Phelps

MEMORANDUM **

Appellant Edward Phelps was convicted by a jury of second-degree murder with the use of a deadly weapon, in violation of NevRev.Stat. § 193.165(5)(b) (1996), for placing his co-worker, Billy Matthews, in a commercial trash compactor and crushing him to death. After exhausting his appeals in state courts, which rejected his vagueness challenge on an “as applied” basis, he petitioned for federal habeas relief by under 28 U.S.C. § 2254 , arguing that Nevada’s deadly weapon enhancement, NevRev.Stat. § 193.165, is unconstitutionally vague. NevRev.Stat. *618 § 193.165(5) defines a deadly weapon, and paragraphs (a) and (b) incorporate two tests, referred to in Nevada case law as the “inherently dangerous test” and the “functional test.” The question on appeal refers to the alleged vagueness of the “functional test,” which defines a “deadly weapon” as follows:

Nev.Rev.Stat. § 193.165(5)(b).

The district court denied Appellant’s petition and held that the statute was not vague. We review de novo the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition. See Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.2004), cert. denied, — U.S. -, 126 S.Ct. 484 , 163…