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Monday, June 24, 2024 | Back issues
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O.J. Simpson Files Final Habeas Brief

LAS VEGAS (CN) - O.J. Simpson's final effort to free himself from a Nevada prison has cleared all hurdles and awaits a decision from the Nevada Supreme Court.

The court in 2013 denied Simpson's habeas request for a new trial after an October 2008 conviction for armed robbery at a Las Vegas casino. Simpson appealed, and Nevada last month filed a brief outlining why the denial of a retrial should be upheld.

Simpson submitted his responding brief on Friday

He claims his initial trial and subsequent appeals counsel, Yale L. Galanter of Florida and Gabriel L. Grasso and Malcolm P. LaVergne of Nevada, were "ineffective according to the Strickland standard" by not demonstrating that his convictions for assault with a deadly weapon and armed robbery amounted to double jeopardy and should have been merged into a single conviction.

Simpson also claims his counsel did not "raise the issue that Simpson was entitled to instructions on the lesser-included offenses of larceny and second-degree kidnapping."

Simpson claims Galanter was partly responsible for the plot to rob two men to retrieve mementos and says the attorney intentionally "sabotaged" the case to avoid legal repercussions.

He says Galanter and other counsel proved they were incompetent by "failing to present a clear double jeopardy argument, resulting in an erroneous decision by this court."

Simpson claims: "(T)he crime of assault based upon a theory of placing someone in reasonable apprehension of bodily harm is even more obviously a subset of robbery than is an assault under the theory of an attempted battery, which requires specific intent. ...

"If the elements of one offense are entirely included within the elements of the second offense, the first offense is a lesser included offense."

In the 26-page brief, Simpson claims that "all elements of assault are included as a subset of robbery. In addition, this court has recognized that the crime of robbery is 'a combination of the crime of assault with that of larceny.'"

He adds: "it is well-established that where a crime may be committed by alternative means, for purposes of double jeopardy analysis, a court should presume that the predicate of the greater offense which is at issue is relevant and not the alternatives."

Simpson claims the U.S. Supreme Court "recognized this in Whalen v. United States, where the court held that the defendant could not be punished for both felony murder and the predicate felony rape because the rape was subsumed within felony-murder even though the murder statute does not always require proof of rape but also listed other felonies which could satisfy the felony element."

Nevada law also should have prevented his additional convictions, according to Simpson.

"NRS 174.085(3) provides in relevant part, 'When a defendant is convicted or acquitted, or has once been placed in jeopardy upon an indictment, information or complaint ... the conviction, acquittal or jeopardy is a bar to another indictment,'" according to the complaint.

It adds: "Nevada's assault statute is not clear regarding lesser-included offenses for statutes providing alternative means of commission of a crime. Given the ambiguous legislative intent, the rule of lenity dictates that the ambiguity be resolved in Simpson's favor."

Simpson claims that when his direct appeal of his conviction "became final on June 13, 2011, Nevada law prohibited multiple punishments for redundant conviction."

He ask the Nevada Supreme Court to reverse the denial of relief.

He is represented by Las Vegas attorneys Osvaldo Fumo, Thomas Pitaro and Patricia Palm.

Simpson has served six years of a sentence of 9 to 33 years in the Nevada state prison system after he and accomplices in 2007 sought to regain sports memorabilia at the Palace Station Casino from men that Simpson claims stole the items from him.

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