Opinion
19-99007
09-15-2022
AVRAM VINETO NIKA, Petitioner-Appellant, v. WILLIAM GITTERE; AARON D. FORD, Respondents-Appellees.
NOT FOR PUBLICATION
Argued and Submitted March 17, 2022 Pasadena, California
Appeal from the United States District Court No. 3:09-cv-00178-JCM-WGC for the District of Nevada James C. Mahan, District Judge, Presiding
Before: WARDLAW, PAEZ, and M. SMITH, Circuit Judges.
MEMORANDUM [*]
In 1995, Avram Nika, a national of Serbia, was convicted of the first-degree murder of Edward Smith on a lonely stretch of highway east of Reno, Nevada. After lengthy state post-conviction proceedings, the federal district court vacated his death sentence. The State of Nevada has not challenged that decision. However, the district court denied Nika's petition as to the guilt phase of his trial.
The predecessor state to Serbia was Yugoslavia, and the Yugoslavian embassy provided consular services to Serbians until 1996. For simplicity's sake, we refer to Nika and the consulate involved in his case as Serbian.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Reviewing de novo, Kipp v. Davis, 971 F.3d 939, 948 (9th Cir. 2020), we affirm.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs Nika's petition because it was filed after April 24, 1996. AEDPA deference is required for claims "adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d). A federal court may grant a state prisoner's habeas petition only if the state court's adjudication: "(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 (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." Id.
1. The district court correctly determined that the Nevada Supreme Court's ("NSC") approval of the jury instructions given at Nika's trial was not contrary to or an unreasonable application of clearly established Supreme Court precedent.
The Kazalyn murder instruction given at Nika's trial did not violate the Supreme Court's prohibition against vagueness. See Kazalyn v. State, 108 Nev. 67, 75 (1992) (approving of first-degree murder instruction used in this case). At the time of Nika's trial, Nevada defined first degree murder as including "willful, deliberate and premeditated killing." Nev. Rev. Stat. § 200.030. The Kazalyn instruction allowed the jury to conclude that a murder was willful, deliberate, and premeditated if it found premeditation. In Nika v. State, 124 Nev. 1272, 1282-83 (2009) ("Nika III"), the NSC held that this instruction accurately stated Nevada law at the time of Nika's trial-that Nevada law then required only a finding of premeditation, and not all three mental states.
It is not entirely clear that Nika can overcome the procedural hurdles to adjudication of this claim on the merits. Because we may deny a claim on the merits even if the petitioner has failed to exhaust state remedies, we do not reach that question. See 28 U.S.C. § 2254(b)(2); Padilla v. Terhune, 309 F.3d 614, 62021 (9th Cir. 2002).
Nika argues that this instruction violated the prohibition against vagueness in Kolender v. Lawson, 461 U.S. 352, 358 (1983), because it rendered first- and second-degree murder indistinguishable. But the two instructions were not identical. At trial, the judge instructed the jury that "Murder of the First Degree is murder which is any kind of willful, deliberate, and premediated killing. Murder of the Second Degree is all other kinds of murder." Nevada has long held that "intentional homicide without premeditation is, in the absence of legally cognizable provocation or mitigating circumstances, murder in the second degree." Hern v. State, 97 Nev. 529, 532 (1981). Thus, even reading the instructions at Nika's trial through the lens of Nika III, first- and second-degree murder were different: first-degree murder was premeditated murder, while second-degree murder was intentional murder without premeditation.
To the extent that Nika argues that, in fact, the statute rendered first- and second-degree murder identical, see Powell v. State, 108 Nev. 700, 709, (1994) (holding that "[t]he trilogy of terms [willfulness, deliberation, and premeditation] connotes the same general idea-the intention to kill"), that error was not prejudicial where the instructions given differentiated between the two. Constitutional errors do not warrant habeas relief except where they are prejudicial or structural, Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993), and Nika cites no cases where we have found that vagueness errors are structural in the habeas context.
Nika's other challenges to the Kazalyn instruction are similarly unsuccessful. We cannot retroactively apply Byford v. State, 116 Nev. 215 (2000), because the retroactivity doctrine recognized in Teague v. Lane, 489 U.S. 288 (1989), is limited to new rules announced by the Supreme Court. See Whorton v. Bockting, 549 U.S. 406, 416 (2007) ("In Teague and subsequent cases, we have laid out the framework to be used in determining whether a rule announced in one of our opinions should be applied retroactively to judgments in criminal cases that are already final on direct review.") (emphasis added). Nika cites no clearly established law requiring a state court to retroactively apply new state court interpretations of a statute on collateral review. We therefore reject his contention that Byford should be applied retroactively.
Additionally, Nika's subterfuge argument fails. Even if Nika is correct that this portion of the claim is exhausted, we reject on the merits the contention that the NSC attempted to shield itself from federal due process review through subterfuge. While the NSC's rulings on the Kazalyn instruction have been complex, and although Nika III did announce a change in the elements of the homicide statute, Nika has not cited authority that supports his assertion that the NSC's conduct here constitutes one of the "rare occasions" that would allow a federal court to disregard a state-court interpretation of state law based on subterfuge. See Mullaney v. Wilbur, 421 U.S. 684, 691 n.11 (1975).
Finally, Nika's argument that the Kazalyn instruction unconstitutionally shifts the burden of proof is meritless. When Nika was convicted, first-degree murder required only a finding of willfulness. Thus, the Kazalyn instruction given in his case properly reflected what the State was required to prove.
2. Nika's challenge to the "at random" aggravator is unripe. A dispute is not ripe for adjudication when it "rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Pierce v. Ducey, 965 F.3d 1085, 1090 (9th Cir. 2020) (citations and quotations omitted). Nika's claim depends upon contingent events that may not occur: it is unclear whether Nevada will hold a second penalty trial in this case, and if so, whether it will again allege the "at random" aggravator. See Ben-Sholom v. Ayers, 674 F.3d 1095, 1097 n.2 (9th Cir. 2012) (declining to reach as premature a challenge to death penalty statute because appellant was "not currently subject to a death sentence and has yet to be re-sentenced") (citing Richmond v. Ricketts, 774 F.2d 957, 960 (9th Cir. 1985)). Additionally, Nika is incorrect that a ruling by the court in his favor would constitute an "acquittal." Bullington v. Missouri, 451 U.S. 430 (1981) and Poland v. Arizona, 476 U.S. 147 (1986) on which he relies are inapposite. Cf. Harrison v. Gillespie, 640 F.3d 888, 900 (9th Cir. 2011) (en banc) (holding that the "verdict" in a Nevada capital sentencing trial is the decision to impose a particular sentence, and that a jury's finding as to the presence or absence of aggravating factors is a "preliminary conclusion" that does not constitute the verdict); Sechrest v. Ignacio, 549 F.3d 789, 817 n.16 (9th Cir. 2008) (declining to consider claims pertaining to testimony during penalty phase after vacating penalty).
3. The district court correctly found that the NSC's affirmance of the admission of Nika's statement to Officer Villardita was not based upon an unreasonable determination of the facts. The district court also correctly found that the NSC's affirmance of the admission of Nika's statement to Deputy Villa was not contrary to or an unreasonable application of Supreme Court precedent.
Nika challenges the admission of his first statement to Officer Villardita as contrary to Miranda v. Arizona, 384 U.S. 436, 444 (1966). He alleges that the holding that his waiver of his Miranda rights was voluntary, knowing, and intelligent was based upon an unreasonable determination of the facts because he was not proficient in English. A waiver satisfies this standard if the "totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension." Moran v. Burbine, 475 U.S. 412, 421 (1986) (citation and quotations omitted). We ask whether Nika has demonstrated that the factual findings underlying the state court's decision were unreasonable. 28 U.S.C. § 2254(d)(2); see Kipp, 971 F.3d at 953 n.12.
The trial court found Villardita's testimony about the waiver to be credible. The court considered Villardita's testimony that he read each of the rights on the waiver form to Nika and that Nika appeared to understand those rights and that he verbally waived each of them. The court also found that Nika was being "evasive" in his recorded conversation with another law enforcement officer, and it noted that this was consistent with Villardita's account that Nika had provided multiple, conflicting versions to him about what occurred in Reno.
The reasonableness of this determination is a close call. Nika's language expert testified that his ability to comprehend English was "very low," and that the language in the Miranda waiver form would be difficult for him to understand. Additionally, the trial court determined that Nika required an interpreter during court proceedings, reversed this decision, and then required an interpreter during the trial. Mindful of the extreme deference required under AEDPA, however, we affirm the district court's ruling that this factual determination was reasonable.
Nika also challenges the admission of his statement to Deputy Villa during a jailhouse interrogation. The use of this statement ran contrary to clearly established Supreme Court precedent. Rhode Island v. Innis held that interrogation extends "to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." 446 U.S. 291, 301 (1980). An "incriminating response" is "any response-whether inculpatory or exculpatory-that the prosecution may seek to introduce at trial." Id. n.5 (emphasis in original). Pennsylvania v. Muniz created the "routine booking exception" to this rule: the answers to "questions to secure the biographical data necessary to complete booking or pretrial services" are admissible where they were "requested for record-keeping purposes only." 496 U.S. 582, 601 (1990) (citation and quotations omitted). But "recognizing a booking exception to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions." Id. n.14 (citations and quotations omitted).
"Have you ever assaulted or battered anyone?" is reasonably likely to elicit an incriminatory response from a suspect. The test for this, as stated in Innis, is whether the prosecution may seek to introduce the response at trial-which the prosecutor did in this case. The Supreme Court in Muniz determined that "name, address, height, weight, eye color, date of birth, and current age" questions were exempted under the routine booking question. 496 U.S. at 600. "Have you committed the crime with which you are charged?" does not fall into this category-even if the jail would, understandably, like to know that information.
Reading Muniz otherwise would allow the State to ask a person in custody any question during the booking process without Miranda warnings, report the answer to the prosecution, and then use the statement at trial by claiming that the question was not "designed" to elicit an incriminating response. This would render Muniz's holding that "recognizing a booking exception to Miranda does not mean, of course, that any question asked during the booking process falls within that exception" toothless.
However, this error was harmless under Brecht v. Abrahamson, 507 U.S. 619, 629 (1993). At closing argument, the prosecution discussed the testimony of passersby placing Nika at the scene of the crime; Nika's statement to Detective Villardita; photographs of Smith; the statement of Nathaniel Wilson; physical evidence at the scene, including layout of the vehicle and a dropped lighter; Smith's blood on Nika's clothing; and an autopsy of Smith. Absent this statement, the prosecution would still have had a strong case, involving at least one confession and substantial physical evidence.
Nika also contends that his trial counsel was ineffective in litigating the motion to suppress. He admits that this claim is procedurally defaulted, but contends that he can overcome this default under Martinez v. Ryan, 566 U.S. 1 (2012). Unfortunately, because the evidence upon which this argument relies was introduced in federal court only, it is foreclosed by Shinn v. Ramirez, 142 S.Ct. 1718, 1734 (2022).
4. The district court correctly determined that the utilization of a jailhouse informant was not contrary to clearly established Supreme Court precedent.
Nika argues that the State violated Massiah v. United States, 377 U.S. 201 (1964) because it enlisted jailhouse witness Wilson as its agent to gather inculpatory statements from Nika in violation of his Sixth Amendment right to counsel. Nika also argues that the State's failure to disclose an implicit agreement with Wilson to cooperate in exchange for a favorable sentence in his pending criminal case violated Brady v. Maryland, 373 U.S. 83 (1963). Finally, Nika contends that because the prosecutor knew that Wilson had expressed a desire for consideration in exchange for his testimony, the State's failure to correct Wilson's testimony at trial about his motivations for coming forward violated Napue v. Illinois, 360 U.S. 264 (1959).
These claims turn upon a declaration by Wilson that states "I know I got probation because I was helping them out on Avram's case." The district court did not cite this declaration, and the State objects to its consideration here. We cannot consider evidence that was not before the state court when considering any question adjudicated on the merits in state court. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). But the declaration was properly before the state court and appears to have simply been disregarded in an organizational error.
On June 10 and 11, 2002, the state trial court held an evidentiary hearing on whether an arrangement existed between Wilson and the prosecution. Nika's counsel attempted to call Wilson to speak, but could not do so because California held Wilson in lockdown at the Santa Rita Jail in Alameda County. Instead, Nika's counsel brought to the hearing this written statement from Wilson and asked to file the statement in connection with a motion to reconsider a previous order. At the end of that hearing, the judge marked the statement as an exhibit "to make a record in connection with the motion to reconsider the outcome of the evidentiary hearing. But it was not intended as an exhibit in this hearing. . ." Thus, the declaration was accepted for filing with the motion to reconsider. No written motion to reconsider appears in the record. However, four lines later in the June 11, 2002 transcript of the hearing, the judge said: "Your motion to reconsider is denied." It appears from the transcript, therefore, that the "motion to reconsider" was a perfunctory oral motion that the trial judge summarily dispensed with. Nonetheless, it is also clear from the transcript that the trial judge did intend to include Wilson's declaration in the record, and therefore accepted it for filing.
However, any constitutional error relating to Wilson's testimony was harmless. As discussed above, even without Wilson's testimony, the State could have presented Nika's confession to Villardita and significant physical evidence.
Nika also contends, in an uncertified claim, that the State's ex parte contacts with the trial court violated clearly established Supreme Court law. However, we conclude that Nika has not made the "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), required to obtain a certificate of appealability ("COA"). See Buck v. Davis, 137 S.Ct. 759, 772 (2017). Nika cites
5. Nika also presents two uncertified claims: that trial counsel rendered ineffective assistance of counsel ("IAC") by failing to contact the Serbian consulate and by failing to present a self-defense or heat of passion defense. The district court correctly determined that the NSC's denial of these claims was not contrary to or an unreasonable application of clearly established Supreme Court precedent. The State did not appeal the district court's determination that Martinez excused Nika's default of these claims.
We grant Nika a COA on these claims because the district court granted Nika a COA on other portions of his IAC claim. See Browning v. Baker, 875 F.3d 444, 471 (9th Cir. 2017) (holding that it was erroneous to certify only portions of a broader IAC claim because a COA is granted based on a substantial showing of the denial of a constitutional right in toto).
Nika asserts that the new evidence that he presented in federal court fundamentally altered this claim such that it is unexhausted, procedurally defaulted, and subject to de novo review. This argument is also foreclosed by Shinn, 142 S.Ct. at 1734.
The State did not appeal the district court's determination that trial counsel's failure to contact the consulate constituted deficient performance. The only question before the panel on this claim, therefore, is whether this deficient performance was prejudicial. We affirm the district court's determination that it was not. Amicus curiae strenuously argues that Nika's counsel could have done to In re Murchison, 349 U.S. 133 (1955); however, that case concerned a judge who participated in the accusatory process, which Nika's trial judge did not do. We therefore decline to issue a COA. substantially more to prepare his case had counsel been able to communicate with him effectively. While these arguments are compelling, Nika runs up against an immutable fact: he told his counsel that he did not shoot Smith. At a postconviction evidentiary hearing, Nika's trial attorney testified that Nika "insisted" throughout the time he represented Nika that he did not kill Smith and that presenting a self-defense case would have contradicted Nika's story. Trial counsel testified that the testimony of the tow truck driver who saw multiple people at the scene supported this theory. Trial counsel believed that Nika would have made "a terrible and not credible witness," so he advised Nika not to testify. He stated that Nika often changed the details of his story, and that cross-examination of Nika would have been "brutal." The other trial lawyer testified that Nika never wavered from his assertions that he did not kill Smith. Additionally, Nika's wife testified that when she visited Nika during the pre-trial period, Nika told her that he did not kill Smith. Thus, we agree with the district court's finding that Nika's trial counsel's failure to contact the Serbian consulate was not prejudicial at the guilt phase and therefore the NSC's denial of his claim was not contrary to or an unreasonable application of clearly established Supreme Court law.
The remaining claim for failure to present self-defense and heat of passion defenses is unsuccessful for similar reasons. Presenting such a defense would have required Nika to testify, as there were no other witnesses, which counsel reasonably judged to be a nonstarter. Moreover, by testifying, Nika would have been subject to impeachment with all of the contradictory statements that he had made, including the statements he made to Villardita shortly after his arrest, and the admissions he made to Wilson. Nika's proposed explanation for this- members of his cultural group routinely lie-would not have boosted his credibility on the stand. Finally, the physical evidence-notably the wound showing that Smith was shot with the gun placed against his forehead-belied the self-defense story that Nika now puts forth. Nika III, 198 P.3d at 853. We therefore affirm the district court's ruling that Nika's trial counsel's failure to present an alternate defense was not contrary to or an unreasonable application of clearly established Supreme Court law.
Nika's trial was not a masterclass in effective lawyering. Nonetheless, for the reasons given above, we affirm the district court's denial of habeas corpus as to the guilt phase of his trial.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.