Howard v. Gittere
Decision Date | 28 May 2019 |
Docket Number | Case No. 2:93-cv-01209-LRH-VCF |
Citation | 392 F.Supp.3d 1205 |
Parties | Samuel HOWARD, Petitioner, v. William GITTERE, et al., Respondents. |
Court | U.S. District Court — District of Nevada |
Deborah Czuba, Jonah Horwitz, Federal Defender Service of Idaho, Boise, ID, for Petitioner
Heather D. Procter, Nevada Attorney General's Office, Carson City, NV, for Respondent
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, 132 S.Ct. 1309, 182 L.Ed.2d 272 (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.
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.
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. at 9, 17, 132 S.Ct. 1309. The Ninth Circuit has explained the showing a petitioner must make to take advantage of Martinez :
Runningeagle v. Ryan , 825 F.3d 970, 982 (9th Cir. 2016) (footnote omitted).
These are the ineffective assistance of trial counsel (IATC) and appellate counsel (IAAC) claims the Ninth Circuit has directed this court to consider:
Subsequent to the Ninth Circuit's issuance of a limited remand, the U.S. Supreme Court decided Davila v. Davis , ––– U.S. ––––, 137 S. Ct. 2058, 198 L.Ed.2d 603 (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 (). 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 of robbery." ECF No. 338-12, p. 12. An additional instruction read as follows:
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