No.

OCTOBER TERM, 2019

IN THE OF THE

EUGENE NUNNERY, Petitioner, v.

THE STATE OF , Respondent.

On Petition for Writ of Certiorari to the Supreme Court of Nevada

Petitioner’s Application to Extend Time to File Petition for Writ of Certiorari

CAPITAL CASE

CHRISTOPHER R. ORAM, ESQ. Nevada Bar No. 4349 [email protected] 520 South 4th Street, 2nd Floor Las Vegas, Nevada 89101 (702) 384-5563 (702) 974-0623 (Fax)

No.

OCTOBER TERM, 2019

IN THE SUPREME COURT OF THE UNITED STATES

EUGENE NUNNERY, Petitioner, v.

THE STATE OF NEVADA, Respondent.

Petitioner’s Application to Extend Time to File Petition for Writ of Certiorari CAPITAL CASE

To the Honorable Elena Kagan, as Circuit Justice for the United States Court of

Appeals for the Ninth Circuit:

Petitioner Eugene Nunnery respectfully requests that the time to file a

Petition for Writ of Certiorari in this matter be extended for sixty days from the date of this Motion, to and including, July 1, 2019.1 The Nevada Supreme Court issued its order affirming the denial of habeas relief on November 28, 2918, attached as

Appendix A. Its order denying the petition for rehearing on February 26, 2019, is attached as Appendix B. Petitioner’s due date for filing a Petition for Writ of

Certiorari is currently May 24, 2019. Petitioner is filing this application at least ten

1 The sixty day calculation lands on June 29, 2019, a Saturday. Pursuant to Supreme Court Rule 30, the date shall be extended to the next judicial day. 1 days before that date. See Sup. Ct. R. 13.5. This Court has jurisdiction under 28

U.S.C. § 1257(a).

BACKGROUND

Mr. Nunnery was convicted of one count of first-degree murder with use of a deadly weapon, two counts of attempted murder with use of a deadly weapon, conspiracy to commit robbery, robbery with use of a deadly weapon, and two counts of attempted robbery with the use of a deadly weapon and sentenced to death on the murder (Exhibit A). Mr. Nunnery has unsuccessfully sought post-conviction relief in the State of Nevada (Exhibit A). The instant appeal comes to this Court from denial of Mr. Nunnery’s state petition for post-conviction relief.

REASONS FOR GRANTING THE EXTENSION

The time for filing a Petition for Writ of Certiorari should be extended for sixty days for the following reasons:

1. Christopher R. Oram, counsel of record for Petitioner, has been unable to complete the Petition for Writ of Certiorari, despite his diligent efforts to do so, due to his responsibilities within his caseload which include numerous upcoming capital murder cases pending trial, and deadlines in other capital and non-capital appellate matters. Of note, Mr. Oram has been preparing for numerous capital trials: State of

Nevada v. Contrayer Zone, C-16-316686-2 (Eighth Judicial District Court) (recently continued from March 11, 2019), State of Nevada v. Melvin Collins, C-12-281853-1

(Eighth Judicial District Court) (recently continued from March 11, 2019), and State of Nevada v. Johnathon Stamps, C-18-329351-1 (Eighth Judicial District Court)

(scheduled to begin May 14, 2019).

2. Mr. Oram has also had to devote significant time and attention to the pending murder trial of USA v. Palafox, 2:16-cr-00265-GMN-CWH (federal district court for the district of Nevada), wherein Mr. Oram represents defendant Cesar

2 Morales, a case surrounding the Vagos Motorcycle Club. In that case, Mr. Morales is charged with Murder during and in retaliation to a crime of violence as well as conspiracy to participate in a racketeering enterprise. Mr. Morales’ trial is scheduled to begin in late July and the undersigned has had to devote substantial time to the case given the vast discovery involved. Specifically, the government has provided the undersigned with 98,000 Title III interceptions, two terabytes of surveillance discovery, and numerous productions of discovery of approximately 135,000, 144,000,

11,500, 112,000, and 92,000 pages. Additionally, there is a companion murder case, where the trial lasted thirteen days, that must be reviewed in its entirety. Mr. Oram has been working diligently reviewing the unusually vast production of discovery in preparation for the upcoming Morales trial.

3. Mr. Oram has begun work on the instant petition for writ of certiorari, but needs an additional sixty days in order to complete the petition.

4. Mr. Nunnery has been under sentence of death since May of 2008. This

Court has consistently held that death is different: “[t]he taking of life is irrevocable.

It is in capital cases especially that the balance of conflicting interests must be weighed most heavily in favor of the procedural safeguards of the Bill of Rights.” Reid v. Covert, 354 U.S. 1, 45–46 (1957) (on rehearing) (Frankfurther, J., concurring); see also Gregg v. Georgia, 428 U.S. 153, 188 (1976) (“the penalty of death is different in kind from any other punishment imposed under our system of criminal justice.”)

Capital litigants should be given every reasonable opportunity to bring their claims of constitutional error before the courts.

5. The petition for writ of certiorari that Mr. Nunnery intends to file raises substantial constitutional issues regarding the violation of his right to counsel and to due process of law. In the instant habeas proceeding, the state courts did not address

Mr. Nunnery’s request for an evidentiary hearing to determine whether counsel was

3 aware of the experts utilized in the other trials where Mr. Nunnery did not receive a sentence of death. The state court did not consider whether counsel simply failed to utilize crucial findings from Mr. Nunnery’s other trials wherein he did not receive a sentence of death. The extreme and unusual facts of the instant capital case present precisely the type of egregious outlier situation that warrants this Court’s plenary review.

6. No meaningful prejudice would arise from the extension, because this

Court would likely decide the matter in the October 2019 Term regardless of whether an extension is granted.

7. This application for an extension of time is not sought for the purposes of delay or for any other improper purpose, but only to ensure that Mr. Nunnery receives competent representation in this matter.

DATED this 30th day of April, 2019. Respectfully submitted,

CHRISTOPHER R. ORAM, ESQ.

/s/ Christopher R. Oram, Esq.___ CHRISTOPHER R. ORAM, ESQ. Nevada Bar No. 4349 [email protected] 520 South 4th Street, 2nd Floor Las Vegas, Nevada 89101 (702) 384-5563 Counsel for Petitioner

4 EXHIBITS

Exhibit A Eugene Nunnery v. State, Docket No. 70875 (Order of Affirmance, November 28, 2018)

Exhibit B Eugene Nunnery v. State, Docket No. 70875 (Order Denying Rehearing, February 26, 2019)

5