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Richard v. Howell

United States District Court, D. Nevada

November 6, 2019

MARVIN D. RICHARD, Petitioner,
v.
JERRY HOWELL, et al., Respondents.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (ECF NO. 52), AND DENYING MOTION FOR EVIDENTIARY HEARING (ECF NO. 57)

          KENT J. DAWSON, UNITED STATES DISTRICT JUDGE

         Introduction

         In this habeas corpus action, brought by Nevada prisoner Marvin D. Richard, the respondents have filed a motion to dismiss. The Court will grant that motion in part and deny it in part, and will deny Richard's motion for an evidentiary hearing, as is explained below.

         Background

         On October 13, 2010, Richard was convicted, after a jury trial, in Nevada's Eighth Judicial District Court, in Clark County, of second-degree murder with use of a deadly weapon, and he was sentenced to 10 to 25 years in prison for the murder and an additional and consecutive 3 to 8 years for the use of a deadly weapon. See Judgment of Conviction, Exh. 2 (ECF No. 9-2). The conviction was the result of Richard's killing, by stabbing, of his long-time live-in girlfriend, Loreal Goodwin.

         Richard appealed. See Fast Track Statement, Exh. 3 (ECF No. 9-3). The Nevada Supreme Court affirmed the judgment of conviction on June 8, 2011. See Order of Affirmance, Exh. 6 (ECF No. 9-6). The remittitur was issued on July 5, 2011. See Remittitur, Exh. 7 (ECF No. 9-7).

         Richard filed a pro se state habeas petition on February 21, 2012. See Petition for Writ of Habeas Corpus, Exh. 8 (ECF No. 9-8). Counsel was appointed for Richard, and, with counsel, Richard filed a supplemental petition. See Supplemental Petition for Post-Conviction Writ of Habeas Corpus, Exh. 11 (ECF Nos. 9-11, 10-1, 10-2); Amended Supplemental Petition for Post-Conviction Writ of Habeas Corpus, Exh. 13 (ECF No. 10-4). The state district court held an evidentiary hearing on August 28, 2014. See Transcript of Evidentiary Hearing, Exh. 161 (ECF No. 40-1). After the evidentiary hearing, the court appointed an expert on battered-spouse syndrome to evaluate Richard. See Order Appointing Dr. Shera Bradley, Ph.D., as Court Appointed Psychologist, Exh. 17 (ECF No. 11-2). The court ordered supplemental briefing, and Richard filed a second supplemental petition. See Second Supplemental Petition for Writ of Habeas Corpus, Exh. 18 (ECF No. 11-3). Then, after entertaining oral argument (see Transcript of Proceedings, January 20, 2016, Exh. 180 (ECF No. 40-20)), the state district court denied Richard's petition in a written order filed on August 17, 2016. See Findings of Fact, Conclusions of Law and Order, Exh. 22 (ECF No. 11-7). Richard appealed. See Appellant's Opening Brief, Exh. 24 (ECF No. 11-9). The Nevada Court of Appeals affirmed the denial of Richard's petition on August 16, 2017. See Order of Affirmance, Exh. 28 (ECF No. 11-13). The remittitur was issued on September 11, 2017. See Remittitur, Exh. 29 (ECF No. 11-14).

         This Court received a pro se petition for writ of habeas corpus from Richard, initiating this action, on January 31, 2018; the petition states that it was mailed on January 29, 2018. See Petition for Writ of Habeas Corpus, p. 1 (ECF No. 1-1, p. 2). The Court granted Richard's motion for appointment of counsel, and appointed counsel to represent him. See Order entered February 9, 2018 (ECF No. 4). With counsel, Richard filed a first amended petition on March 23, 2018 (ECF No. 8), a second amended petition on October 4, 2018 (ECF No. 18), and a third amended petition, his operative petition, on April 22, 2019 (ECF No. 50).

         In his third amended petition, Richard asserts the following grounds for habeas corpus relief:

1A. Richard's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, on account of his trial counsel's failure “to call lay witnesses in support of the theory of self-defense.”
1B. Richard's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, on account of his trial counsel's failure “to present expert evidence regarding psychological issues involving intimate partner violence.”
1C. Richard's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, because “trial counsel tricked Mr. Richard into testifying in his defense.”
1D. Richard's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, because “counsel didn't ask Mr. Richard about Ms. Goodwin's aggressive nature.” 1E. Richard's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, because “counsel failed to follow up on juror tampering.”
1F. Richard's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, on account of his trial counsel's failure “to litigate the issue whether the police acted in bad faith when they failed to test Mr. Richard's blood.”
2. Richard's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, because of trial counsel's failure to present certain evidence in mitigation at Richard's sentencing.
3. Richard's federal constitutional rights were violated because, when he decided to testify at trial, Richard “did not knowingly and voluntarily waive his right against self-incrimination.”
4. Richard's federal constitutional rights were violated because “[t]he jury's verdict was contaminated by juror misconduct and tampering.”
5. Richard's federal constitutional rights were violated because “[t]he State failed to preserve material evidence by not testing Mr. Richard's blood, it made that decision in bad faith, and the ...

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