Nika (Avram) v. Warden (Death Penalty-Pc) ( 2014 )

 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.'
iNika also asserts that the failure to present mitigating evidence in
the first petition was not his fault. NRS 34.726(1) as requires "a petitioner
[to] show that an impediment external to the defense prevented him or her
from complying with the state procedural default rules." Hathaway v.
State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003). This language
contemplates that the delay in filing a petition must be caused by a
circumstance not within the control of the defense team as a whole, not
solely the defendant. Considering the nature and purpose of legal
representation, we conclude that Nika's view that NRS 34.726(1)
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Ineffective 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. 2 Id. 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 post-
conviction counsel meets the first prong of the good cause showing
required by NRS 34326(1). The question then is whether the district
court erred in concluding that Nika failed to demonstrate that post-
conviction 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,
...continued
contemplates only delay personally caused by a petitioner is untenable.
Therefore, the district court did not err in rejecting this claim of good
cause.
2 1nhis brief, Nika cites Martinez v. Ryan, 566 U.S. , 132 S. Ct.
1309 (2012), in support of his contention that the ineffectiveness of post-
conviction counsel denied him a full and fair opportunity to litigate his
prior petition. We need not address Martinez in this case because under
our case law Nika was entitled to the effective assistance of post-
conviction counsel because that counsel was appointed pursuant to a
statutory mandate. See Crump v. Warden, 113 Nev. at 303, 934 P.2d at
253.
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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 also Crump, 113 Nev. at 304, 934 P.2d at 254 (indicating
that Strickland test 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 Strickland test 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
3 Nika asserts that the district court applied the incorrect standard
for reviewing his claims of ineffective assistance of post-conviction and
trial counsel. As we conclude that Nika's claims are not meritorious under
the correct standard, even assuming the district court applied an incorrect
standard, he is not entitled to relief. See Wyatt v. State, 86 Nev. 294, 298,
468 P.2d 338, 341 (1970) (holding that a correct result will not be reversed
simply because it is based on the wrong reason).
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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—at
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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.
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.
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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 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)
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(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.
Failure to conduct adequate voir dire
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 4 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
4Batson v. Kentucky, 476 U.S. 79 (1986).
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dire. He asserts that if post-conviction counsel had raised these claims
concerning voir dire as trial-counsel 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, Nika failed to
demonstrate prejudice because he failed to show that the seated jury was
not impartia1. 5 See Wesley v. State, 112 Nev. 503, 511, 916 P.2d 793, 799
5 Nikaonly 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
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
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(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 counsels' 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
...continued
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.
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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.").
Failure to refute evidence of first-degree murder
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
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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
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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 post-
conviction counsel were ineffective for failing to introduce it during his
prior post-conviction proceedings.
Failure to ensure all bench conferences are recorded
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.
Decision to waive spousal privilege
Nika argues that the district court erred in denying his claim
that post-conviction counsel were ineffective for not challenging trial
counsels' 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-
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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.
Failure to challenge venue
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 post-
conviction 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 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
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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. 6
Failure to show a benefit to Wilson
Nika contends that the district court erred in denying his
claim that post-conviction counsel were ineffective for failing to
demonstrate that trial counsel were ineffective for failing to prove that
Nathaniel Wilson, who testified that Nika confessed details of the murder
while they were incarcerated in the Washoe County Jail, received a benefit
for his testimony. In his claim below, Nika asserted that Wilson's
sentencing hearing proves that Wilson received a benefit for his testimony.
We conclude that Nika failed to demonstrate that post-conviction counsel
GNika also argues that the district court erred in denying a claim
that his conviction and sentence are invalid due to the influence of pretrial
publicity as an abuse of the writ. He asserts that he claimed that
counsels' ineffective assistance constituted good cause to raise the claim in
a subsequent petition. As we conclude that Nika failed to demonstrate
that the pretrial publicity was so pernicious as to have warranted a
change in venue, he failed to demonstrate deficiency or that he was
prejudiced by counsels' failure to address the publicity.
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was ineffective. In evaluating his first petition, we concluded that he
failed to demonstrate that Wilson acted as an agent of the State when he
obtained incriminating statements because he did not show that Wilson
received any benefit for his testimony. Nika v. State (Nika II), 120 Nev.
600, 609, 97 P.3d 1140, 1146 (2004). Nika does not point to any evidence
that post-conviction counsel failed to develop in litigating the claim in his
first petition. Therefore, the district court did not err in denying this
claim.
Improper opening arguments
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.
Failure to object to prosecutorial misconduct
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
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State committed prosecutorial misconduct during its arguments. We
conclude these arguments lack merit for the reasons discussed below.
Disparaging counsel
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, post-conviction 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 (8th Cir. 1990).
Send a message
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. "[Al 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 a 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 post-
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conviction counsel. Epps, 901 F.2d at 1483. Therefore, the district court
did not err in denying this claim.
Jury's responsibility
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.
Failure to litigate trial counsel's ineffectiveness during the
penalty phase of trial
Nika argues that the district court erred in denying his claim
that post-conviction counsel were ineffective for failing to adequately
litigate trial counsels' ineffectiveness during the penalty phase of trial. He
contends that trial counsel were ineffective for failing to point out his lack
of criminal history, advising him to waive his right to allocution, failing to
adequately cross-examine the victim's wife and daughter, failing to object
to improper jury instructions, and making inappropriate closing
arguments.
We conclude that these arguments lack merit. First, Nika
cannot demonstrate that evidence of his lack of criminal convictions would
be sufficiently persuasive to alter the outcome of the proceeding,
considering evidence that he threatened people with violence, committed
violence against family members, and engaged in a sexual assault.
Second, the district court advised Nika of his right to make a statement in
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allocution and, consistent with counsel's advice, he chose to remain silent.
Third, Nika failed to demonstrate that trial counsel were ineffective with
respect to the cross-examination of the victim's family about whether the
victim carried a firearm in his car or became angered easily by mechanical
problems. The victim's wife had already testified during the guilt phase
that the victim did not own a firearm. Further, considering the calculated
nature of the killing, pursuing testimony that the victim had a weapon or
provoked the incident would have been fruitless. Moreover, given that the
defense closing argument stressed the morality of imposing the death
penalty, Nika cannot demonstrate that his trial counsels' decision to elicit
testimony that the victim himself was a kind and forgiving person was not
part of a reasonable trial strategy. See Foster v. State, 121 Nev. 165, 170,
111 P.3d 1083, 1087 (2005) (recognizing that reasonable strategic
decisions are "[Airtually unchallengeable absent extraordinary
circumstances" (internal quotation marks omitted)). In addition, the
remaining claims that trial counsel were ineffective for advising Nika to
waive allocution, failing to object to jury instructions, and making
improper closing arguments were raised and decided in a previous post-
conviction proceeding. Further consideration of them is thus barred by
the law-of-the-case doctrine. See Hall v. State, 91 Nev. 314, 315-16, 535
P.2d 797, 798-99 (1975). Nika's desire to have the errors considered in a
cumulative error analysis is not a sufficient ground to avoid the law-of-
the-case doctrine. Tien Fu Hsu v. Cnty. of Clark, 123 Nev. 625, 630, 173
P.3d 724, 729 (2007) (recognizing grounds for avoiding the law-of-the-case
doctrine); see also In re Reno, 283 P.3d 1181, 1224, 1250 (Cal. 2012). As
this court found no error regarding the failure to object to penalty phase
jury instructions, see Nika v. State (Nika III), 124 Nev. 1272, 1293-97, 198
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P.3d 839, 853-56 (2008), those claims may not be cumulated. See Reno,
283 P.3d at 1224 ("[C]laims previously rejected on their substantive
merits—i.e., this court found no legal error—cannot logically be used to
support a cumulative error claim because we have already found there
was no error to cumulate.") Therefore, the district court did not err in
denying these post-conviction-counsel claims.
Failure to engage Serbian consulate
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
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the penalty hearing. Therefore, the district court did not err in denying
this post-conviction-counsel claim.?
Failure to cumulatively consider the State's misconduct
Nika contends that the district court erred in denying his
petition because it failed to consider, cumulatively, challenges to the jury
instructions, counsels' inappropriate closing arguments, the State's use of
a jailhouse informant in violation of Massiah v. United States, 377 U.S.
201 (1964), the failure to disclose exculpatory evidence, the failure to
correct false testimony, collusion with the trial judge to violate his rights
under Massiah, violation of his Miranda8 rights, and improper actions
during voir dire. We disagree. Nika bases his assertion on cases that
require courts to consider the cumulative impact of violations of Brady v.
Maryland, 373 U.S. 83 (1963), e.g., Jimenez v. State, 112 Nev. 610, 623,
918 P.2d 687, 695 (1996); Jackson v. Brown, 513 F.3d 1057, 1071, 1076
(9th Cir. 2008); Castleberry v. Brigano, 349 F.3d 286, 291-92 (6th Cir.
2003). This court found no violation of Nika's rights under Miranda. See
Nika I, 113 Nev. at 1438-39, 951 P.2d at 1056-57. It further concluded
that Nika failed to demonstrate prejudice from counsel's failure to raise a
claim under Massiah, Nika II, 120 Nev. at 611, 97 P.3d at 1148, and that
Nika failed to demonstrate that his counsel were ineffective for failing to
7 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.
8Miranda v. Arizona, 384 U.S. 436 (1966).
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address error regarding jury instructions and error regarding closing
arguments. See Nika III, 124 Nev. at 1289-90, 1292-93, 198 P.3d at 851-
52, 853. Therefore, those claims may not be cumulated. See Reno, 283
P.3d at 1224 ("[C]laims previously rejected on their substantive merits-
i.e., this court found no legal error—cannot logically be used to support a
cumulative error claim because we have already found there was no error
to cumulate."). Nika has cited no authority that requires this court to
consider the cumulative effect of previously rejected or otherwise defaulted
claims. Therefore, he has not demonstrated good cause to overcome the
procedural bars or to avoid the law-of-the-case doctrine.
Law-of-the-case doctrine
Nika argues that the district court erred in denying several of
his claims as barred by the law-of-the-case doctrine. "When an appellate
court states a principle or rule of law necessary to a decision, the principle
or rule becomes the law of the case and must be followed throughout its
subsequent progress, both in the lower court and upon subsequent
appeal." Wickliffe v. Sunrise Hosp. Inc., 104 Nev. 777, 780, 766 P.2d 1322,
1324 (1988). We have the "discretion to revisit the wisdom of [our] legal
conclusions when [we] determine[ ] that further discussion is warranted,"
Pellegrini v. State, 117 Nev. 860, 885, 34 P.3d 519, 535-36 (2001), and may
"depart from our prior holdings only where we determine that they are so
clearly erroneous that continued adherence to them would work a
manifest injustice," Tien Fit Hsu, 123 Nev. at 631, 173 P.3d at 729
(quoting Clem v. State, 119 Nev. 615, 620, 81 P.3d 521, 525 (2003)).
Prejudice review
Nika contends that the district court erred in denying claims
challenging the effective assistance of appellate counsel, the at-random-
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and-without-apparent-motive aggravating circumstance, invalid jury
instructions, and the lethal injection protocol as barred by the law-of-the-
case doctrine because it could not perform an effective prejudice review
without considering the previously denied claims. We disagree. Nika does
not cite any authority decided since the prior decisions in his case that
warrants a departure from the doctrine. See id. at 630, 173 P.3d at 729
(noting that federal courts have adopted exception to law-of-the-case
doctrine when there has been an intervening change in controlling law).
He also has not alleged that the prior decisions are clearly erroneous. See
id. at 631, 173 P.3d at 729. His assertion that these claims need to be
reconsidered in order to evaluate the impact of other claims that are not
barred is not a recognized ground to avoid the law-of-the-case doctrine.
See Reno, 283 P.3d at 1224, 1250.
Premeditation instruction
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), affd, 489 U.S. 538 (1989); United States v.
Soto-Castelo, 621 F. Supp. 2d 1062, 1069 n.2 (D. Nev. 2008), affd, 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.
Lozowsky, 719 F.3d 1019 (9th Cir. 2013), cert. denied, U .S. , 134 S.
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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
Babb, 719 F.3d at 1029-30. Nika has not cited any controlling authority
that would warrant reconsideration of this claim.
Weighing instruction
Nika argues that the district court erred in denying his claim
that the trial court erred in failing to instruct the jury that the weighing of
aggravating circumstances and mitigating circumstances must be beyond
a reasonable doubt. He contends that this claim is not barred by the law-
of-the-case doctrine because it was not raised in any prior proceeding. If it
was not raised in a prior proceeding, the claim is procedurally defaulted
under NRS 34.810. And Nika cannot demonstrate prejudice to overcome
the procedural default because this court recently held in Nunnery v.
State, 127 Nev. , 263 P.3d 235, 241, 250-53 (2011), that the
weighing of aggravating and mitigating circumstances "is not a factual
finding that is susceptible to the beyond-a-reasonable-doubt standard of
proof," id. at , 263 P.3d at 250, and therefore is not subject to Apprendi
v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584
(2002). Therefore, the district court reached the correct result. See Wyatt
v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970) (noting that this court
will affirm the judgment of the district court if it reached the correct result
for the wrong reason).
Closing arguments and jury instructions
Nika contends that the district court erred in denying his
claims that trial counsel were ineffective for making inappropriate closing
arguments and not objecting to jury instructions during the guilt phase of
trial. He concedes that post-conviction counsel raised these claims in his
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first post-conviction petition but asserts that the claims should be
considered with his remaining claims to assess their cumulative
prejudicial effect. We conclude that Nika's argument lacks merit. The
aforementioned claims were raised and decided in a previous post-
conviction proceeding. Further consideration of the claims is thus barred
by the law-of-the-case doctrine. See Hall v. State, 91 Nev. 314, 315-16, 535
P.2d 797, 798-99 (1975). Nika's desire to have the errors considered in a
cumulative error analysis is not a sufficient ground to avoid the law-of-
the-case doctrine. Tien Fu Hsu, 123 Nev. at 630, 173 P.3d at 729
(recognizing grounds for avoiding the law-of-the-case doctrine). Further,
as this court found no error regarding the failure to object to penalty phase
jury instructions, see Nika III, 124 Nev. at 1293-94, 198 P.3d at 854-56,
those claims may not be cumulated. See Reno, 283 P.3d at 1224.
Fundamental miscarriage of justice
Nika contends that the failure to engage the consulate
amounted to a fundamental miscarriage of justice because he is actually
innocent of the death penalty. He asserts that the consulate would have
assisted in presenting additional mitigation evidence. A fundamental
miscarriage of justice requires "a colorable showing" that the petitioner is
"actually innocent of the crime or is ineligible for the death penalty"
Pellegrini, 117 Nev. at 887, 34 P.3d at 537. When claiming a fundamental
miscarriage of justice based on ineligibility for the death penalty, the
petitioner "must show by clear and convincing evidence that, but for the
constitutional error, no reasonable juror would have found him death
eligible." Pellegrini, 117 Nev. at 887, 34 P.3d at 537. Even assuming that
new mitigation evidence previously omitted due to constitutional error
could provide a basis for an actual innocence claim, but see Sawyer v.
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Whitley, 505 U.S. 333, 345-47 (1992), we are not convinced that Nika
demonstrated "by clear and convincing evidence that, but for a
constitutional error, no reasonable juror would have found him death
eligible," Pellegrini, 117 Nev. at 887, 34 P.3d at 537. Therefore, the
district court did not err by dismissing this claim.
Having considered Nika's contentions and concluding that
they lack merit, we
ORDER the judgment of the district court AFFIRMED.
Gibbons
J. /0L
Pickering Hardesty
J.
Cherry —Saitta
cc: Hon. Patrick Wanagan, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Washoe County District Attorney
Freshfields Bruckhaus Deringer US LLP
Nathalie Huynh
Washoe District Court Clerk
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