Leonard Winfrey v. E. McDaniel

MEMORANDUM

Petition'er-Appellant Leonard Arthur Winfrey appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction for one count of conspiracy to commit murder and two counts of murder with a deadly weapon. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

I.

Winfrey argues that the trial court’s jury instructions on aiding and abetting liability violated his federal right to due process of law by failing to set forth the specific intent element required under state law. All of the claims raised in Winfrey’s second state habeas petition— those that were new and those that were previously presented — were untimely and subject to the State of Nevada’s laches defense. We have previously concluded that the Nevada Supreme Court has consistently applied its procedural rules prohibiting the review of an untimely post-conviction petition absent a petitioner’s showing of cause and prejudice. Loveland v. Hatcher, 231 F.3d 640, 642-43 (9th Cir.2000); Moran v. McDaniel, 80 F.3d 1261, 1268-70 (9th Cir.1996). We therefore conclude that the Nevada Supreme Court clearly and expressly relied on independent and adequate state…