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

 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
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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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