Nika v. Baker

• Decision Date: 30 July 2014
• Docket Number: No. 59776,59776
• Citation: Nika v. Baker, No. 59776 (Nev. Jul 30, 2014)
• Parties: AVRAM VINETO NIKA, Appellant, v. RENEE BAKER, WARDEN; AND CATHERINE CORTEZ MASTO, ATTORNEY GENERAL OF THE STATE OF NEVADA, Respondents,
• Court: Nevada Supreme Court

AVRAM VINETO NIKA, Appellant, v. RENEE BAKER, WARDEN; AND CATHERINE CORTEZ MASTO,ATTORNEY GENERAL OF THE STATE OF NEVADA, Respondents,

No. 59776

SUPREME COURT OF THE STATE OF NEVADA

JULY 30, 2014

An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.SCR 123.

ORDER OF AFFIRMANCE

This is an appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus in a death penalty case.Second Judicial District Court, Washoe County; Patrick Flanagan, Judge.

In 1994, Avram Nika bludgeoned and shot to death Edward Smith after Smith had stopped to assist Nika on I-80, 20 miles outside of Reno, Nevada.A jury convicted Nika of first-degree murder with the use of a deadly weapon and sentenced him to death.This court affirmed the conviction and sentence.Nika v. State, (Nika I), 113 Nev. 1424, 951 P.2d 1047(1997), overruled in part byLeslie v. Warden, 118 Nev. 773, 780 & n.17, 59 P.3d 440, 445 & n.17(2002).Nika unsuccessfully sought postconviction relief in a prior petition.Nika v. State (Nika III), 124 Nev. 1272, 198 P.3d 839(2008);Nika v. State (Nika II), 120 Nev. 600, 97 P.3d 1140(2004).In this appeal from the denial of his second post-conviction petition for a writ of habeas corpus, Nika claims that the district court erred in denying his petition as procedurally barred and barred by the law-of-the-case doctrine.He further contends that even if he cannot demonstrate good cause and prejudice to overcome the procedural bars,the district court erred by denying his petition because the failure to consider it on the merits resulted in a fundamental miscarriage of justice.Procedural bars

Nika's post-conviction petition for a writ of habeas corpus is subject to several procedural bars.First, to the extent that Nika alleged trial error, those claims were appropriate for direct appeal and thus subject to dismissal for waiver pursuant to NRS 34.810(1)(b)(2).Second, the petition was untimely as it was filed on April 22, 2010, which is more than one year after this court issued its remittitur on direct appeal in 1998.NRS 34.726(1).Third, to the extent that the petition raised claims that were not raised in the first post-conviction petition, the second petition constituted an abuse of the writ and to the extent that the petition raised the same claims that were raised in the first petition, the second petition was successive.NRS 34.810(2).To overcome these procedural bars, Nika had to demonstrate good cause and prejudice.NRS 34.726(1);NRS 34.810(1)(b), (3).

As cause to overcome the procedural default rules, Nika advances several arguments: his post-conviction counsel were ineffective, and the district court failed to cumulatively consider the State's misconduct.¹Ineffective assistance of post-conviction counsel

Where the appointment of post-conviction counsel is mandated by statute, the petitioner has a right to effective assistance of that counsel.Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253(1997).Thus, the ineffective assistance of post-conviction counsel may establish good cause and, if it has merit, prejudice to overcome the procedural defaults under NRS 34.810.²Id. at 304-05, 934 P.2d at 253-54.As Nika filed his petition within a reasonable time after this court affirmed the district court's order denying his prior petition, his claim of ineffective assistance of postconviction counsel meets the first prong of the good cause showing required by NRS 34.726(1).The question then is whether the district court erred in concluding that Nika failed to demonstrate that postconviction counsel provided ineffective assistance in failing to raise various claims in the first petition or in failing to adequately litigate certain claims that were raised in the first petition.

"A claim of ineffective assistance of counsel presents a mixed question of law and fact, subject to independent review,"Evans v. State,117 Nev. 609, 622, 28 P.3d 498, 508(2001), but the district court's purely factual findings are entitled to deference, Lara v. State, 120 Nev. 177, 179, 87 P.3d 528, 530(2004).Under the two-part test established by the United States Supreme Court in Strickland v. Washington, a defendant must show that counsel's performance (1) fell below an objective standard of reasonableness and (2) resulted in prejudice.466 U.S. 668, 687-88, 694(1984);Kirksey v. State, 112 Nev. 980, 987-88, 998, 923 P.2d 1102, 1107, 1114(1996);see alsoCrump, 113 Nev. at 304, 934 P.2d at 254(indicating that Stricklandtest applies to effective assistance of post-conviction counsel appointed pursuant to statutory mandate)."The defendant carries the affirmative burden of establishing prejudice."Riley v. State, 110 Nev, 638, 646, 878 P.2d 272, 278(1994).A court need not consider both prongs of the Stricklandtest if a defendant makes an insufficient showing on either prong.Strickland, 466 U.S. at 697.With regard to his claims of ineffective assistance of post-conviction counsel, Nika must demonstrate that his post-conviction counsels' performance were deficient and that, had the omitted claims been raised or the claims litigated in a different fashion, he would have been granted relief.We conclude that Nika did not demonstrate that he was entitled to relief for the reasons discussed below.³

Popularly elected judges

Nika argues that the district court erred in denying his claim that post-conviction counsel were ineffective for not challenging his conviction and death sentence as invalid because his proceedings were conducted before elected judges as an abuse of the writ.He contends that the district court's conclusion that the claim could have been brought sooner ignored his claim of ineffective assistance of all prior counsel as good cause.However, he failed to substantiate his claim with portions of the record from his trial that demonstrated bias against him based on the fact that the district judge was popularly elected and he was found guilty and sentenced to death by a jury, not the judge.Because his allegations are insufficient to establish a meritorious trial- or appellate-counsel claim, the district court did not err in denying this post-conviction-counsel claim.

Failure to introduce mitigation evidence

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 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—atleast 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.

Failure to investigate county contract and conflict of interest

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 post-conviction-counsel claim.

Failure to litigate motion to suppress Nika's confessions

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 were not ineffective for failing to litigate this claim of ineffective assistance of trial counsel in an effective manner.

We conclude that Nika failed...