Riley

MEMORANDUM **

Billy Ray Riley, a Nevada state prisoner, appeals the District of Nevada’s denial of his 28 U.S.C. § 2254 petition for the writ of habeas corpus, challenging his conviction by the Eighth Judicial District Court in Clark County, Nevada, for battery with the use of a deadly weapon.

I

Riley wholly relies on the Nevada Supreme Court’s rejection of the functional test in Zgombic v. State, 106 Nev. 571 , 798 P.2d 548 (1990), to support his contention that he was prejudiced by failure of appellate counsel to raise the vagueness issue. In Zgombic , the Nevada Supreme Court rejected the application of the functional test to Nev.Rev.Stat. § 193.165’s classification of a “deadly weapon,” opting for the narrower “inherently dangerous weapon” test. However, Riley’s reliance on Zgombic is unavailing. The decision in Zgombic , arguably unavailable to appellate counsel during briefing, did not challenge the use of the functional test to define “deadly weapon” as an element of a crime, as it was used in Riley’s conviction under Nev. Rev.Stat. § 200.481. ‘We have no dispute with these cases which use the functional test to define a deadly weapon when a deadly weapon is an element…