Opposition Brief — Samuel Howard, Petitioner v. Nevada

No. 19-7680

IN THE SUPREME COURT OF THE UNITED STATES

March 13, 2020

SAMUEL HOWARD, Petitioner,

THE STATE OF NEVADA, Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEVADA

RESPONDENT?’S BRIEF IN OPPOSITION

JONAH J. HORWITZ*

Idaho Bar# 010494

DEBORAH A. CZUBA

Idaho Bar #009648

Federal Defender Services of Idaho, Inc.

702 West Idaho aaa Suite 900

Boise, Idaho 83702

(208) 331-5530

*Counsel for Appellant

JONATHAN E. VANBOSKERCK

Chief Deputy District Attorney

powes ar #006528

Regional. Jus Justice Center

Lewis Avenue

Post ¢ Office Box 552212

Vegas, Nevada 89155-2212

(iz) 671-2500

Counsel for Respondent

T\APPELLATE\WPDOCS\SECRETARYWWS §.CTIHOWARD, SAMUEL, 19-7680, ST'S OPP TO CERT. PET. DOCX

QUESTION PRESENTED

CAPITAL CASE

1. Whether this Court should not overrule Clemons v. Mississippi,

494 U.S. 738, 110 S. Ct. 1441 (1990) because it is not

inconsistent with Apprendi v. New Jersey, 530 U.S. 466, 120 S.

Ct. 2348 (2000).

2. Whether the Nevada Supreme Court did not violate Petitioners’

rights by requiring the jury to determine whether the mitigating

circumstances did not outweigh the aggravating circumstances in

imposing the death penalty.

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1: APPELLATE WPDOCS SECRETARY LS S.CT HOWARD, SAMUEL, 19-7680. ST'S OPP. TO CERT. PET..DOCX.

TABLE OF CONTENTS

TABLE OF AUTHORITIES... ccccccsessceseeeesesseseeacseseesesaessesscscessseeecsnsasesueeneas 111

STATEMENT OF THE CASE 00.0... seceessssscesesesesessessesssesseesesesscsssssasssssssesesaseneness ]

STATEMENT OF FACTS wo cecccscesessssscesesseesesecsesessesesecsesensscsscssvsseaecseesecsuensees 6

ARGUMENT o.oo eccccseseneeeeseneeeseesessecestsecaeesesesesseseessaesessscessessscssessecsesaeeuesseaes 7

I. PETITIONER’S PETITION SHOULD NOT BE GRANTED BECAUSE IT

DOES NOT RAISE A FEDERAL QUESTION. ......cccccccssscsssesssecsseeseessauecessseses 7

I]. WERE THIS COURT TO CONSIDER PETITIONER’S CLAIMS, THERE

IS STILL NO REASON TO INTERVENE BECAUSE PETITIONER’S

CLAIMS ARE MERITLESS. 0000... cceseeseeseessseeneseeseseseessscsesscssscssesseseeaeeaueeaes 23

CONCLUSION ooo. ccsssceenecsecseesseesecnssaesnessesssesessasssassecsececseseesaassesseseesaeesues 34

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TABLE OF AUTHORITIES

Cases Page Number:

Apprendi v. New Jersey,

530 U.S. 466, 120 S. Ct. 2348 (2000)... ccccccssccsscescssscescsssssnsceaaesssececessasenssee 1, 25

Archanian v. State,

122 Nev. 1019, 1040, 145 P.3d 1008, 1023 (2006) uc ecccsecesessesssseeses 26

Billups v. State,

72 So. 3d 122, 134 (Ala. Crim. App. 2010) 0.0... ce ecseessesssscessssescesseceessseereesses 28

Bridges v. State,

116 Nev. 752, 766, 6 P.3d 1000, 1010 (2000). oo. ee cceeesseecscetecssesssenerss 28

Brown v. Sanders,

546 U.S. 212, 217, 126 S. Ct. 884, 890 (2006) 0... eee cccesssssccersessecesssesesseeees 27

Caldwell v. Mississippi,

472 U.S. 320, 340 n. 7, 105 S. Ct. 2633 (1985) oe ee ssescceeceeeceessetseesees 19, 32

Clemons v. Mississippi,

494 U.S. 738, 110 S. Ct. 1441 (1990) ooo cc eesscesscesesscssscssaesssscteeseaes i, 9, 26

Coleman v. Thompson,

501 U.S. 722, 729, 111 S. Ct. 2546, 2553-54 (1991). cee seeeetestseeeenes 14

Cunningham v. California,

S49 U.S. 270 (2007) occ cecccccccessscceccsssesssssssccssececssesssscussssscesssecesteaseeeeesessacsceseuenes 22

DePasquale v. State,

106 Nev. 843, 852, 803 P.2d 218, 223 (1990) occ ecsccsssssescsreeessssscesserssrsess 32

Emil v. Filson,

D.Nev. No. 3:00-cv-00654- KJD-VPC, 2017 U.S. Dist. LEXIS 175609, at *3-5

(Oct. 22, 2017) .....ccecccccsssccecssscccssssncceesceccsesessesseuuessssnsssecsssssccaeesenseacesececetarseneensces 18

Ennis v. State,

122 Nev. 694, 701, 137 P.3d 1095, 1100 (2006) uu... ees cessesssceceessssseeens 25

Evans v. State,

117 Nev. 609, 646-47, 29 P.3d 498, 523 (2001)... eecesceesssseereeeeeeees 13,17

ili

1: APPELLATE WPDOCS SECRETARY US S.CT-HOWARD. SAMUEL. 19-7080. ST'S OPP, TO CERT PET..DOCX

Ex parte Bohannon,

222 So.3d 525, 532-533 (Ala. 2016), cert. denied, 2017 U.S. LEXIS 871 (2017)

beneceeeseseesssvsuseceecessseseuenceececeseeecessuesscevsusussssssssassscessssssescesessesescesssssesesseeesteneterseccesccs 17

Franklin v. Lynaugh,

487 U.S. 164, 179, 108 S .Ct. 2320 (1988) ooo. cecsssscsscssscccccsseseseessscrsessseeseses 33

Franklin v. State,

110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994) wooo ceessccsscsseceseessecessesecees 13

Gallego v. State,

101 Nev. 782, 711 P.2d 856 (1985)... cceccceccccccssscssecessessccesesssesssecssseseesceesecccees 32

Gideon v. Wainwright,

372 U.S. 335, 345, 83 S. Ct. 792 (1963) voce eecceccescescssessesseseccecsssseesstessessseeeseeees 25

Gillett v. State,

148 So.3d 260, 267-69 (Miss. 2014) oo. ccc ccssccsecsssessssssceececssecssseessecssccreceeseeses 28

Gonzales v. State,

118 Nev. 590, 593-596, 53 P.3d 901, 902-904 ooo ecccesesssscesscssccetececcecccecssess 9

Groesbeck v. Warden,

100 Nev. 259, 260, 679 P.2d 1268, 1269 (1984) wooo ececcccsscesssecssccseceseeeees 11

Hart v. State,

116 Nev. 558, 1 P.3d 969 (2000)... eeeecssscescessscsssseccesesssessssesssesssvsessteseses 12

Hernandez v. Filson,

D.Nev. No. 3:09-cv-00545-LRH-WGC, 2017 U.S. Dist. LEXIS 147103, at *3-6

(Sep. 11, 2017)... ccc ccessccccssscvsssescscssscscssescesesseeseseesececseeesssesessesesssareettasecsececes, 18

Hildwin v. Florida,

490 U.S. 638 (1989) i iceccccccssssccssscsssccccccecececsnaceesecsrsesevususesesssecesseutaesececs 22, 29

Hortonville Joint Sch. Dist. v. Hortonville Educ. Asso.,

426 U.S. 482, 488, 96 S. Ct. 2308, 2312 (1976) occ ceccsscseccsscesceesssssscsesseeeses 22

Howard v. State,

102 Nev. 572, 729 P.2d 1341 (1986) (“Howard 1”)... ccc cecsccceccsesssscsecsessceeesess 3

Howard v. State,

106 Nev. 713, 800 P.2d 175 (1990) (hereinafter “Howard HI”) wee ecceeeceeeees 4

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|: APPELLATE WPDOCS SECRETARY US S.CT HOWARD. SAMUEL. 19-7680. ST'S OPP. TO CERT. PET..DOCX

Hurst v. Florida,

ST7T US. __,__, 136 S. Ct. 616 (2016) ooo icc ceecessessscssssssccscecsreessasesetacessecens 11

Hurst v. State,

202 So. 3d 40, 44 (Fla. 2016) oo. ccccccsscssscsescssssesseecesseeeecescssseesuucsuvsnseesuess 16

In re Coley,

871 F.3d 455 (6th Cir, 2017) o.oo cccecceesssvsssccsssecccssescssscccsessssssssscesssusessscrecessnaes 24

In re Jones,

847 F.3d 1293, 1295 (Oth Cir. 2017) ccc cesscsssccssesssssceserecssscessessscseseeecssss 24

Kansas v. Marsh,

548 U.S. 163, 175, 126 S. Ct. 2516, 2525 (2006) oe ceeccccssssesseceeccescseerseenes 33

Lambert v. State,

825 N.E.2d 1261, 1263 (Ind. 2005)... ieee ccccecceccsssssesesessseessecessscessucessensasessace 28

Lambrix v. Secretary,

872 F.3d 1170, 1182-1183 (11th Cir.2017). 0. ccccccccccccsscsscceccenseesessccescsecsuceceas 24

Lambrix v. Sec'y, Florida Dep't of Corr.,

851 F.3d 1158, 1165 n.2 (11th Cir. 2017) cc eeseesesscssessesececsesutsesnesseees 24

Lee v. Kemna,

534 U.S. 362, 375, 122 S. Ct. 877, 885 (2002) oo... ccc cesscccesscccseesecessecesssressecens 14

Leonard v. Filson,

D.Nev. No. 2:99-cv-0360-MMD-CWH, 2017 U.S. Dist. LEXIS 132801, at *6

(Aug. 18, 2017). ccc cccsssesessseeececssesesssesesscesessesecssssccessssesscsarseseeenassestscassranesens 18

Leonard v. State,

73 N.E.3d 155, 169 (nd. 2017) ...ccccccccssccssscssscesssessscssssccsessessscceeesseceessssessesnsesscs 17

Lisle v. State,

13] Nev. 356, 365-66, 35] P.3d 725, 732 (2015)... cee eeecessssceeseescceesscseesseners 21

McConnell v. State,

125 Nev. , 212 P.3d 307, 314-15 (2009) ooo cc eccsecesssesseresssestseees 32

McKinney v. Arizona,

—_ US. __, 140 S. Ct. 702 (2020) oo c cc cececcscccsscscessscesseesacesssesesseenseenes 30

Vv

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Myers v. State,

2006 OK CR 12, {9 105-115, 133 P.3d 312, 336-37 (Okla. Crim. App. 2006)... 28

Nunnery v. State,

127 Nev. 749, 772, 263 P.3d 235, 251(2011) .ccececcccccsscssccccececssecsessscacsscceesees 31

Pellegrini v. State,

117 Nev. 860, 875, 34 P.3d 519, 529 (2001) occ eeeccssssssecescccsscecsseserssceseees 10

Penry v. Lynaugh,

492 U.S. 302, 319, 109 S. Ct. 2934 (1989) oo secscccsssssessssessscesessrnes 19,32

People v. Jones,

3 Cal. 5th 583, 618-619, 220 Cal.Rptr.3d 618, 398 P.3d 529 (2017) vw 17

People v. Mungia,

44 Cal. 4th 1101, 1139, 189 P.3d 880, 907 (2008) uo. ceceescescesssessesseess 28

People v. Rangel,

62 Cal.4th 1192, 1235, 367 P.3d 649, 681 (2016), cert. denied, 2017 U.S. LEXIS,

85 U.S.L.W. 3325 (2017) v...ccccccccccccscccesssesscessecssccsacceserecsetaeeeseussesessuevsnsssssssscsacens 17

Powell v. State,

2016 Del. LEXIS 649, p. 10-11 (Del. 2016). oo ciccccccsccccesecsessecescetsesssces 24

Rauf v. State,

145 A.3d 430 (Del. 2016)... cecccccceccccssecsscssessscsssssssssscesssseceetseaesueenss seveeeetenees 20

Rice v. Sioux City Memorial Park Cemetery, Inc.,

349 US. 70, 79, 75 S. Ct. 614, 620 (1955) woe ccc ccc ccseesessecessscsssseesecssesesessseceeses 8

Ring v. Arizona,

536 U.S. 584, 122 S. Ct. 2428 (2002) ooo ccccscessecessesesscccsceseseessesssessessuens 1]

Rippo v. State,

132 Nev. 95, 101, 368 P.3d 729, 733 (2016) ....cee i cescccssscesessccccsccesseessssseseseecens 13

Ross v. Moffit,

417 U.S. 600, 616-17, 94S. Ct. 2437, 2447 (1974) oii ccccseccccssssscestseseesesecens 7

Schriro v. Summerlin,

542 U.S. 348, 351-59, 124 S. Ct. 2519, 2522-27 (2004) occ ceececcsscesessseceseees 23

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Smith v. Phillips,

455 U.S. 209, 221, 102 S. Ct. 940, 948 (1982) occ cssecsssscssessessessessesses 8

Spaziano v. Florida,

468 U.S. 447 (1984) occ ice cvessecsssscssscesevsesseesessesstasesesesecsseseutaretesesenees 22, 29

State v. Abdullah,

158 Idaho 386, 470-71, 348 P.3d 1, 79 (2015)... ceeceeececeseccesccsssesesessceseces 28

State v. Berger,

2014 SD 61 9 31 n.8, 853 N.W.2d 45, 57 1.8 (2014)... ceeeescececscsseessasenes 28

State v. Eighth Judicial District Court (Riker),

121 Nev. 225, 234, 112 P.3d 1070, 1076 (2005) oo... cccceececsccccessessessccsecsecees 9

State v. Hausner,

230 Ariz. 60, 84, 280 P.3d 604, 628 (2012)... cece cesscesesccssscesscsscecsesseseeesns 28

State v. Kirkland,

140 Ohio St. 3d 73, 86-87, 15 N.E.3d 818, 834 (2014) oo. cceeessesesssssseesres 28

State v. Mason,

2016 Ohi08400 § 42 (Ohio App.3d)....... ec ccceccccsccscsssecssesecsssecesscesseesssessesesssereees 17

State v. Rice,

184 S.W.3d 646, 677 (Tenn. 2006) 0.0.0... cceccsscessccssesccsceecscccesssesesssseescesaceneseee, 28

State v. Sandoval,

280 Neb. 309, 357-58, 364, 788 N.W.2d 172, 214-15, 218 (2010) wove 28

Thomas v. State,

115 Nev. 148, 979 P.2d 222 (1999)... cccccsecsscssscsssecesssesacecssscessesessssesseceees 13

United States v. Fields,

516 F.3d 923, 950 (10th Cir. 2008) oo... eecssecsscsssecsssoessesssescesecessesscscsscssesese 19

United States v. Gabrion,

719 F.3d 511, 533 (6th Cir. 2013) oo... ce cscsscesscsscesscesseecessesssesesecensesstssssecssenees 19

United States v. Mitchell,

502 F.3d 931, 993-94 (9th Cir, 2007)........ccccccscesscesscssseesssecsssesscessesaecssssescesssece 19

United States v. Purkey,

428 F.3d 738, 750 (8th Cir. 2005) .....ccccccccccssccsscccsscccesscccccesssssessssscecssevsrsreseeesees 19

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United States v. Runyon,

707 F.3d 475, 516 (4th Cir. 2013) voici ceccssecscssessssscescsesecesceescasecssseccsccececeeeses 19

United States v. Sampson,

2016 U.S. Dist. LEXIS 72060 (D. Mass. June 2, 2016) wo... ceeesececctsssesseseeees 19

United States v. Sampson,

486 F.3d 13, 31 (1st Cir. 2007) voce ccc cccsscsscsecessessecscesessseesseccsssscesseseneseress 19

Walton v. Arizona,

497 U.S. 639, 650, 110 S. Ct. 3047, 3055 (1990) wo. eeecsseescssesscseeeses 20, 33

Ward v. Illinois,

431 U.S. 767, 772-73, 97S. Ct. 2085, 2089 (1977)... ccececcecccscccessescecsssesscceseese 22

Ybarra v. State,

100 Nev. 167, 679 P.2d 797 (1984)... cececscescssscssssscssscssesscsssscsssssascseccsessesersesnes 32

Statutes

NRS 34.726 ..ccceccssccsssscsesccsccssesescvessscsessverscessecesecessssesssesssectasevecstersusssesssssavsesevscessees 9

NRS 34.726(1)........cceccccssccvsseceevecssassesssssccsssecsssseceesacsessaseesesesecsesauscecsessseesteeresseses 9,10

NRS 34.800 oo... cccscccsscccssccsscsccsscscsssscecssecssscssssceseecsacersaeeetaseeuseeersseseraussssasessesersreseses 11

NRS 34.800(1).......cccccccessccessssssccsssscecsssscccscssesssecestceeseasesssessessassecseessesessusseees 11,12

NRS 34.800(2)........ccccccccscccsesssccccsnscececsseecessesecesecesenseeeusecsesesscesesaueeveseassesecsseseses 11,12

NRS 34.810 oo... cccccsccccsscsscesssscssssssseccsssssssssscesscecesseesersausceraussessasscensaseeesarsnses 12,14

NRS 34.8101 )(b) oo... cc ceescccsscscccsseccsrscsssscsssccssesccsssesacsesaceceseecsrssessssesecssavseeseesess 12

NRS 34.810(1 )(D)(2) ....cccccccccccccccsssecsssssccssscecsscscessceccstaueesecausesessecersessesussterteecesses 13

NRS 34.810( 2)... ccc ccesecessscessescceaecccseesssesessesessssessssensseesssecesecseasesstssesecsusstecenseces 13

NRS 175.554(3)......ccccccccsssscesssscscssssscccsssscseseccesssscccsseccessaeesesaueessnssecstnecensuevesees 31, 32

NRS 200.030(4)(a) ........ccccccccccccsesssececsssecsssssessssesussssseusacsceseaeesccssseasssssecerssscetaeecenss 32

Other Authorities

36 C.J.S. Federal Courts §295 (2012) .....cccccccsscccccsscesssssecssssscssevacessesssescavsecscceuvace 7

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1, APPELLATE: WPDOCS SECRETARY US S.CT HOWARD. SAMUEL, 19-7680. ST'S OPP. TO CERT, PET..DOCX

No. 19-7680

IN THE SUPREME COURT OF THE UNITED STATES

March 13, 2020

SAMUEL HOWARD, Petitioner,

vy,

THE STATE OF NEVADA, Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEVADA

RESPONDENT?’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

On May 20, 1981, Samuel Howard (hereinafter “Petitioner”) was indicted on

two counts of robbery with use of a deadly weapon and one count of murder with

use of a deadly weapon.

The guilt phase of the trial began on April 11, 1983, and concluded on April

22, 1983. The jury returned a verdict of guilty on all three counts. The penalty phase

was set to begin on May 2, 1983. In the interim, one of the jurors tried to contact the

trial judge about a scheduling problem. Because the district judge was on vacation,

someone referred the juror to the District Attorney’s Office. That Office referred the

juror to the jury commissioner. Petitioner moved for a mistrial or elimination of the

1; APPELLATE WPDOCS SECRETARY US S.CT HOWARD. SAMUEL, 19-7680, ST'S OPP TO CERT. PET..DOCX

death penalty as a sentencing option based upon this contact. After conducting an

evidentiary hearing, the district court denied Petitioner’s motions.

Defense counsel made an oral motion to withdraw indicating they had

irreconcilable differences with Petitioner over the conduct of the penalty phase.

Counsel indicated they had documents and witnesses in mitigation, but that

Petitioner had instructed them not to present any mitigation evidence. Petitioner also

instructed them not to argue mitigation and they would not follow that directive, but

would argue mitigation. The district court canvassed Petitioner and he confirmed it

was true and that he did not want any mitigation presented. The district court found |

Petitioner understood the consequences of his decision and denied the motion to

withdraw concluding defense counsel’s disagreement with Howard’s decision was

not a valid basis to withdraw.

The penalty phase began on May 2, 1983, and concluded on May 4, 1983. The

State originally alleged three aggravating circumstances: 1) the murder was

committed by a person who had previously been convicted of a felony involving the

use of violence - namely robbery with use of a deadly weapon in California, 2) prior

violent felony - a 1978 New York conviction in absentia for robbery with use of a

deadly weapon; and 3) the murder occurred in the commission of a robbery.

Petitioner moved to strike the California conviction because the conviction occurred

after the murder and the New York conviction because it was not supported by a

2

1; APPELLATE WPDOCS SECRETARY US S.CT HOWARD. SAMUEL, 19-7680. SI'S OPP. TO CERT. PET..DOCX

judgment of conviction. The district court struck the California conviction but denied

the motion as to the New York conviction, noting that the records reflected a jury

had convicted Petitioner and the lack of a formal judgment was the result of

Petitioner’s absconding in the middle of trial.

The State presented evidence of the aggravating circumstances and Petitioner

took the stand and related information on his background. During a break in the

testimony, Petitioner suddenly stated he did not understand what mitigation meant

and that he would leave it up to his attorneys to decide what to do. The jury found

both aggravating circumstances existed and that no mitigating circumstances

outweighed the aggravating circumstances. The jury returned a sentence of Death.

Petitioner appealed to the Nevada Supreme Court. The Nevada Supreme

Court affirmed Petitioner’s conviction and sentence. Howard v. State, 102 Nev. 572,

729 P.2d 1341 (1986) (hereinafter “Howard I’). Remittitur was stayed pending the

filing of a petition for Writ of Certiorari to this Court on the anti-sympathy issues.

The petition was denied on October 5, 1987, and remittitur issued on February 12,

1988.

On October 28, 1987, Petitioner filed his first State petition for postconviction relief. An evidentiary hearing was held on August 25, 1988.

Supplemental points and authorities were filed on October 3, 1988. The district court

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entered an oral decision denying the petition on February 14, 1989, Formal findings

of fact and conclusions of law were filed on July 5, 1989.

The Nevada Supreme Court affirmed the district court’s denial of Petitioner’s

first State petition for post-conviction relief. Howard v. State, 106 Nev. 713, 800

P.2d 175 (1990) (hereinafter “Howard IT”). Petitioner proceeded to file a second

Federal habeas corpus petition on May 1, 1991. This proceeding was stayed for

Petitioner to exhaust his state remedies on October 16, 1991.

Petitioner then filed a second State petition for post-conviction relief on

December 16, 1991. The State moved to dismiss the second State petition as

procedurally barred or governed by the law of the case on February 10, 1992.

The district court denied the petition on July 7, 1992. Petitioner appealed the denial

of his second State petition to the Nevada Supreme Court, which dismissed his

appeal on March 19, 1993. Petitioner filed a petition for writ of certiorari challenging

the summary affirmance and this Court denied the request on October 4, 1993.

Petitioner filed his third State petition for post-conviction relief on December

20, 2002. The State filed a motion to dismiss Petitioner’s third state petition on

March 4, 2001. Petitioner filed an amended third petition. On August 20, 2003,

Petitioner filed his opposition to the State’s motion to dismiss his third petition. The

' During the pendency of the first State petition, Petitioner filed his first Federal

Petition for habeas relief. That petition was dismissed without prejudice on June 23,

1988.

4

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State filed a reply to the opposition on September 24, 2003. The district court issued

an oral decision on October 2, 2003, dismissing the third State petition. Written

findings were entered on October 23, 2003. Petitioner appealed the dismissal to the

Nevada Supreme Court, which affirmed the district court’s dismissal of the third

State petition on December 4, 2004.

Petitioner then returned to Federal district court where he filed his Third

Amended Petition for Writ of Habeas Corpus on October 23, 2005. Subsequently,

without seeking approval from the Federal Court, the Federal Public Defender’s

Office filed a Fourth State Post-Conviction Petition on October 27, 2007. The State

filed a motion to dismiss the Fourth State Petition on April 8, 2008. Argument on

the State’s motion to dismiss was heard on February 4, 2010. The matter was taken

under advisement so the district court could review the extensive record. A Minute

Order Decision was issued on May 13, 2010, dismissing the Fourth State Petition as

procedurally barred. A written Findings of Fact and Conclusions of Law was filed

on November 6, 2010. Petitioner appealed the decision to the Nevada Supreme

Court. Ultimately, the Court affirmed the district court’s denial of habeas relief. This

Court denied certiorari.

Petitioner filed a Petition for Writ of Habeas Corpus (Fifth Petition) on

October 5, 2016, in state court. Respondent filed an opposition and motion to dismiss

on November 2, 2016. Argument came before the district court on the April 19,

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2017. On May 2, 2017, the district court issued a minute order denying the Fifth

Petition. The Findings of Fact, Conclusions of Law and Order was filed on May 15,

2017.

On June 1, 2017, Petitioner filed a Notice of Appeal from that decision. On

September 20, 2019, the Nevada Supreme Court affirmed the district court’s ruling

and remittitur issued on October 15, 2019. On February 11, 2020, Petitioner filed a

Petition for Writ of Certiorari.

STATEMENT OF FACTS

The following factual summary was presented by the Nevada Supreme Court:

On March 26, 1980, [Petitioner] was caught in the

act of trying to defraud Sears Roebuck by seeking a refund

on goods which had not been purchased. While being

detained in the store's security office, [Petitioner]

produced a .357 magnum pistol and made his escape,

taking a security officer's badge and portable radio with

him.

Later that day [Petitioner] contacted the victim's

wife, and told her that he was interested in purchasing a

van that she and the victim had advertised for sale in the

Sears parking lot. [Petitioner] was referred to the victim, a

Las Vegas dentist, who made arrangements to meet him

later in the day at a hotel-casino to discuss the purchase of

the vehicle. When the victim, his wife and his daughter

met with [Petitioner] at the hotel, [Petitioner] represented

himself as a security officer employed by the hotel, openly

displaying the stolen portable radio in authentication of

this claim. Arrangements were made during this meeting

for the victim to meet with [Petitioner] the next day, March

27, at the victim's dentistry office to test-drive the vehicle.

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On March 27, the victim's body was found in the van. The

victim had been robbed and murdered.

Howard I, 102 Nev. 573-74, 729 P. 2d at 1342.

ARGUMENT

I. PETITIONER’S PETITION SHOULD NOT BE GRANTED BECAUSE

IT DOES NOT RAISE A FEDERAL QUESTION.

Petitioner’s request for extraordinary relief does not present a conflict

between inferior courts or an important federal question. This Court should reject

Petitioner’s attempt to entice it into reviewing the Nevada Supreme Court’s denial

of Petitioner’s unsupported claim that the Nevada Supreme Court should not be

permitted to reweigh the aggravating and mitigating circumstances in death penalty

cases on appeal.

Rule 10 of the Rules of the Supreme Court of the United States (RSCUS)

precludes discretionary intervention in this matter. Certiorari is only warranted

where there is a substantial conflict between decisions of lower state and/or federal

courts, or where an important question of federal law needs to be settled. It is

generally accepted that “[a] petition for a writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings or the misapplication of a

properly stated rule of law.” 36 C.J.S. Federal Courts §295 (2012). As explained in

Ross v. Moffit, 417 U.S. 600, 616-17, 94 S. Ct. 2437, 2447 (1974), “[t]his Court’s

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review ... is discretionary and depends on numerous factors other than the perceived

correctness of the judgment we are asked to review.”

A conflict between lower courts must be substantial to warrant intervention

by this Court. Indeed, “[i]t is very important that [this Court] be consistent in not

granting the writ of certiorari except . . . in cases where there is a real and

embarrassing conflict of opinion and authority between the circuit courts of appeal.”

Rice v. Sioux City Memorial Park Cemetery. Inc., 349 U.S. 70, 79, 75 S. Ct. 614,

620 (1955).

An important question of federal law is one that goes beyond whether the

alleged error complained of “is undesirable, erroneous or even ‘universally

condemned.” Smith v. Phillips, 455 U.S. 209, 221, 102 S. Ct. 940, 948 (1982). In

order to amount to an important federal question, the issue must be one of broad

scope that actually needs to be settled:

A federal question raised by a petitioner may be ‘of substance’ in the

sense that, abstractly considered, it may present an intellectually

interesting and solid problem. But this Court does not sit to satisfy a

scholarly interest in such issues. Nor does it sit for the benefit of the

particular litigants. ... ‘Special and important reasons’ imply a reach

to a problem beyond the academic or the episodic. This is especially

true where the issues involved reach constitutional dimensions, for then

there comes into play regard for the Court’s duty to avoid decisions of

constitutional issues unless avoidance becomes evasion.

Rice, 349 U.S. at 74, 75 S. Ct. at 616-17 (citations omitted).

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Petitioner does not allege a substantial conflict or an important federal

question. Instead, Petitioner complains that this Court should overrule its decision

in Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441 (1990), to the extent that

it allows an appellate court to independently reweigh aggravating circumstances

against mitigating circumstances to uphold a death sentence.

a. The State procedural bars constitute an adequate and independent

state law ground precluding relief.

Pursuant to NRS 34.726(1):

Unless there is good cause shown for delay, a petition that

challenges the validity of a judgment or sentence must be

filed within 1 year of the entry of the judgment of

conviction or, if an appeal has been taken from the

judgment, within 1 year after the Supreme Court issues its

remittitur. For the purposes of this subsection, good cause

for delay exists if the petitioner demonstrates to the

satisfaction of the court:

(a) That the delay is not the fault of the petitioner; and

(b) That dismissal of the petition as untimely will unduly

prejudice the petitioner.

The one-year time bar of NRS 34.726 is strictly construed. Gonzales v. State,

118 Nev. 590, 593-596, 53 P.3d 901, 902-904 (rejected post-conviction petition filed

two days late pursuant to the “clear and unambiguous” provisions of NRS

34.726(1)). Further, the district courts have a duty to consider whether

postconviction claims are procedurally barred. State v. Eighth Judicial District Court

(Riker), 121 Nev. 225, 234, 112 P.3d 1070, 1076 (2005). The Nevada Supreme Court

9

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has found that “[a]pplication of the statutory procedural default rules to

postconviction habeas petitions is mandatory,” noting:

Habeas corpus petitions that are filed many years after

conviction are an unreasonable burden on the criminal

justice system. The necessity for a workable system

dictates that there must exist a time when a criminal

conviction is final.

Id. at 231, 112 P.3d at 1074. Additionally, the Nevada Supreme Court has held that

procedural bars “cannot be ignored when properly raised by the State.” Id. at 233,

112 P.3d at 1075. The Nevada Supreme Court has granted no discretion to the district

courts regarding whether to apply the statutory procedural bars. The Nevada

Supreme Court has held that the “clear and unambiguous” provisions of NRS

34.726(1) demonstrate an “intolerance toward perpetual filing of petitions for relief,

which clogs the court system and undermines the finality of convictions.” Pellegrini

v. State, 117 Nev. 860, 875, 34 P.3d 519, 529 (2001). For cases that arose before

NRS 34.726 took effect on January 1, 1993, the deadline for filing a petition

extended to January 1, 1994. Id. at 869, 34 P.3d at 525.

Here, remittitur issued from Petitioner’s direct appeal on February 12, 1988.

This means that Petitioner had until January 1, 1994, to file a timely habeas petition.

Petitioner’s underlying Petition was filed on October 5, 2016, over 18 years after

remittitur issued and in excess of the one-year time frame. Therefore, Petitioners’

claims are time barred and review by this Court should be precluded.

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Even if the one-year rule did not begin to run until Petitioner’s new issue was

available, his claims are still time barred. Petitioner’s contention is that appellate

courts should be precluded from reweighing aggravating circumstances against

mitigating circumstances to uphold a death sentence on appeal. Petitioner premises

this contention upon Hurst v. Florida, 577U.S.__,__, 136 S. Ct. 616 (2016). Petition

4-6. It is indisputable that Hurst was published in 2016; however, Hurst was merely

an application of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002). Hurst, 577

US. at__, 136 S. Ct. at 621-22 (“[t]he analysis the Ring Court applied to Arizona’s

sentencing scheme applies equally to Florida’s”). Ring was published on June 24,

2002. As such, this claim is time barred because Petitioner failed to raise it within

one year of Ring’s publication. The district court judge correctly applied the oneyear time bars in denying the petitions below.

Further, NRS 34.800 recognizes that a post-conviction petition should be

dismissed when delay in presenting issues would prejudice the State in responding

to the petition or in retrial. NRS 34.800(1). NRS 34.800(2) creates a rebuttable

presumption of prejudice to the State if “[a] period of five years [elapses] between

the filing of a judgment of conviction, an order imposing sentence of imprisonment

or a decision on direct appeal of a judgment of conviction and the filing of a petition

challenging the validity of a judgment of conviction.” See also, Groesbeck v.

Warden, 100 Nev. 259, 260, 679 P.2d 1268, 1269 (1984), superseded by statute as

1]

1: APPELLATE WPDOCS SECRETARY US S.CT HOWARD. SAMUEL, 19-7080. ST'S OPP TO CERT. PET..DOCX

recognized by, Hart v. State, 116 Nev. 558, | P.3d 969 (2000) (“petitions that are

filed many years after conviction are an unreasonable burden on the criminal justice

system. The necessity for a workable system dictates that there must exist a time

when a criminal conviction is final.”).

To invoke the presumption, the statute requires that the State specifically

plead presumptive prejudice. NRS 34.800(2). The State raised this bar in its

Response and Motion to Dismiss. More than 5 years has passed since remittitur

issued from Petitioner’s direct appeal on February 12, 1988. Indeed, over 30 years

have passed since Petitioner’s direct appeal was final. As such, the State pled

statutory laches under NRS 34.800(2) and prejudice under NRS 34.800(1) against

his Fifth Petition. After such a passage of time, the State is prejudiced in its ability

to answer this Petition and retry the penalty-phase. If Petitioner’s fifth go around on

state post-conviction review was not dismissed or denied on the procedural bars, the

State would have been forced to track down witnesses who may have died or retired

in order to prove a case that is more than three decades old. Assuming witnesses are

available, their memories have certainly faded and they will not present to a jury the

same way they did in the 1983. The district court was correct in basing dismissal of

the petition in part on NRS 34.800.

Moreover, claims that could have been raised on direct appeal or in a prior

petition are barred under NRS 34.810(1)(b). The failure to raise grounds for relief at

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the first opportunity is an abuse of the writ. NRS 34.810(2). Additionally, petitions

that re-raise previously rejected complaints must be dismissed. Id. Nevada law

dictates that all claims appropriate for direct appeal must be pursued on direct appeal

or they will be “considered waived in subsequent proceedings.” Franklin v. State,

110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994), disapproved on other grounds,

Thomas v. State, 115 Nev. 148, 979 P.2d 222 (1999). The Nevada Supreme Court

has emphasized that: “[a] court must dismiss a habeas petition if it presents claims

that either were or could have been presented in an earlier proceeding, unless the

court finds both cause for failing to present the claims earlier or for raising them

again and actual prejudice to the petitioner.” Evans v. State, 117 Nev. 609, 646-47,

29 P.3d 498, 523 (2001) (emphasis added). Where a claim arises after direct appeal,

a petitioner has one year in which to file a petition alleging the claim or it too is

barred. Rippo v. State, 132 Nev. 95, 101, 368 P.3d 729, 733 (2016) (“[A] petition ...

has been filed within a reasonable time after the ... claim became available so long

as it is filed within one year after entry of the district court’s order disposing of the

prior petition or, if a timely appeal was taken from the district court’s order, within

one year after this court issues its remittitur.”).

Petitioner’s Hurst claim is barred by NRS 34.810(1)(b)(2) as waived and by

NRS 34.810(2) as an abuse of the writ since it was not raised within a year of when

it became available to him. Petitioner’s contention is that a new penalty hearing is

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required because of Hurst. Petition 8. It is indisputable that Hurst was published in

2016; however, Hurst was merely an application of Ring. Hurst, 577 U.S. at__, 136

S. Ct. at 621-22 (“{t]he analysis the Ring Court applied to Arizona’s sentencing

scheme applies equally to Florida’s”). Ring was published on June 24, 2002.

Petitioner’s failure to raise this claim by June 24, 2003, amounts to a waiver.

Petitioner could have raised their Ring complaint during the litigation of his prior

petitions or could have filed an additional petition raising this contention. This claim

could have been presented to the Nevada Supreme Court at any point after June 24,

2002. Petitioner’s failure to do so renders his claim procedurally barred under NRS

34.810.

Certiorari should be denied because Petitioner’s delay in raising these

arguments amounts to an adequate and independent state law ground precluding

relief. “This Court will not review a question of federal law decided by a state court

if the decision is sustainable on a state law ground that is independent of the federal

question and adequate to support the judgment.” Lee v. Kemna, 534 U.S. 362, 375,

122 S. Ct. 877, 885 (2002); Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct.

2546, 2553-54 (1991). This rule applies whether the state law ground is substantive

or procedural. Id. The adequate state ground doctrine applies to bar federal review

when the state court declines to address an inmate’s federal claims because the

inmate had failed to meet state procedural requirements.

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b. Petitioner has failed to present an important federal question.

Petitioner argues that Hurst held the weighing determination, like the finding

of an aggravating circumstance, constitutes an “element” of the offense that must be

proven by the State beyond a reasonable doubt. This interpretation of Hurst is

farfetched and disingenuous. It is one thing to argue for an extension of law based

on existing precedent, but quite another to misrepresent the holding of a case.

Counsel’s mischaracterization of the holding of Hurst strains the borders of candor

to the court.

This Court summarized its holding in Hurst in the first two paragraphs of the

opinion thusly:

A Florida jury convicted Timothy Lee Hurst of

murdering his coworker, Cynthia Harrison. A penaltyphase jury recommended that Hurst’s judge impose a

death sentence. Notwithstanding this recommendation,

Florida law required the judge to hold a separate hearing

and determine whether sufficient aggravating

circumstances existed to justify imposing the death

penalty. The judge so found and sentenced Hurst to death.

We hold this sentencing scheme unconstitutional.

The Sixth Amendment requires a jury, not a judge, to find

each fact necessary to impose a sentence of death. A jury’s

mere recommendation is not enough.

Hurst, 577 U.S. at__, 136 S. Ct. at 619. Hurst does not cite to the reasonable doubt

standard because its holding only concerns the identity of the fact finder, not the

standard of proof. The holding of Hurst is founded upon the Sixth Amendment right

to a jury, not the Fourteenth Amendment Due Process requirement for proof beyond

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a reasonable doubt. Hurst is silent on that issue. On remand, the Florida Supreme

Court interpreted Hurst as simply requiring that all critical findings necessary to

imposition of the death penalty must be found by the jury, not the judge. Hurst v.

State, 202 So. 3d 40, 44 (Fla. 2016) (“In capital cases in Florida, these specific

findings required to be made by the jury include the existence of each aggravating

factor that has been proven beyond a reasonable doubt, the finding that the

aggravating factors are sufficient, and the finding that the aggravating factors

outweigh the mitigating circumstances”). After Hurst, Florida now requires all

necessary findings to be made by a jury rather than a judge, but still only applies the

reasonable doubt standard to the existence of the aggravating factors, not the

weighing. Id.

In Petitioner’s case, a jury made all necessary findings for the death penalty,

including weighing, in full compliance with Hurst, which is nothing more than an

application of Ring. Accordingly, Hurst does not represent an intervening change in

law which requires discretionary intervention by this Court.

Many other state courts have rejected an interpretation of Hurst that would

extend the beyond-a-reasonable-doubt standard to the weighing determination:

Importantly, the [Hurst] opinion did not hold that

weighing must be done beyond a reasonable doubt. Indeed

Hurst says nothing at all about whether the weighing of

aggravating and mitigating circumstances must be

determined beyond a reasonable doubt. And Leonard

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points to no such discussion. Instead he parses the

language of Hurst to infer the Court's meaning.

Leonard v. State, 73 N.E.3d 155, 169 (Ind. 2017). Evans v. State, No. 2013-DP-

01877-SCT, 2017 Miss. LEXIS 249, at *78 (June 15, 2017) (“The Hurst decision

did not rest upon or even address the beyond-a-reasonable-doubt standard”); People

v. Rangel, 62 Cal.4th 1192, 1235, 367 P.3d 649, 681 (2016), cert. denied, 2017 U.S.

LEXIS, 85 U.S.L.W. 3325 (2017) (“The death penalty statute . . . does not require .

. . findings beyond a reasonable doubt . . . that the aggravating factors outweighed

the mitigating factors... .. Nothing in Hurst . . . affects our conclusions in this

regard.”); People v. Jones, 3 Cal. Sth 583, 618-619, 220 Cal.Rptr.3d 618, 398 P.3d

529 (2017); Ex parte Bohannon, 222 So.3d 525, 532-533 (Ala. 2016), cert. denied,

2017 U.S. LEXIS 871 (2017) (“Ring and Hurst require only that the jury find the

existence of the aggravating factor that makes a defendant eligible for the death

penalty—the plain language in those cases requires nothing more and nothing

less.”); State v. Mason, 2016 Ohio08400 { 42 (Ohio App.3d) (“Hurst did not expand

Apprendi and Ring.”). Petitioner’s expansive reading of Hurst is undermined by the

denial of certiorari in Rangel and Bohannon. This Court allowed the rejection of

Petitioner’s argument by the California and Alabama Supreme Courts to stand. If

this Court intended the overbroad view of Hurst suggested by Petitioner, certiorari

would have been granted to give guidance to the lower courts.

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Additionally, several federal district courts in Nevada have examined the issue

in at least 6 capital cases so far and consistently held that Hurst cannot be “stretched”

so far as to conclude that the reasonable doubt standard applies to the weighing

process:

Leonard's claim extends the holding in Hurst well beyond

its cognizable bounds. Neither Ring nor Hurst holds that

the weighing aggravating and mitigating circumstances is

an "element" that must be submitted the jury.

Leonard v. Filson, D.Nev. No. 2:99-cv-0360-MMD-CWH, 2017 U.S. Dist. LEXIS

132801, at *6 (Aug. 18, 2017); see also Emil v. Filson, D.Nev. No. 3:00-cv-00654-

KJD-VPC, 2017 U.S. Dist. LEXIS 175609, at *3-5 (Oct. 22, 2017) (“Emil's claim

extends the holding in Hurst well beyond its cognizable bounds. Hurst does not hold,

as Appellant claims, that the weighing aggravating and mitigating circumstances is

an ‘element’ that must be submitted to the jury”; Hernandez v. Filson, D.Nev. No.

3:09-cv-00545-LRH-WGC, 2017 U.S. Dist. LEXIS 147103, at *3-6 (Sep. 11, 2017)

(“Hernandez's claims extend the holding in Hurst beyond its cognizable bounds.

Neither Ring nor Hurst holds that the weighing of aggravating and mitigating

circumstances is an ‘element’ that must be submitted to the jury, or to which the

reasonable doubt standard must apply”).

Well before Hurst, every federal circuit court to have addressed the argument

that the reasonable doubt standard applies to the weighing of aggravating and

mitigating circumstances has rejected it, reasoning that the weighing process

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constitutes not a factual determination, but a complex moral judgment. See United

States v. Gabrion, 719 F.3d 511, 533 (6th Cir. 2013); United States v. Runyon, 707

F.3d 475, 516 (4th Cir. 2013); United States v. Fields, 516 F.3d 923, 950 (10th Cir.

2008); United States v. Mitchell, 502 F.3d 931, 993-94 (9th Cir. 2007); United States

v. Sampson, 486 F.3d 13, 31 (1st Cir. 2007); United States v. Fields, 483 F.3d 313,

345-46 (Sth Cir. 2007); United States v. Purkey, 428 F.3d 738, 750 (8th Cir. 2005).

Under Petitioners’ interpretation of Hurst, all of these cases would now be overruled;

however, they all remain good law even though Hurst was published almost two

years ago. The fact that not one of these leading cases on the issue was even

mentioned by the Court in Hurst or since been overruled belies Petitioners’ assertion

that Hurst addressed such an issue. Nor did this Court in Hurst overrule or even

discuss its own authority that weighing is “a moral decision that is not susceptible to

proof.” Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934 (1989); Caldwell v.

Mississippi, 472 U.S. 320, 340 n. 7, 105 S. Ct. 2633 (1985); see also United States

vy. Sampson, 2016 U.S. Dist. LEXIS 72060 (D. Mass. June 2, 2016) (holding that

Kansas _v. Carr undermines the claim that Hurst requires that the weighing of

mitigating and aggravating factors be subject to the "beyond a reasonable doubt"

standard). Clearly, Petitioner’s interpretation of Hurst is against the great weight of

authority.

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Another strong reason to reject Petitioner’s dubious construction of Hurst is

how this Court dealt with its own precedent in Hurst. Hurst cited Walton v. Arizona,

497 U.S. 639, 650, 110 S. Ct. 3047, 3055 (1990), without overruling it. Hurst, 577

USS. at__, 136 S. Ct. at 622. This is telling because Petitioner’s view that Hurst

requires application of the beyond a reasonable doubt standard to the weighing of

aggravating against mitigating circumstances is in direct conflict with Walton:

So long as a State’s method of allocating the burdens of

proof does not lessen the State’s burden to prove every

element of the offense charged, or in this case to prove the

existence of aggravating circumstances, a defendant’s

constitutional rights are not violated by placing on him the

burden of proving mitigating circumstances sufficiently

substantial to call for leniency.

Walton, 497 U.S. at 650, 110 S. Ct. at 3055 [emphasis added]. If this Court intended

the holding Petitioner attributes to Hurst, it would have addressed this direct conflict.

Indeed, where Walton conflicted with Ring, this Court squarely addressed the issue

and overruled Walton in part. Ring, 536 U.S. at 609, 122 S. Ct. at 2443 (“we overrule

Walton to the extent that it allows a sentencing judge ... to find an aggravating

circumstance necessary for imposition of the death penalty.”).

In Rauf, the Delaware death penalty scheme was held unconstitutional

because it allowed for a judge to find the existence of an aggravating circumstance

and to conduct weighing and did not require juror unanimity. Rauf v. State, 145 A.3d

430 (Del. 2016). While these decisions were “prompted” in part by the Hurst

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decision, the analysis actually required the court “to interpret not simply the Sixth

Amendment itself, but the complex body of case law interpreting it,” leading to “a

diversity of views on exactly why the answers to the questions are what we have

found them to be.” Id. Specifically, Question 4 which applies the reasonable doubt

burden of proof to the weighing process, there’s nothing in the Rauf opinion which

cites to the Hurst case as the basis or reason for that particular decision. Id. In fact,

the concurrences suggest that the beyond-a-reasonable-doubt standard applies to

weighing because of historical analysis and the Delaware Constitution rather than as

a direct requirement of Hurst. Id. at 481-2 (Strine, concur), 484-5 (Holland, concur).

Under Nevada law, weighing is only part of death “eligibility” to the extent a

jury is precluded from imposing death if it determines that the mitigating

circumstances are sufficient to outweigh the aggravating circumstances. Lisle v.

State, 131 Nev. 356, 365-66, 351 P.3d 725, 732 (2015). But this does not mean that

weighing is part of the narrowing aspect of capital punishment the same as

aggravating circumstances. Id. Instead, weighing, by definition, is part of the

individualized consideration that is the hallmark of what the Supreme Court has

referred to as the “selection” phase of the capital sentencing process. Id. Petitioner

ignores that Nevada’s use of the term, “eligibility,” unlike the federal courts, has

historically referred to both narrowing and individualized selection. Id. A State

Supreme Court’s interpretation and construction of its own state statutes is binding

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