cumulative Error Claims
Grounds 7H and 13 of Nika’s petition are cumulative error claims, that is, they

18

are claims that incorporate other claims, and assert that, considered cumulatively, the

19

errors alleged in Nika’s other claims warrant federal habeas corpus relief. See Second

20

Amended Petition (ECF No. 73), pp. 159, 177-78. Ground 7H is a cumulative error claim

21

regarding Nika’s claims of instructional error, and Ground 13 is a cumulative error claim

22

regarding all Nika’s other claims. See id.

23
24

The Court denies Nika relief with respect to Grounds 7H and 13, per se, as the
Court does not understand these to be viable stand-alone claims.

25

Furthermore, with respect to Ground 7H, the claim of cumulative error concerning

26

Nika’s various claims of instructional error, the Court found instructional error as claimed

27

by Nika in only Ground 7B; therefore, there are not multiple instances of instructional

28

error to consider cumulatively.
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And, with respect to Ground 13, Nika’s claim of cumulative error covering all his

2

claims, the Court finds constitutional error as alleged by Nika in Grounds 1G, 6 and 7B,

3

and has considered the effect of those errors cumulatively, as is discussed above.

4

Nika’s Motions for Leave to Conduct Discovery and for an Evidentiary Hearing

5

Nika has filed a motion for leave to conduct discovery (ECF No. 166) and a

6
7

motion for an evidentiary hearing (ECF No. 168).
Respondents oppose both motions on the ground that they are similar to motions

8

for leave to conduct discovery and for an evidentiary hearing that Nika filed in

9

conjunction with his opposition to a motion to dismiss. See Opposition to Motion for

10

Leave to Conduct Discovery and Motion for Evidentiary Hearing (ECF No. 172). That

11

argument in opposition to Nika’s motions is without merit. The March 16, 2017, order

12

stated explicitly that the motions for leave to conduct discovery and for an evidentiary

13

hearing were denied without prejudice to Nika requesting discovery or an evidentiary

14

hearing at the appropriate time in conjunction with the further briefing of the merits of his

15

remaining claims. See Order entered March 16, 2017 (ECF No. 151), p. 13; see also

16

Scheduling Order entered June 18, 2015 (ECF No. 68).

17

In his motion for leave to conduct discovery, Nika requests leave of court to

18

conduct discovery with respect to Grounds 1A, 1B, 1C, 1F1, 1F2, 1G, 4A, 4B, 5 and 9B.

19

See Motion for Discovery (ECF No. 166). A habeas petitioner does not have a

20

presumptive right to discovery; rather discovery is available in a habeas action, in the

21

discretion of the court, if good cause is shown. See Bracy v. Gramley, 520 U.S. 899

22

(1997); Smith v. Mahoney, 611 F.3d 978, 996-97 (9th Cir. 2010); Rich v. Calderon, 187

23

F.3d 1064, 1068 (9th Cir. 1999) (as amended) (“discovery is available only in the

24

discretion of the court and for good cause shown”); see also Rule 6 of the Rules

25

Governing Section 2254 Cases in the United States District Courts. As is discussed

26

above, the Court denies relief on Grounds 1A, 1B, 1C, 1F1, 1F2, 4A, 4B, 5 and 9B, and

27

finds there is no showing of good cause for discovery as to those claims. And, regarding

28

Ground 1G, the Court grants Nika relief on that claim without need for further factual
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development. Therefore, the Court will deny Nika’s motion for leave to conduct

2

discovery.

3

In his motion for evidentiary hearing, Nika appears to request an evidentiary

4

hearing regarding Grounds 1B, 1C, 1F1, 1G, 4B, 6 and 9B. See Motion for Evidentiary

5

Hearing (ECF No. 168). The general standard for holding an evidentiary hearing in a

6

federal habeas action is governed by 28 U.S.C. § 2254:

7
8
9
10
11
12
13
14
15
16

If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that—
(A) the claim relies on—
(1) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously
unavailable; or
(2) a factual predicate that could not have been
previously discovered through the exercise of
due diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.

17

28 U.S.C. § 2254(e)(2). Evidentiary hearings are not authorized for claims adjudicated

18

on the merits in the state court. Pinholster, 563 U.S. at 183-84. The court denies relief

19

on Grounds 1B, 1C, 1F1, 4B, 6 and 9B, and, as is discussed above, determines that an

20

evidentiary hearing is not warranted with respect to any of those claims. The Court

21

grants relief relative to Ground 1G without need for an evidentiary hearing. The Court

22

will, therefore, deny Nika’s motion for an evidentiary hearing.

23

Certificate of Appealability

24

The standard for the issuance of a certificate of appealability requires a

25

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c). The

26

Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:

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28

Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district
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1
2
3
4
5

court’s assessment of the constitutional claims debatable or wrong. The
issue becomes somewhat more complicated where, as here, the district
court dismisses the petition based on procedural grounds. We hold as
follows: When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim, a
COA should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.

6

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074,

7

1077-79 (9th Cir. 2000).

8

The Court finds that, with respect to the claims on which the Court denies Nika

9

relief, applying the standard articulated in Slack, a certificate of appealability is

10

warranted with respect to Grounds 1C, 3, 4A and 5. The Court will grant Nika a

11

certificate of appealability with regard to those claims. With regard to the remainder of

12

the claims on which the Court denies Nika relief, the Court will deny him a certificate of

13

appealability.

14

Conclusion

15

IT IS THEREFORE ORDERED that the Petitioner’s Second Amended Petition for

16

Writ of Habeas Corpus (ECF No. 73) is GRANTED IN PART AND DENIED IN PART.

17

Petitioner is granted relief relative to the penalty phase of his trial, as described below,

18

with respect to his claims in Grounds 1G, 6 (the ineffective assistance of trial counsel

19

claim in Ground 6, as to the penalty phase of his trial), and 7B. Petitioner is denied relief

20

on all other claims in his second amended habeas petition.

21

IT IS FURTHER ORDERED that Respondents shall either (1) within 60 days

22

from the date of this order, vacate Petitioner’s death sentence and impose upon him a

23

non-capital sentence, consistent with law, or (2) within 60 days from the date of this

24

order, file a notice of the State’s intent to grant Petitioner a new penalty-phase trial, and,

25

within 180 days from the date of this order, commence jury selection in the new penalty-

26

phase trial.

27
28

IT IS FURTHER ORDERED that Petitioner’s Motion for Discovery (ECF No. 166)
and Motion for Evidentiary Hearing (ECF No. 168) are DENIED.
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IT IS FURTHER ORDERED that Petitioner is granted a certificate of appealability

2

with respect to his claims in Grounds 1C, 3, 4A and 5 of his Second Amended Petition

3

for Writ of Habeas Corpus (ECF No. 73). With respect to all other claims in Nika’s

4

second amended habeas petition on which the Court denies relief, the Court denies a

5

certificate of appealability.

6

IT IS FURTHER ORDERED that the judgment in this action will be stayed pending

7

the conclusion of any appellate or certiorari review in the Ninth Circuit Court of Appeals

8

or the United States Supreme Court, or the expiration of the time for seeking such

9

appellate or certiorari review, whichever occurs later.

10
11
12

IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter
judgment accordingly.
IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure

13

25(d), the Clerk of the Court shall, on the docket for this case, substitute William Gittere

14

for Timothy Filson, as the respondent warden, and Aaron Ford for Adam Laxalt, as the

15

respondent Nevada Attorney General.

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17

June 12, day of
DATED THIS ___2019. ______________________, 2019.

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19
20

JAMES C. MAHAN,
UNITED STATES DISTRICT JUDGE

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