Unpublished Disposition, 927 F.2d 612 (9th Cir. 1991)

MEMORANDUM^** 

Edward Wills, a Nevada state prisoner, appeals pro se the district court's denial of his petition for habeas corpus. Wills was convicted of murder for his role in aiding and abetting Julius Neuschafer, Jr. in the slaying of two teenage girls. After his conviction, Wills filed a direct appeal to the Nevada Supreme Court challenging the sufficiency of the evidence at this trial. The Supreme Court affirmed his conviction. Wills v. State, 93 Nev. 443 (1977).

In 1984, Wills filed a state habeas petition which alleged that he received ineffective assistance of counsel at trial and that the state failed to convict him for the crimes charged in the indictment. After denial of the petition by the state court, the Supreme Court found that the indictment was sufficient and that the claim of ineffective assistance of counsel was procedurally barred due to laches.

Wills then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, he raised all three of the issues that had previously been before the Nevada Supreme Court. The district court dismissed Wills' petition with prejudice, finding that both the indictment and the evidence were sufficient and that the ineffective assistance of counsel claim was procedurally barred from review. We affirm.

STANDARD OF REVIEW

Since the highest state court has ruled on all the issues raised in his petition, Wills has exhausted his state remedies on these matters. McQuown v. McCartney, 795 F.2d 807, 809 (9th Cir. 1989). We review the district court's dismissal of the claims on the merits de novo. Barker v. Estelle, 913 F.2d 1433, 1437 (9th Cir. 1990). However, we are precluded from hearing the procedurally barred claim unless Wills can show "cause and prejudice." See Wainwright v. Sykes, 433 U.S. 72 (1977); Tacho v. Martinez, 862 F.2d 1376, 1378 (9th Cir. 1988).

DISCUSSION

The Nevada Supreme Court found that Wills' seven year delay in raising his ineffective assistance of counsel claim unduly prejudiced the state and should be barred under statutory time limitations.¹  Wills attempts to show "cause" by asserting that his transfer to New Mexico during the year following his conviction and the "lock-down" status of the Nevada prison upon his return prevented him from obtaining access to legal materials and resources necessary for him to timely file his state habeas petition. The record shows that Wills had access to state habeas forms, that he filed a petition for federal habeas corpus relief, and that he had contact with an attorney hired by his family prior to the state procedural deadline. We therefore conclude that the district court properly refused to consider this claim on the ground that Wills has not demonstrated sufficient cause for his state procedural default.

Wills also contends that the State failed to convict him for the charges contained in the indictment. Nevada law allows for an aider and abettor to be charged as a principal.²  This law was interpreted by the Nevada Supreme Court in McWilliams v. State, 87 Nev. 302, 46 P.2d 41 (1971), which found that charging a person as a principal in an indictment was sufficient notice of the charges to lead to a conviction for aiding and abetting. Since this is the law that was in effect at the time of his conviction, the indictment was sufficient.³ 

With respect to the sufficiency of evidence claim, the record shows that there is ample evidence upon which to sustain Wills' conviction as an aider and abettor. For insufficiency of the evidence to be a grounds for reversal, we must determine whether any rational trier of fact could have found him guilty with the evidence presented at trial, viewing the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 433 U.S. 307, 319 (1979).⁴ 

The prosecution introduced the following evidence at trial. Wills drove the car to the murder scene, helped destroy evidence of the crimes and boasted to others that "we killed some people." Before Neuschafer left to kill the first victim, he handed Wills a knife and told him "to get rid of" the other girl. Although he did not actually follow through on Neuschafer's instructions, Wills, knowing that Neuschafer intended to kill one of the girls, remained with the other girl and accompanied Neuschafer when he murdered the second victim. Thereafter, he remained in Neuschafer's company for several days, cooperated fully in destroying evidence of the crime and later told friends that "we killed some people."

Under Nevada statutes, it is necessary to show only that the crime has been committed, and that the defendant, if present, aided and assisted in the commission of the crime. See Austin v. State, 87 Nev. 578, 586, 491 P.2d 724 (1971); Harley v. State, 85 Nev. 154, 159, 451 P.2d 852 (1969). We agree with the Nevada Supreme Court, see Wills v. State, 93 Nev. 443, 566 P.2d 1138 (1977), and the district court below that there was ample evidence that Wills aided and assisted in the commission of the crime. Wills' assertion that he was an involuntary participant merely conflicts with the prosecution's evidence; the determination of which party's evidence is more credible falls within the province of the jury.

Accordingly, we conclude that the district court did not err in finding that the evidence and indictment were sufficient and that the ineffective assistance of counsel claim was barred by procedural default. The decision of the district court is therefore

AFFIRMED.