United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
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). 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
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.
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
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.
MARTINEZ V. RYAN
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.
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).
THE TWENTY-NINE CLAIMS
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
(5) IATC for failure to challenge the jury instruction
limiting mitigation to “any other mitigating
(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.
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
(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.
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.
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.
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
for failure to challenge jury instructions on premeditation
argues trial counsel provided ineffective assistance by
neglecting to challenge incorrect jury instructions regarding
the mental state required for first-degree murder in Nevada.
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 ...