Jimmy Neuschafer v. Harol Whitley, Warden, Nevada State Prison, and Brian McKay Attorney General of the State of Nevada

concurring:

I concur in Judge Kennedy’s opinion affirming after the remand. I still adhere to the proposition in my original dissent that the notes or “kites,” the contents of which were before us, were enough for affirmance on round one.

The appellant Neuschafer seeks a writ of habeas corpus from the United States courts after the Nevada judicial system has reviewed and affirmed his conviction and sentence. Neuschafer v. State, 101 Nev. 331 , 705 P.2d 609 (1985). Neuschafer killed a prison inmate and was convicted of first degree murder with aggravating circumstances as defined by Nevada law. He received the death sentence. Neuschafer’s crime was committed while he was serving two life sentences for the rape and first degree murder of two young women. The United States District Court for the District of Nevada denied Neuschafer’s petition for writ of habeas corpus, and after we heard oral argument on appeal from that decision, we issued an order of limited remand to the district court for further findings. Neuschafer v. McKay, 807 F.2d 839 (9th Cir.1987). The district court held an evidentiary hearing and made further specific findings of fact and conclusions of law, and we have reconsidered the appeal upon further oral argument. We now reject petitioner’s constitutional arguments and affirm denial of the writ by the district court.

Neuschafer’s first argument, and the one that led us to remand the case for…

816 F.2d 1390 Jimmy NEUSCHAFER, Petitioner-Appellant, v. Harol WHITLEY, Warden, Nevada State Prison, and Brian McKay, Attorney General of the State of Nevada, Respondents-Appellees. No. 86-1909. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 14, 1987. Decided May 11, 1987. N. Patrick Flanagan, III, Reno, Nev., for petitioner-appellant. Brian Randall Hutchins, Carson City, Nev., for respondents-appellees. Appeal from the United States District Court for the District of Nevada. Before CHAMBERS, KENNEDY and HALL, Circuit Judges. KENNEDY, Circuit Judge: 1 The appellant Neuschafer seeks a writ of habeas corpus from the United States courts after the Nevada judicial system has reviewed and affirmed his conviction and sentence. Neuschafer v. State, 101 Nev. 331 , 705 P.2d 609 (1985). Neuschafer killed a prison inmate and was convicted of first degree murder with aggravating circumstances as defined by Nevada law. He received the death sentence. Neuschafer's crime was committed while he was serving two life sentences for the rape and first degree murder of two young women. The United States District Court for the District of Nevada denied Neuschafer's petition…