Richard Allan MORAN, Petitioner-Appellant, v. E.K. McDANIEL, Warden, Respondent-Appellee

concurring separately.

Given the present state of the case law and the procedural posture of this case, it appears that there is an absence of any legally viable ground on which to base a stay.

OVERVIEW

Richard Allan Moran has been sentenced to death. The Nevada Supreme Court dismissed, on state procedural grounds, his second state petition for post-conviction relief. The United States District Court for the District of Nevada then denied Moran’s second federal habeas corpus petition and his application for a stay of execution. The district court denied the habeas petition on the grounds that federal review was barred by the state court’s dismissal of Moran’s federal constitutional claims on independent and adequate state grounds, and because Moran’s petition was an abuse of the writ.

The district court issued a certificate of probable cause to permit Moran to appeal to this court. He has done so, and asks us to stay his execution now scheduled for 12:01 a.m. on March 30,1996.

We have jurisdiction under 28 U.S.C. § 1291 . We affirm the district court’s denial of Moran’s habeas corpus petition and deny his application for a stay of execution.

I

PROCEDURAL BACKGROUND

On August 2,1984, Moran entered the Red Pearl Saloon and shot and killed the bartender and a patron. Moran then stole the cash register, the bartender’s purse, and racks of money that, he had…

80 F.3d 1261 96 Cal. Daily Op. Serv. 2298 , 96 Daily Journal D.A.R. 3660 Richard Allan MORAN, Petitioner-Appellant, v. E.K. McDANIEL, Warden, Respondent-Appellee. No. 96-99007. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 27, 1996. Decided March 28, 1996. Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding. Michael Pescetta, Federal Public Defender, Las Vegas, NV, for Richard Allan Moran. David Sarnowski, Deputy Attorney General, Criminal Justice Division, Carson City, NV, for E.K. McDaniel. Before: FARRIS, PREGERSON and THOMPSON, Circuit Judges. OPINION DAVID R. THOMPSON, Circuit Judge. OVERVIEW 1 Richard Allan Moran has been sentenced to death. The Nevada Supreme Court dismissed, on state procedural grounds, his second state petition for post-conviction relief. The United States District Court for the District of Nevada then denied Moran's second federal habeas corpus petition and his application for a stay of execution. The district court denied the habeas petition on the grounds that federal review was barred by the state court's dismissal of Moran's federal constitutional claims on…