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Howard v. Gittere

United States District Court, D. Nevada

May 28, 2019

SAMUEL HOWARD, Petitioner,
v.
WILLIAM GITTERE, et al., Respondents.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE

         On August 10, 2015, the Ninth Circuit granted petitioner Howard's motion for a limited remand for reconsideration of twenty-nine claims in light of the Supreme Court's decision in Martinez v. Ryan, 566 U.S. 1 (2012).[1] Having considered the briefing and exhibits submitted by the parties, the court concludes that Howard is not entitled to habeas relief on any of the twenty-nine claims.

         I. BACKGROUND

         On May 6, 1983, pursuant to jury verdicts in the Eighth Judicial District Court of Nevada, Howard was convicted of murder in the first degree with use of a deadly weapon and was sentenced to death. He was also convicted of two counts of robbery with use of a deadly weapon in the same proceeding. In support of its death verdict, the jury found two aggravating circumstances: (1) the murder was committed by a person who had been convicted of a prior violent felony; and (2) the murder was committed while the person was engaged in the commission of a robbery.

         On December 28, 2009, this court entered a final order denying Howard's third amended petition for writ of habeas corpus in relation to the conviction and death sentence. Prior to that, the court had concluded that review of several of Howard's habeas claims, including numerous ineffective assistance of counsel claims, was barred by the doctrine of procedural default.

         Howard appealed this court's final order. The Ninth Circuit Court of Appeals subsequently granted his motion to stay pending the outcome of his then-pending state habeas petition. During the stay, Howard filed the aforementioned motion for a limited remand.

         II. MARTINEZ V. RYAN

         In Martinez, the U.S. Supreme Court held that ineffective assistance of post-conviction relief counsel may serve as cause to excuse a federal habeas petitioner's procedural default of an ineffective assistance of trial counsel claim. 566 U.S. 9, 17. The Ninth Circuit has explained the showing a petitioner must make to take advantage of Martinez:

Where, as here, the state criminal justice system satisfies the characteristics required by Martinez, the petitioner must make two related showings about the strength of his particular IAC claim to excuse its default.
First, the IAC claim must be “a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez, 132 S.Ct. at 1318. Thus, there must be a substantial showing of a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. 2052.
Second, a petitioner must show that “appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington.” Martinez, 132 S.Ct. at 1318. Construing Martinez, we have held that, to fulfill this requirement, a petitioner must show not only that PCR counsel performed deficiently, but also that this prejudiced the petitioner, i.e., that “there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different.” Pizzuto v. Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015) (quoting Clabourne v. Ryan, 745 F.3d 362, 367 (9th Cir.), proceedings suspended and mandate stayed (Apr. 2, 2014), and overruled on other grounds by McKinney v. Ryan, 813 F.3d 798, 818 (9th Cir. 2015) (en banc)). Although the prejudice at issue is that in PCR proceedings, this is a recursive standard. It requires the reviewing court to assess trial counsel's as well as PCR counsel's performance. This is because, for us to find a reasonable probability that PCR counsel prejudiced a petitioner by failing to raise a trial-level IAC claim, we must also find a reasonable probability that the trial-level IAC claim would have succeeded had it been raised.

Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016) (footnote omitted).

         III. THE TWENTY-NINE CLAIMS

         These are the ineffective assistance of trial counsel (IATC) and appellate counsel (IAAC) claims the Ninth Circuit has directed this court to consider:

(1) IATC for failure to conduct a meaningful mitigation investigation or present meaningful mitigation evidence.
(2) IATC for failure to challenge the jury instruction on the degree of proof.
(3) IATC for failure to challenge the jury instruction on Howard's mental state.
(4) IATC for failure to challenge the jury instruction on premeditation.
(5) IATC for failure to challenge the jury instruction limiting mitigation to “any other mitigating circumstance.”
(6) IATC for failure to challenge the trial court when it required a unanimous jury finding on mitigation.
(7) IATC for failure to contact Howard's California defense attorney, who could have provided information germane to the Nevada case.
(8) IATC for failure to obtain transcripts of Howard's California robbery trial.
(9) IATC for failure to obtain medical records from Clark County Detention Center.

         (10) IATC for failure to request a competency hearing and otherwise pursue a finding of incompetency to stand trial.

(11) IATC for failure to obtain a suppression hearing on Howard's in-custody statements to police officers.
(12) IATC for failure to present a legal insanity defense.
(13) IATC for failure to obtain Howard's visiting records at Clark County Detention Center.
(14) IATC for failure to obtain the names of Howard's aunt and ex-girlfriend, who could have testified on his behalf at mitigation.
(15) IATC for failure to obtain documentation of an inmate request to correspond with Howard.
(16) IATC for failure to refute future dangerousness.
(17) IATC for improperly seeking a continuance.
(18) IAAC for failure to challenge the improper continuance.
(19) IAAC for failure to raise a claim based on the constructive denial of counsel at trial.
(20) IAAC for failure to challenge the jury instructions on reasonable doubt, lesser-included offense, and premeditation.
(21) IAAC for failure to challenge the jury instruction on the mental state required by the offense.
(22) IAAC for failure to challenge the jury instruction on first and second degree murder.
(23) IAAC for failure to challenge the instruction on malice and improper shifting of the burden of proof.
(24) IAAC for failure to challenge the jury instruction limiting mitigation to “any other mitigating circumstance.”
(25) IAAC for failure to challenge the trial court's decision to require a unanimous jury finding on mitigation.
(26) IAAC for failure to challenge the improper lessening of the burden of proof at sentencing.
(27) IAAC for failure to raise cumulative error.
(28) IAAC for failure to challenge the arbitrary and capricious imposition of the death penalty.
(29) IAAC for failure to challenge cruel and unusual punishment by use of lethal injection.

ECF No. 313-1, p. 12-15.

         IV. ANALYSIS

         Subsequent to the Ninth Circuit's issuance of a limited remand, the U.S. Supreme Court decided Davila v. Davis, 137 S.Ct. 2058 (2017), a case in which the Court expressly declined to extend the Martinez exception to allow federal courts to consider ineffective assistance of appellate counsel claims. Id. at 2063. Howard concedes that, because of Davila, his IAAC claims are no longer subject to review. ECF No. 385, p. 13.

         With respect to his IATC claims, Howard has confined his argument on remand to certain claims. The court is left to assume that Howard views the remaining claims as lacking sufficient merit to warrant the court's consideration. Accordingly, the court addresses only the claims Howard supports with argument in his briefs on remand.

         In addition, the court agrees with Howard's point in his reply brief that the court does not contemplate an additional round of briefing on the merits of any claims that may satisfy the Martinez test. See ECF No. 385, p. 11 (“[T]he Court did not call for bifurcated litigation, with one round of briefs on whether the procedural defaults can be excused and a second round on whether they are meritorious.”). As the above-excerpt from Runningeagle makes clear, the determination whether Howard's defaults can be excused under Martinez cannot be divorced from the determination whether his remanded IAC claims succeed on the merits. Thus, the analysis below focuses primarily on whether Howard is entitled to habeas relief on any of his remanded claims without necessarily considering whether he can satisfy the Martinez test.

         IATC for failure to challenge jury instructions on premeditation and intent.

         Howard argues trial counsel provided ineffective assistance by neglecting to challenge incorrect jury instructions regarding the mental state required for first-degree murder in Nevada.

         Prior to deliberating in the guilt phase of Howard's trial, the jury was instructed that “Murder of the First Degree is murder which is (a) perpetrated by any kind of willful, deliberate and premeditated killing, or (b) committed in the perpetration or attempted perpetration ...


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