Habeas corpus ordered for murder case

The Nevada Supreme Court on Thursday said a Reno judge was wrong to summarily dismiss a habeas corpus petition filed by death row inmate Avram Nika.

Nika was convicted in the shooting death of Edward Smith along Interstate 80 east of Reno in August 1994 and sentenced to death.

Part of the problem in his case, the high court ruled, was caused by the Supreme Court itself when it ordered a hearing into whether Nika received effective legal assistance at the same time the defendant's direct appeal of his conviction was pending.

According to Thursday's opinion, which was signed by all but two members of the court, the simultaneous litigation of both the direct appeal and the challenge of his legal defense put Nika and his lawyer 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," the opinion states. "However, in the (habeas) proceeding, they found themselves defending their own conduct of the trial against challenges by Nika."

The result, according to the opinion, denied Nika a full and fair hearing of his claims he should get a new trial.

In addition, the court ruled that the trial judge's order summarily denying Nika's claims was defective.

"The district court's order contained no specific findings of fact or conclusions of law supporting its dismissal of the claims," the opinion states - adding that it violates requirements of Nevada law which requires specific findings of fact to support such a ruling.

Two justices - Deborah Agosti and Mark Gibbons - dissented. They said Nika wasn't prejudiced by the simultaneous nature of the habeas and appellate cases and did have a full, fair chance to raise his arguments.

And they said Nika presented no specifics as to what viable claims were neglected.

"Taken as a whole, the facts of the instant case indicate that Nika has not shown good cause or prejudice," they concluded.

But the majority opinion authored by Justice Bob Rose sends the case back to district court for a hearing on Nika's claims of ineffective counsel.

Contact Geoff Dornan at nevadaappeal@sbcglobal.net or 687-8750.