Voss v. Cox et al

Filing 64

ORDER DISMISSING CASE. Petitioner has submitted a declaration of election to dismiss petition 63 . IT IS THEREFORE ORDERED that this action is DISMISSED without prejudice. The clerk of the court shall enter judgment accordingly.IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Larry R. Hicks on 1/10/2012. (Copies have been distributed pursuant to the NEF - MLC)

1
2
3
4
5

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7
8
9

STEVEN FLOYD VOSS,

10

Petitioner,

11

vs.

12

Case No. 3:11-CV-00223-LRH-(WGC)

GREG COX, et al.

13

ORDER

Respondents.

14
15
16
17

Petitioner has submitted a declaration of election to dismiss petition (#63). The court will
dismiss this action.
Earlier, the court dismissed ground 1(d) on the merits. Order (#16). Petitioner was

18

convicted of first-degree murder with the use of a deadly weapon. Petitioner received a sentence for

19

first-degree murder, and he received an equal and consecutive sentence for the use of a deadly

20

weapon, as required by the deadly-weapon enhancement statute in effect at the time. On appeal, the

21

Nevada Supreme Court vacated the sentence for the use of a deadly weapon because insufficient

22

evidence was presented to prove that petitioner used a deadly weapon in the commission of murder.

23

Petitioner claimed in ground 1(d) that the sentence for murder also should have been vacated. The

24

court determined that the relief that petitioner received on direct appeal was the correct relief, and

25

that ground 1(d) was without merit. Order, pp. 1-2 (#16). Later, the court noted that under Nevada

26

law, the use of a deadly weapon is an enhancement, not an element of the crime of first-degree

27

murder. Order, p. 3 (#46) (citing Williams v. State, 671 P.2d 635, 636 (Nev. 1983)). Reasonable

28

1

jurists would not find this conclusion to be debatable or wrong, and the court will not issue a

2

certificate of appealability.

3
4

IT IS THEREFORE ORDERED that this action is DISMISSED without prejudice. The
clerk of the court shall enter judgment accordingly.

5

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

6

DATED this 10th day of January, 2012.

7
8
9

_________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-