Cox

MEMORANDUM **

On Cox’s second direct appeal to the Nevada Supreme Court, he alleged in a supplemental pro se brief submitted on October 26, 1995, claims that would later become Grounds 3 and 4 of his federal habeas petition: that the state violated Brady by performing an inadequate crime scene investigation and that the trial court erred in barring him from eliciting evidence of Wilson’s character and criminal record. In its April 24, 1997, dismissal of this appeal, the Nevada Supreme Court stated:

Because in this April 24, 1997, dismissal the Nevada Supreme Court actually considered and rejected Cox’s pro per claims on the merits, the Nevada Supreme Court’s April 10, 1998, determination that “Appellant waived these claims by failing to raise them on direct appeal” is plainly in error. Assuming that Nevada’s waiver rule generally constitutes an adequate and independent state procedural default barring federal review, clear and convincing evidence shows that Cox did not waive his claims here, and the district court therefore erred in finding them procedurally defaulted. 1 See Coleman v. Thompson, 501 U.S. 722, 729-30 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991); Wells v. Maass, 28…