Howard (Samuel) v. State (Death Penalty-Pc) ( 2014 )


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  •                 habeas corpus on October 25, 2007, and an amended petition on February
    24, 2009. The State filed a motion to dismiss the petition. The district
    court denied the petition as procedurally barred. In this appeal, Howard
    argues that the district court erroneously denied his post-conviction
    petition on the grounds that: (1) the premeditation instruction given to
    the jury was constitutionally infirm because it failed to define deliberation
    as a distinct element of first-degree murder, (2) trial counsel were
    ineffective for not investigating and presenting mitigation evidence during
    the penalty hearing, and (3) he is actually innocent of the death penalty.
    Because Howard filed his petition nearly 21 years after the
    remittitur issued on direct appeal and he had previously filed three other
    post-conviction petitions, the petition was untimely under NRS 34.726 and
    successive pursuant to NRS 34.810(2). The petition therefore was
    procedurally barred absent a demonstration of good cause and prejudice.
    NRS 34.726(1); NRS 34.810(3). When a petitioner cannot demonstrate
    good cause, the district court may nevertheless excuse a procedural bar if
    he demonstrates that failing to consider the petition would result in a
    fundamental miscarriage of justice. Pellegrini v. State, 
    117 Nev. 860
    , 887,
    
    34 P.3d 519
    , 537 (2001). A fundamental miscarriage of justice requires "a
    colorable showing" that the petitioner is "actually innocent of the crime or
    is ineligible for the death penalty." 
    Id. To establish
    actual innocence of
    the death penalty, the petitioner "must show by clear and convincing
    evidence that, but for a constitutional error, no reasonable juror would
    have found him death eligible." 
    Id. The State
    pleaded laches pursuant to NRS 34.800. Under that
    provision, a petition may be dismissed if the delay in filing the petition
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    prejudices the State. NRS 34.800(1). A period exceeding five years
    between the judgment or a decision on direct appeal and the filing of a
    petition creates a rebuttable presumption of prejudice to the State. NRS
    34.800(2). Howard cannot overcome the presumption of prejudice under
    NRS 34.800(1)(a) because the claims were previously available, and, as to
    the presumption of prejudice under NRS 34.800(1)(b), he has failed to
    demonstrate a fundamental miscarriage of justice.
    Premeditation instruction
    Howard argues that the premeditation instruction given to the
    jury was constitutionally infirm because it failed to define deliberation as
    a distinct element of first-degree murder. He acknowledges that he
    challenged the premeditation instruction in his third post-conviction
    petition but argues that this court should nevertheless revisit his claim,
    see Hall v. State, 
    91 Nev. 314
    , 315-16, 
    535 P.2d 797
    , 798-99 (1975), and
    that the procedural bars do not apply because this court's decision in Nika
    v. State, 
    124 Nev. 1272
    , 
    198 P.3d 839
    (2008), changed the law.
    The jury was instructed in accordance with what has become
    known as the Kazalynl instruction. In Byford     V.   State, 
    116 Nev. 215
    , 233-
    37, 
    994 P.2d 700
    , 712-15 (2000), this court disapproved of the Kazalyn
    instruction and provided district courts with new instructions to use in the
    future. We concluded in 
    Nika, 124 Nev. at 1287-89
    , 198 P.3d at 850-51,
    that Byford does not apply to cases that were final when it was decided.
    Howard's conviction was final 14 years before Byford was decided and
    1Kazalyn   v. State, 
    108 Nev. 67
    , 75, 
    825 P.2d 578
    , 583 (1992).
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    therefore Byford does not apply. Howard acknowledges Nika but argues
    that its reasoning is flawed because (1) it did not address the due process
    concerns raised by the Ninth Circuit Court of Appeals in Polk v. Sandoval,
    
    503 F.3d 903
    (9th Cir. 2007), regarding the Kazalyn instruction and (2) it
    overlooked constitutional concerns about the Kazalyn instruction. Neither
    ground warrants reconsideration of Nika nor any other relief because, as
    explained in Nika, this court is not bound by the Polk decision and
    Howard has not convinced us that the               Kazalyn    instruction is
    constitutionally infirm. Therefore, the district court did not err by
    denying this claim as procedurally barred.
    Ineffective assistance of counsel
    Howard argues that the district court erred by denying his
    claim that trial counsel were ineffective for not investigating and
    presenting mitigation evidence during the penalty hearing. In addition to
    his claim being procedurally barred under NRS 34.726(1) and NRS
    34.810(1)(b)(2), his challenge is also barred by the law-of-the-case doctrine
    because we previously rejected his challenges to trial counsel's
    effectiveness in appeals from the denial of prior post-conviction petitions
    Relying primarily on Porter v. McCollum, 
    558 U.S. 30
    (2009), Howard
    argues that this court should revisit this claim because the law has
    changed and this court's previous decisions denying relief on his
    ineffective-assistance-of-counsel claim were wrong. We conclude that
    Porter does not provide good cause to overcome applicable procedural bars
    or justify a departure from the law-of-the-case doctrine and therefore the
    district court did not err by denying this claim. Howard's claim has two
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    components—counsel's alleged failure to investigate potential mitigation
    and counsel's failure to present mitigation.
    As to the investigation aspect of Howard's claim, his reliance
    on Porter to justify revisiting this claim is flawed. In Porter, the Supreme
    Court held that an uncooperative client does not obviate counsel's
    obligation to conduct some sort of mitigation 
    investigation. 558 U.S. at 40
    .
    Howard contends that, as in Porter, counsel's duty to investigate potential
    mitigation evidence was not obviated by his decision not to present
    mitigation evidence.    Porter's sentiments concerning counsel's duty to
    investigate mitigation despite obstacles to that investigation are not new.
    Long before its decision in Porter, the Supreme Court made clear that
    counsel has a duty to investigate. See Strickland v. Washington, 
    466 U.S. 668
    , 691 (1984) (acknowledging counsel's obligation to "make reasonable
    investigations or to make a reasonable decision that makes particular
    investigations unnecessary" but that "Mlle reasonableness of counsel's
    actions may be determined or substantially influenced by the defendant's
    own statements or actions"); see also Schriro v. Landrigan, 
    550 U.S. 465
    ,
    478 (2007) (recognizing that the reasonableness of counsel's actions in
    investigating potential mitigation evidence is guided by a defendant's
    statements and actions); Wiggins v. Smith, 
    539 U.S. 510
    , 521-23 (2003)
    (recognizing counsel's duty to investigate). At most, Porter interjected
    another factor—an uncooperative client—to the determination of whether
    counsel's investigative efforts satisfied Strickland.
    As to Howard's claim that Porter provides a basis to revisit his
    claim that counsel was ineffective for not presenting mitigation evidence,
    his argument is misplaced because           Porter concerned a failure-to-
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    investigate allegation, not the failure to present mitigation evidence. And
    this court has recognized that a defendant may waive his right to present
    mitigating evidence and counsel's acquiescence to that waiver does not
    establish ineffective assistance of counsel. Kirksey v. State, 
    112 Nev. 980
    ,
    995-96, 
    923 P.2d 1102
    , 1112 (1996); Riley v. State, 
    110 Nev. 638
    , 651 n.8,
    
    878 P.2d 272
    , 280 n.8 (1994). Here, Howard advised the trial court that he
    did not want counsel to present available mitigation evidence, and, after
    canvassing him on his decision, the trial court concluded that he
    understood the nature of mitigation evidence and its value to his case.
    Actual innocence
    Howard argues that he is actually innocent of the death
    penalty because (1) the mitigation evidence adduced at trial and during
    post-conviction proceedings establishes that he is actually innocent of the
    death penalty and (2) the two aggravating circumstances found—he was
    previously convicted of a felony involving the threat or use of force and the
    murder was committed during the perpetration of a robbery—are invalid.
    Actual innocence represents a "very narrow exception" to procedural
    default rules.   Sawyer v. Whitley, 
    505 U.S. 333
    , 341 (1992). Therefore,
    actual innocence compels a showing of something more than the prejudice
    required for most constitutional errors—in this case, ineffective assistance
    of counsel. Otherwise, actual innocence merely supplants the cause and
    prejudice standard attendant to procedurally barred claims. See 
    id. at 345
                    n.13 ("If a showing of actual innocence were reduced to actual prejudice, it
    would allow the evasion of the cause and prejudice standard which we
    have held also acts as an 'exception' to a defaulted, abusive, or successive
    claim" and "fiin practical terms a petitioner would no longer have to show
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    cause, contrary to our prior cases"). And ascribing a broad application of
    the actual-innocence exception contravenes judicial interest in the finality
    of judgments by encouraging perpetual challenges of death sentences with
    each discovery of additional mitigation evidence. See 
    id. at 338
    (observing
    that procedural default jurisprudence is premised on, among other things,
    "concerns for the finality of state judgments of conviction"). For the
    following reasons, we conclude that the district court did not err by
    denying Howard's claim that he is actually innocent of the death penalty
    on any of the grounds he asserts.
    Mitigation evidence
    Howard argues that new mitigation evidence establishes that
    he is actually innocent of the death penalty because had trial counsel
    presented it during the penalty hearing, the jury would not have found
    him death eligible. Even assuming that new mitigation evidence
    previously omitted due to constitutional error could provide the basis for
    an actual innocence claim, but see 
    id. at 345
    -47, Howard must show by
    clear and convincing evidence that he is actually innocent of the death
    penalty, Pellegrini v. State, 
    117 Nev. 860
    , 887, 
    34 P.3d 519
    , 537 (2001).
    Howard presented a plethora of mitigation evidence, but the
    core elements of that evidence show the following: He grew up in a
    physically and emotionally abusive home in the 1950s amidst racism and
    segregation. Howard witnessed his alcoholic father beat his mother on
    several occasions and ultimately kill her and Howard's infant sister when
    Howard was three years old. After the deaths of his mother and sister and
    his father's incarceration, Howard lived with distant relatives for a few
    years but that household was abusive. At age 12, he was sent to the
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    Alabama Industrial School for Negro Children at Mt. Meigs. Children
    housed at Mt. Meigs were subjected to significant physical, sexual, and
    emotional abuse by the staff and other children. The school provided
    inadequate clothing and insufficient and unsanitary food. The children
    were forced to work in the school's vegetable and cotton fields, where they
    worked long hours under harsh conditions and were exposed to dangerous
    pesticides. The dormitories were dilapidated and overcrowded. After
    three years at Mt. Meigs, Howard was sent to live with his abusive father
    for a short time and thereafter lived with relatives in a poor, violent, and
    blighted neighborhood in the Bedford-Stuyvesant section of Brooklyn, New
    York, until he was nineteen and enlisted in the Marine Corps. He
    eventually deployed to Vietnam as a minesweeper and subsequently
    experienced significant stress and trauma from sweeping for mines and
    living under the constant threat of sniper fire. After returning from
    Vietnam, Howard's behavior became erratic, reckless, and aggressive, and
    he engaged in criminal activity and abused drugs. In the months
    preceding Dr. Monahan's murder, Howard's girlfriend noticed that his
    mental state had deteriorated significantly, and he experienced
    nightmares and violent mood swings. He also disappeared for days at a
    time Howard attempted suicide while incarcerated in California and was
    sent to a mental institution for several months. In 2009, a psychologist
    issued a report concluding that he suffered from post-traumatic stress
    disorder (PTSD) as a result of his abusive childhood, especially his
    experience at Mt. Meigs, and combat experience in Vietnam. The
    psychologist also concluded that his exposure to toxic pesticides may have
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    exacerbated his already increased risk for violent behavior and his drug
    abuse, alcoholism, and suicide attempt were consistent with PTSD.
    While the omitted mitigation evidence appears credible and
    constitutes evidence relevant to the sentencing decision, see Lockett v.
    Ohio, 
    438 U.S. 586
    , 602-03 (1978), the jury was exposed to some of these
    aspects of Howard's life. He testified that he volunteered to serve in the
    Marine Corps, suffering a head injury and exposure to Agent Orange
    while deployed to Vietnam. He described the negative effects of Agent
    Orange on his mental state—nervousness, aggressiveness, and violent
    tendencies. He testified that his father had killed his mother and sister
    when he was very young and that he had received psychiatric treatment at
    several hospitals during his lifetime, but he denied being mentally ill. He
    also testified that he had attempted suicide. Considering the new
    mitigation evidence, the circumstances of the murder, and the very narrow
    scope of the actual-innocence exception, we conclude that the new
    mitigation evidence does not rise to the level of clear and convincing and
    therefore does not establish that he is actually innocent of the death
    penalty.
    Additionally, even assuming that the new mitigation evidence
    satisfied the actual-innocence exception, relief is unwarranted because
    Howard's ineffective-assistance claim lacked merit. He frustrated trial
    counsel's attempts to uncover mitigation evidence, and, while counsel is
    obligated to make reasonable decisions regarding investigative efforts, the
    reasonableness of counsel's actions "may be determined or substantially
    influenced by the defendant's own statements or actions." Strickland ix
    Washington, 
    466 U.S. 668
    , 691 (1984). And, more significantly here,
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    Howard instructed counsel not to present mitigating evidence. A
    defendant may waive his right to present mitigating evidence, and
    counsel's acquiescence to that waiver does not establish ineffective
    assistance of counsel. See 
    Kirksey, 112 Nev. at 995-96
    , 923 P.2d at 1112;
    
    Riley, 110 Nev. at 651
    n.8, 
    878 P.2d 280
    n.8.
    Aggravating circumstances
    Prior violent felony
    Howard challenges the prior-violent-felony aggravating
    circumstance based on his 1979 New York robbery conviction on two
    grounds—(1) the State did not allege the robbery conviction in its notice of
    intent to seek the death penalty and (2) he was not convicted of the
    robbery. We conclude that Howard's claims lack merit. At the time of
    Howard's prosecution, SCR 250 did not exist and the prosecution was
    permitted to introduce evidence of aggravating circumstances, other than
    the aggravated nature of the crime itself, only if that evidence was
    disclosed to the defendant before the penalty hearing commenced.         See
    1977 Nev. Stat., ch. 585, § 7, at 1543. The record shows that before the
    jury heard evidence at the penalty hearing, a discussion ensued about the
    prior-violent-felony aggravating circumstance where the prosecution
    indicated that it intended to use the New York robbery conviction. We
    therefore conclude that he received adequate notice that the conviction
    would be used as an aggravating circumstance, but even so, any deficiency
    in the notice cannot establish actual innocence because it does not alter
    the evidence of the robbery conviction or the legal validity of the
    aggravating circumstance.
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    We also reject Howard's contention that he was not convicted
    of robbery. In this, he suggests that prior to the 1997 amendment to NRS
    200.033(2)(b), the prosecution was required to prove a "conviction," as
    contemplated by NRS 200.033(2)(b), by establishing both the existence of
    and the entry of a final judgment. According to Howard, the 1997
    amendment to the statute changed this "commonly understood" definition
    and that applying the new definition imposed by the amendment—"a
    person shall be deemed to have been convicted at the time the jury verdict
    of guilt is rendered or upon pronouncement of guilt by a judge or judges
    sitting without a jury"— to his case would violate the ex post facto clause
    and his due process rights. The legislative history indicates that the 1997
    amendment was enacted to clarify confusion about temporal relationships
    between prior convictions and the penalty phase of capital prosecutions,
    not to redefine the meaning of "conviction" under the statute.           See
    Legislature's Summary of Senate Bill 281, 69th Leg. (Nev. 1997) ("Senate
    Bill 281 clarifies certain provisions relating to circumstances aggravating
    first-degree murder. . . . In addition, a conviction for another murder that
    is not related to the immediate proceeding murder and that occurred at
    any time before the penalty hearing also constitutes an aggravating
    circumstance."); Hearing on S.B. 281 Before the Senate Comm. on
    Judiciary, 69th Leg. (Nev., June 18, 1997); Hearing on S.B. 281 Before the
    Assembly Comm. on Judiciary, 69th Leg. (Nev., July 1, 1997). In light of
    Howard's admission at trial that he sustained the conviction in absentia
    because he absconded during trial and other testimony and court
    documents indicating that he incurred a robbery conviction, we conclude
    that the State sufficiently proved the prior-violent-felony aggravating
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    circumstance based on robbery. See Ktrksey v. State, 
    107 Nev. 499
    , 504,
    
    814 P.2d 1008
    , 1011 (1991) (concluding that defendant's admission to prior
    conviction of robbery, copy of probation officer's report of crime, and copy
    of defendant's criminal history was sufficient to prove aggravating
    circumstance alleged pursuant to NRS 200.033(2)(b)).
    Felony based on robbery
    Howard argues that he is actually innocent of the death
    penalty because the felony aggravating circumstance based on his robbery
    of Dr. Monahan is invalid under McConnell v. State, 
    120 Nev. 1043
    , 1069,
    
    102 P.3d 606
    , 624 (2004) (holding that it is "impermissible under the
    United States and Nevada Constitutions to base an aggravating
    circumstance in a capital prosecution on the felony upon which a felony
    murder is predicated"). Because the jury was instructed on premeditated
    and felony murder and the verdict is silent as to which theory or theories
    the jury relied on in finding Howard guilty of murder, the felony
    aggravating circumstance is invalid. However, the prior-violent-felony
    aggravating circumstance based on his New York robbery conviction
    remains valid and when weighed against the mitigating evidence
    presented to the jury, 2 we conclude that the jury would have found
    2Contrary to Howard's arguments, the reweighing analysis is
    limited to the trial record. See Rippo v. State, 
    122 Nev. 1086
    , 1093-94, 
    146 P.3d 279
    , 284 (2006); Archanian v. State, 
    122 Nev. 1019
    , 1040-41, 
    145 P.3d 1008
    , 1023 (2006); Haberstroh v. State, 
    119 Nev. 173
    , 184 n.23, 
    69 P.3d 676
    , 683 n.23 (2003) (emphasizing that this court's reweighing did not
    involve factual findings "other than those of the jury at the original
    penalty hearing"); see also Bridges V. State, 
    116 Nev. 752
    , 766, 
    6 P.3d 1000
    , 1010 (2000) (stating that this court "elected to explicitly reweigh the
    continued on next page . . .
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    Howard death eligible and imposed death. Therefore, he has not shown by
    clear and convincing evidence that he is actually innocent of the death
    penalty.
    Having considered Howard's claims and concluded that they
    lack merit, we
    ORDER the judgment of the district court AFFIRMED.
    , CA.
    J.
    J.                                    J.
    Parrag-uirre
    J.
    Saitta
    . continued
    aggravating and mitigating circumstances based upon our independent
    review of the trial record").
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    cc:   Hon. Michael Villani, District Judge
    Gordon Silver
    Federal Defender Services of Idaho
    Attorney General/Carson City
    Clark County District Attorney
    Eighth District Court Clerk
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