Howard v. Dzurenda

• Court: District Court, D. Nevada
• Decided: March 21, 2022
• Docket: 2:19-cv-00500
• Status: Unknown

Opinion

2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 REGINALD C. HOWARD, Case No. 2:19-cv-00500-GMN-BNW 10 Petitioner, | ORDER 11 V. 12 JAMES DZURENDA,' et al., 13 Respondents. 14 15 Reginald C. Howard’s pro se 28 U.S.C. § 2254 amended habeas corpus petition 16 is before the court for final adjudication on the merits (ECF No. 10). As discussed 17 below, the petition is denied. 18 I. Background & Procedural History 19 In July 2015, a jury convicted Howard of burglary (exhibit 43).2 The state district 20 court adjudicated him a habitual criminal and sentenced him to 10 years to life, 21 consecutive to a sentence previously imposed in a different case. Exh. 47. Judgment of 22 conviction was entered on December 2, 2015. Exh. 50. 23

25 ' According to Howard’s petition as well as the state corrections department’s inmate locator page, he is incarcerated at High Desert State Prison. The department’s website reflects Calvin Johnson 26 ~~ ~+is the warden for that facility. At the end of this order, the court directs the clerk to substitute Calvin Johnson for prior respondent James Dzurenda, under, inter alia, Rule 25(d) of the Federal Rules 27 of Civil Procedure. 28 2 Exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 21, and are found at ECF Nos. 22-28, 30.

1 The Nevada Court of Appeals affirmed Howard’s conviction in 2017 and affirmed the denial of his state postconviction habeas corpus petition in 2018. Exhs. 70, 91. 3 Howard dispatched his federal habeas corpus petition for filing in March 2019 4 (ECF No. 4). Soon after, he filed an amended petition (ECF No. 10). Respondents have 5 now answered the remaining claims (ECF No. 43). Howard filed a reply and a 6 supplemental reply (ECF Nos. 46, 46). The court has considered all briefing. 7 ll. Legal Standard 8 AEDPA Standard of Review 9 28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty 10 (AEDPA), provides the legal standards for this court's consideration of the petition in 11 _ this case: 12 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with 13 respect to any claim that was adjudicated on the merits in State court 14 proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an 15 unreasonable application of, clearly established Federal law, as 16 determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable 17 determination of the facts in light of the evidence presented in the State court proceeding. 18 49 The AEDPA “modified a federal habeas court’s role in reviewing state prisoner 20 applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court 21 ~ convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 22 685, 693-694 (2002). This court’s ability to grant a writ is limited to cases where “there is 23 ~+=no possibility fair-minded jurists could disagree that the state court's decision conflicts 24 with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The 25 Supreme Court has emphasized “that even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” /d. (citing Lockyer v. Andrade, 538 27. ~=~2U..S.. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating

1 state-court rulings, which demands that state-court decisions be given the benefit of the 2 doubt”) (internal quotation marks and citations omitted). 3 A state court decision is contrary to clearly established Supreme Court precedent, 4 within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court 6 confronts a set of facts that are materially indistinguishable from a decision of [the 7 Supreme Court] and nevertheless arrives at a result different from [the Supreme 8 Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 9 405-06 (2000), and citing Bell, 535 U.S. at 694. 10 A state court decision is an unreasonable application of clearly established Supreme 11 Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies 12 the correct governing legal principle from [the Supreme Court's] decisions but 13. unreasonably applies that principle to the facts of the prisoner's case.” Lockyer, 538 14. U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause 15 requires the state court decision to be more than incorrect or erroneous; the state 16 _court’s application of clearly established law must be objectively unreasonable. /d. 17 (quoting Williams, 529 U.S. at 409). 18 To the extent that the state court’s factual findings are challenged, the 19 “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas 20_~—svreview. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause 21 ~~ requires that the federal courts “must be particularly deferential” to state court factual 22 determinations. /d. The governing standard is not satisfied by a showing merely that the 23 state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires 24 substantially more deference: 25 .... [[]Jn concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we 26 would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate 27 panel, applying the normal standards of appellate review, could not 28 reasonably conclude that the finding is supported by the record.

4 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see also Lambert, 393 9 F.3d at 972. 3 Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be 4 correct unless rebutted by clear and convincing evidence. The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas 6 relief. Cullen, 563 U.S. at 181. 7 3 lil. Instant Petition

9 a. Claims Raised on Direct Appeal 10 Ground 12° 11 Howard asserts that the trial court violated his Fifth, Sixth, and Fourteenth 12 Amendment right to effective assistance of counsel when it allowed him to represent 13 himself at trial (ECF No. 10, p. 41). Essentially, this is a claim that Howard did not 14 forego his right to counsel Knowingly and intelligently. 15 A criminal defendant “may waive his Constitutional right to assistance of counsel 16 if he knows what he is doing, and his choice is made with eyes open.” Adams v. U.S. ex 17 rel. McCann, 317 U.S. 269, 279 (1942) The United States Supreme Court held in Faretta v. California: 19 It is undeniable that in most criminal prosecutions defendants could 20 better defend with counsel’s guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by 21 counsel, the potential advantage of a lawyer’s training and experience can 29 be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is 23 not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. 24 Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will 25 bear the personal consequences of a conviction. It is the defendant, 6 therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own 27 28 3 The court considers the remaining grounds for relief out of order.

defense ultimately to his own detriment, his choice must be honored out of 1 “that respect for the individual which is the lifeblood of the law.” 2 422 U.S. 806, 834 (1975). The Court explained that a defendant's “technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the 4 tight to defend himself. /d. at 836. Denial of a defendant's timely and unequivocal 5 motion to represent himself violates the Sixth Amendment. /d. at 818-819. 6 The record reflects that the state court repeatedly attempted to warn Howard of 7 the challenges and dangers of self-representation. See, e.g., exhs. 4, 6, 33. At an 8 August 2014 pretrial hearing, Howard informed the court that he wished to represent 9 himself. Exh. 2, pp. 7-14. The court questioned him about whether he fully understood 10 his rights and what representing himself entails. Howard indicated that he understood, but he ultimately asked the court to appoint him alternate counsel, which the court did. 12 In November 2014, Howard again stated that he wanted to represent himself, and the 13 district court conducted a Faretta canvas. Exh. 7. The court questioned Howard in 14 detail, including regarding his education, legal knowledge and training, and why he 15 wished to represent himself. 16 COURT: You do realize an attorney is trained in the law and has the skill 17 and experience to properly conduct a defense of your case? 18 DEFENDANT: | understand that. 19 COURT: An attorney knows the elements of the offense you have been 20 charged with and the possible defenses that may be presented on your behalf. 21 DEFENDANT: | understand, yes, Your Honor. 22 23 COURT: Criminal trials present difficult choices as to strategy and tactics and even attorneys can differ as to the proper defense to make in a case. 24 You are not trained to make these choices. An attorney knows the degree of proof that the State must meet to prove you’re guilty beyond a 25 reasonable doubt and by investigation and review of the State’s evidence it may be determined that the State cannot prove its case. You must 26 determine how to subpoena witnesses to testify on your behalf. Do you 27 know how to subpoena a witness? 28

DEFENDANT: Yes, Your Honor. Basically, there is really no witnesses in 1 this case. This is really a simple case | believe. 2 Exh. 7, pp. 6-7. 3 In response to the court’s questions, Howard identified lesser included offenses, 4 the elements of the charges against him, and the range of punishments, including habitual criminal treatment. He articulated his likely defenses. 6 COURT: Sir, do you know the difference between an opening statement 7 and a closing argument? 8 DEFENDANT: | understand that the opening statement is basically where I'm going to lay out what I’m going to intend to prove to the jury as far as 9 my defense. 10 COURT: What is a closing argument? 11 DEFENDANT: I’m going to try and sum it up as far as the evidence that 12 was presented in Court as far as the facts that were presented in Court to 13 basically break it into a picture in which that the jury can understand my point. 14 COURT: Do you know how to object to a question that may be improper? 15 DEFENDANT: | haven’t objected to a question that may be improper. |’m 16 not saying | can basically the correct way to take every objection. | may 17 not be responsive to every objection, but | believe | would be able - - the ones that are crucial to my case | should be able to object to. 18 19 Exh. 7, p. 10. Howard clearly articulated the rights he would surrender and 20 steadfastly maintained his wish to represent himself. The court concluded that he clearly 24 expressed his desire to represent himself and he knowingly, intelligently, and voluntarily 22 waived the right to counsel. 23 COURT: And you understand you have the right to legal representation and that you’re surrendering and giving up that right and you understand 24 the disadvantages of self representation? 25 DEFENDANT: | understand | would not be able to allege ineffective 26 assistance of counsel. That would be one disadvantage and because of where |’m being housed at this time | may have problems as far as getting 27 to the law library or other investigative researches that may be more prevalent to an attorney who has better access to legal cases and 28 whatnot.

1 COURT: And even knowing all of those disadvantages you still wish to 2 represent yourself, sir? 3 DEFENDANT: Yes, | do. 4 COURT: Well, it seems to me like you responded better to the questions contained in the Court’s canvass than many of the other individuals that 5 I've conducted this canvass of. So it looks to me like you’ve expressed 6 your desire to represent yourself. | guess we need a trial date. 7 Exh. 7, p. 12. 8 The Nevada Court of Appeals rejected this claim on direct appeal: 9 Howard first argues his actions at trial demonstrate he did not knowingly, intelligently, and voluntarily waive his right to counsel. Our law 10 requires that “to exercise the right to self-representation, a criminal 11 defendant must knowingly, intelligently, and voluntarily waive the right to counsel.” Hooks v. State, 124 Nev. 48, 53-54, 176 P.3d 1081, 1084 12 (2008). “We give deference to the district court’s decision to allow the 13 defendant to waive his right to counsel.” /d. at 55, 176 P.3d at 1085.

14 In determining whether a defendant’s waiver is valid, however, the critical question is not how well the defendant performed at trial, but 15 whether the defendant understood the risks of self-representation and competently and intelligently chose to represent himself. Graves v. State, 16 112 Nev. 118, 124, 912 P.2d 234, 238 (1996). To ensure the defendant's choice to represent himself is valid, the trial court should conduct a Faretta 17 canvass to inform the defendant of the risks and determine whether the 18 defendant knowingly, intelligently, and voluntarily waives his right. Hooks, 124 Nev. at 54-55, 176 P.3d at 1084- 85; see also SCR 253(1) (setting 19 forth the guidelines and procedures district courts should follow when a defendant requests self representation). When reviewing a criminal 20 defendant’s claim that his waiver was not valid, “we must consider the record as a whole, including any canvass by the district court.” Hooks, 124 21 Nev. at 55, 176 P.3d at 1085. 22 Howard did not include the transcript of his Faretta canvass in his 23 appellate record. It is the appellant’s responsibility to provide this court with an adequate appellate record, and we assume missing portions of the 24 record support the district court’s decision. See Cuzze v. Univ. & Cmty. Coll. Sys. of Nevada, 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). 25 Howard's failure to include this transcript effectively “hamstrings our 26 review’ of this issue. Thomas v. Hardwick, 126 Nev. 142, 147, 231 P.3d 1111, 1115 (2010) (discussing an appellant's failure to include the voir dire 27 transcript despite arguing error occurred during voir dire). We therefore do 38 not reverse on this basis.

1 Exh. 70, pp. 3-4. 5 Howard presents nothing to demonstrate that the Nevada Court of Appeals’ decision on federal ground 12 was contrary to, or involved an unreasonable application of, ° clearly established U.S. Supreme Court law, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court ° proceeding. 28 U.S.C. § 2254(d). The court notes that the state district court ° conducted a thorough canvass and that court’s determination is entitled to deference. Accordingly, relief on ground 12 is denied. ° Ground 11 ° Howard contends that the State violated his right to equal protection when it used peremptory challenges to exclude two African-American prospective jurors from the jury venire (ECF No. 10, p. 39). 13 Race-based peremptory challenges to excuse prospective jurors violate the Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. . 79 (1986). The United States Supreme Court requires a three-step procedure in reviewing a Batson claim: (1) the petitioner must make out a prima facie case “by ° showing that the totality of the relevant facts gives rise to an inference of discriminatory . purpose”; (2) the “burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes”; and (3) “[i]f a race-neutral "° explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination.” Johnson v. California, 545 U.S. 162, a" 168 (2005) (internal quotations and citations omitted). This is because the three-step review process is not intended “to be so onerous that a defendant would have to persuade the judge — on the basis of all the facts, some of which are impossible for the defendant to know with certainty — that the challenge was more likely than not the product of purposeful discrimination.” /d. Rather, to satisfy the first step, the defendant must produce “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” /d. at 170. A defendant may rely on “any other relevant

1 circumstances” to support an inference of discriminatory purpose. /d. at 169. The Ninth 2 Circuit Court of Appeals has held that statistical disparity can raise a prima facie case. 3 Williams v. Runnels, 432 F.3d 1102, 1107-10 (9" Cir. 2006) In Johnson, the court 4 emphasized that a defendant need only show “an inference of discriminatory purpose” 5 and could not be required to show that a “challenge was more likely than not the 6 _ produce of purposeful discrimination.” 545 U.S. at 170. 7 More recently, the Supreme Court reiterated the Johnson holding: 8 But when illegitimate grounds like race are in issue, a prosecutor 9 simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a 10 mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, 11 or an appeals court, can imagine a reason that might not have been 12 shown up as false. 13 Miller-El v. Dretke, 545 U.S. 231, 252 (2005). To “rebut an inference of 14 discriminatory purpose based on statistical disparity, the ‘other relevant circumstances’ 15 must do more than indicate that the record would support race-neutral reasons for the 16 questioned challenges.” Williams, 432 F.3d at 1108. 17 Howard raised a Batson challenge, arguing that the State improperly struck two 18 of the three black potential jurors on the basis of race. Exh. 37, pp. 151-158. The State 19 (Patrick Burns) responded: 20 MR. BURNS: Well, | don’t | don’t know that he’s established a 21 pattern, but assuming that he has, Your Honor and | can do a Miller-E/ analysis as well relative to Mr. Martin, who is number 239 on the jury. The 22 reason that Jurors number -- Juror numbers 231 and 235 have been 23 stricken is that they have either -- they have relatives who have been in the criminal justice system in serious ways. 24 In particular -- and there’s more specific things as to Mr. Gaddy. But 25 for Ms. Ross, starting with her, she volunteered that she had a -- she had been arrested and treated unfairly by police. She was arrested for 26 disorderly conduct and she was -- when she was questioning a police 27 officer for what appeared to be her belief that the police officer wrongfully maced her cousin. So, that in itself is a reason that we wouldn't want her 28

on the jury, because she thinks she’s been treated unfairly by police, and 1 that’s a non-race based, non-pretextual reason for that. 2 In addition, she indicates that pretty much --significant family 3 members have been in and out of the criminal justice system. She said that, my mom has been in and out of jail for the longest time. She says 4 that her brother is currently in prison for robbery. That’s a non-pretextual, non-race based reason we can be -- you know, to strike someone, 5 because they might have sympathy for people who have been accused of 6 crimes, because they have in their own personal life people who have been accused of that. 7 Now, Mr. Gaddy has a — there’s a related non-race based, non- 8 pretextual reason for striking Mr. Gaddy. And Your Honor will note that, of all the people on the jury, | spent the most time with him, and | was trying 9 to get explanations for a couple things. One, he shares the same thing 10 that Ms. Ross has, that he’s got a family member, a stepson, and he appeared that it was an important issue in the family that his wife’s son 11 was a murder defendant and is in prison for murder. 12 | couldn't really get a clear answer from him if he thought that he 13 was treated fairly, unfairly, or in between. He just kind of disclaimed any knowledge of it. But it was evident that that was an important thing in the 14 family. It's something that might lead him to be suspicious of the criminal justice system; it might also lead him to be sympathetic to people who are 15 accused of crimes. That’s one — that’s an important aspect that he and 16 Ms. Ross shared together. 17 Something that Mr. Gaddy had in addition, which gave us cause for concern, and | never really got a straight answer from him as to, you 18 know, how he felt about the prosecution and all that kind of stuff. | mean, | was sympathetic to it, but he didn't really explain. 19 The other thing is, he explained that his background in radio 20 originated basically doing philanthropic work for what sounded like at risk 24 youth. He also explained -- when he was talking about his job, he said, I'm a socially conscious person. | -- and | asked him | first asked him, okay, 22 you know, setting aside your job, do you have outlets for being a socially conscious person? He didn’t -- he didn’t answer that. He went back to 23 talking about his job, and how his job prevents him from getting out the kind of dealing with the types of issues that he finds interesting in terms of 24 being socially conscious. 25 So, | asked him that a second time, you know, well, setting aside 26 the job entirely, you Know, do you have outlets for this socially conscious - - being a socially conscious person? He didn’t -- he didn’t respond to that. 27 He didn’t give me a straight answer as to whether or not he had that or not. 28

Then we started talking about -- | asked him, well, you know, if your 1 job permitted you to send out some of the messages, deal with some of 2 the social issues that you think are really important, you know, what would those be? Again, | got no answer from him as to what those socially 3 conscious issues -- or he started to talk a little bit about the west side, which | know is the Hand Owens area, which | tended to think is an area 4 where a lot of people are accused of crime --well, | Know that from my 5 experience in prosecution. 6 So, I'm not getting these explanations for him as to why he’s a socially conscious person; how the fact his — the murder conviction of his 7 son has affected him and his views of the criminal justice system. I’m not comfortable with his responses, and that’s the reason why we elected, on 8 a totally non-pretextual, totally non-race based reason, to not have him on the jury. 9 10 And I'll go to the Miller-E/ analysis. Three African Americans on the jury, and then Mr. Martin, who is Juror number 239, had none of these 11 issues. He had -- he had a son that had a DUI issue, but talking to him, and his activities, his job, his work at the church, and all these things, his 12 association with COs, there were just none of those common similar 13 issues with Mr. Martin, who we are incredibly pleased to have on this jury, because we think he’s going to be a great juror. So, based on that, Judge, 14 there’s absolutely not a race based use of our peremptories under Batson, even assuming that he’s made a showing of a pattern. 15 16 Id. at 152-155. Howard responded by noting that the black juror the State did not

17 strike had also been falsely arrested for traffic tickets, and Howard argued that by the State’s logic, they should have struck that juror too. The State responded that 19 — that juror—who in fact had already paid the tickets before he was arrested—did 20 not seem bitter about the encounter, and therefore, the State did not find it to be 21 of concern. The state district court was satisfied that the State articulated race- 22 neutral bases for striking the two black jurors and denied Howard’s motion. /d. at 23 157-158. 24 25 The Nevada Court of Appeals rejected this claim finding that the record 26 supported the trial court’s decision to strike the prospective jurors. 27 We next consider whether the district court abused its discretion by denying Howard’s Batson challenge. When a party challenges a 28 peremptory strike and sets forth a prima facie case of discrimination, the

proponent of the strike must provide a race-neutral reason for the strike, 1 after which the district court must determine whether the party opposing 2 the strike established purposeful discrimination. Guitron v. State, 131 Nev. _, _, 350 P.3d 93, 103-04 (Ct. App. 2015). The proponent’s reason for 3 striking a juror “need not be either persuasive or plausible so long as it does not deny equal protection.” /d. The opponent's burden to show 4 discrimination is “a heavy one,” and this court gives the district court’s 5 factual findings "great deference." /d. at_, 350 P.3d at 104.

6 The record supports the district court’s decision. The struck jurors both had close family members who were or had been incarcerated. One 7 juror related a negative experience with law enforcement, and the other appeared to avoid revealing his feelings toward the criminal justice 8 system. Although Howard argued the State failed to strike a similarly 9 situated juror of a different race, the State readily distinguished this third juror by his forthright answers and his more neutral view of the criminal 10 justice system. Therefore, the district court did not abuse its discretion by denying the challenge. Exh. 70, pp. 4-5. 12 The State set forth specific, race-neutral bases for striking the two black jurors. 13 Howard has not shown that the Nevada Court of Appeals’ decision on federal ground 11 14 was contrary to, or involved an unreasonable application of, clearly established U.S. 18 Supreme Court law, or was based on an unreasonable determination of the facts in light 16 of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Federal 17 habeas relief is denied as to ground 11. 18 Ground 14 19 Howard claims that the State presented insufficient evidence to convict him of 20 burglary in violation of his Fifth, Sixth, and Fourteenth Amendment rights (ECF No. 7, 21 pp. 29-31). “The Constitution prohibits the criminal conviction of any person except upon 22 proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 309 23 (1979) (citing In re Winship, 397 U.S. 358 (1970)). On federal habeas corpus review of 24 a judgment of conviction pursuant to 28 U.S.C. § 2254, the petitioner “is entitled to 25 habeas corpus relief if it is found that upon the record evidence adduced at the trial no 26 rational trier of fact could have found proof of guilt beyond a reasonable doubt.” /d. at 27 324. “[T]he standard must be applied with explicit reference to the substantive elements 28

1 of the criminal offense as defined by state law.” /d. at 324 n.16. On habeas review, this 2 court must assume that the trier of fact resolved any evidentiary conflicts in favor of the 3 prosecution and must defer to such resolution. /d. at 326. Generally, the credibility of 4 witnesses is beyond the scope of a review of the sufficiency of the evidence. Schlup v. 5 Delo, 513 U.S. 298, 330 (1995). 6 Pursuant to NRS 205.060, burglary in Nevada is the entering of a building with the 7 — intent to commit larceny. The victim, Jonathan Gagne, testified that he was a tow-truck 8 driver. Exh. 38, pp. 26-71, 76-147.4, He was working on the night in question; he 9 stopped home at 1:30 a.m. to pick up his car because he and his wife were sharing one 10 caratthe time. His garage door opened manually, and he left it a few inches open so 11 that it would be easier to open when he returned in less than thirty minutes after 12 dropping the tow truck back at work. He noticed a green Jeep parked near his house 13. that he had never seen before. He then saw that his garage door was open, and 14. someone was standing inside. The man fled as Gagne pulled into the driveway; Gagne 15 thought he might have gone into the house, so he ran in to check on his family. Coming 16 back outside, Gagne saw that some of his tools, a weed eater, and a blower, all of which had been stored in the garage, were sitting out on the driveway. He went to put 18 them in the garage when he saw someone run out of his neighbor's yard. Gagne got in 19 his car, reversed out of his driveway, and could see the person running. The man ran to 20 __—scthe Jeep and started to drive away. Gagne tried to block him, but the man evaded him 21 ~~ and drove away. Gagne followed him while calling 911. He gave the 911 operator the 22 ‘license plate number. Gagne pursued him until the police pulled over the Jeep. The 23 police showed him Howard, and he confirmed that that was the man he saw in his 24 25 “ The court makes no credibility findings or other factual findings regarding the truth or falsity of evidence or statements of fact in the state court record. The court summarizes the same 26 solely as background to the issues presented in this case, and it does not summarize all such material. No assertion of fact made in describing statements, testimony, or other evidence in the 27 ~ state court constitutes a finding by this court. Any absence of mention of a specific piece of 08 emoence or category of evidence does not signify the court overlooked it in considering Goode’s

1 garage. Gagne also identified Howard at trial as the man he saw in his garage. Gagne 2 _ read from his statement to the police that night: “| am 100 percent positive that the guy 3 that you have was the one that was in my garage. The clothes are the same, and the 4 Jeep is the one that | seen by my house, and one he got in and | followed him to Jones 5 and Russell [streets].” /d. at 68. 6 On cross-examination, Gagne said that he identified Howard as the perpetrator 7 based on the car and his clothing. Howard questioned Gagne about inconsistencies in 8 his statements to the 911 operator; Gagne responded that he may have made 9 confusing, inconsistent, or incorrect statements in his frantic state as he pursued the 10 Jeep and worried at the same time if anyone else might be in or near his home where 11. his wife and newborn slept. 12 The Nevada Court of Appeals rejected this claim on direct appeal: 13 Howard’s argument that the evidence was insufficient is belied by the 44 record. Evidence is sufficient to support a verdict if “any rational trier of fact could have found the essential elements of the crime beyond a 15 reasonable doubt.” Higgs v. State, 126 Nev. 1, 11, 222 P,3d 648, 654 (2010) (quoting Rose v. State, 123 Nev. 194, 202, 163 P.3d 408, 414 16 (2007) (internal quotations omitted)). And, “it is the jury’s function, not that of the court, to assess the weight of the evidence and determine the 17 credibility of the witnesses.” Rose, 123 Nev. at 202-03, 163 P.3d at 414 18 (internal quotations omitted). Here, the prosecution presented evidence from the victim and the responding officers. Although some discrepancies 19 existed between the statements, the evidence was sufficient that a rational juror could find Howard guilty of burglary. [FN4] 20 [FN4: In reviewing the sufficiency of the evidence, this court considers the evidence before the trial court regardless of whether the evidence was 22 erroneously admitted, as this court cannot know what other evidence may have been offered had the contested evidence been excluded. Stephans 23 v. State, 127 Nev. 712, 721, 262 P.3d 727, 734 (2011). Thus, to the extent Howard argues this court should not consider certain evidence that may 24 have been erroneously admitted, we do not credit this argument.] 25 Exh. 70, pp. 5-6. 26 Howard fails to demonstrate that no rational juror could have found the essential 27 elements of the crime beyond a reasonable doubt. He has not shown that the Nevada 28 Court of Appeals’ decision that federal ground 14 lacks merit was contrary to, or an

unreasonable application of, clearly established federal law. Federal habeas relief, 2 _ therefore, is denied as to ground 14. 3 b. Ineffective Assistance of Counsel Claims 4 5 Three claims of ineffective assistance of appellate counsel (IAC) are before the 6 court. IAC claims are governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that a 8 petitioner claiming ineffective assistance of counsel has the burden of demonstrating 9 that (1) the attorney made errors so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the deficient performance 42 prejudiced the defense. Williams, 529 U.S. at 390-91 (citing Strickland, 466 U.S. at 43 687). To establish ineffectiveness, the defendant must show that counsel's 14 representation fell below an objective standard of reasonableness. /d. To establish 15 prejudice, the defendant must show that there is a reasonable probability that, but for 16 counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is “probability sufficient to undermine confidence in the outcome.” /d. Additionally, any review of the attorney’s performance must be “highly 20 deferential” and must adopt counsel's perspective at the time of the challenged conduct, 21 in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the 22 petitioner's burden to overcome the presumption that counsel’s actions might be 23 considered sound trial strategy. /d. 24 Ineffective assistance of counsel under Strickland requires a showing of deficient performance of counsel resulting in prejudice, “with performance being measured

against an objective standard of reasonableness, . . . under prevailing professional 28 norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations

4 omitted). When the ineffective assistance of counsel claim is based on a challenge to a 2 guilty plea, the Strickland prejudice prong requires a petitioner to demonstrate “that 3. there is a reasonable probability that, but for counsel’s errors, he would not have 4 pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 5 59 (1985). 6 If the state court has already rejected an ineffective assistance claim, a federal 7 3 habeas court may only grant relief if that decision was contrary to, or an unreasonable

9 application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). 49 There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. /d. 12 The United States Supreme Court has described federal review of a state supreme 13 court's decision on a claim of ineffective assistance of counsel as “doubly deferential.” 14 Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). 15 16 The Supreme Court emphasized that: “We take a ‘highly deferential’ look at counsel’s

17 performance .. . through the ‘deferential lens of § 2254(d).”” /d. at 1403 (internal 18 Citations omitted). Moreover, federal habeas review of an ineffective assistance of 19 counsel claim is limited to the record before the state court that adjudicated the claim on 20 the merits. Cullen, 563 U.S. at 181-84. The Supreme Court has specifically reaffirmed 2 the extensive deference owed to a state court's decision regarding claims of ineffective 22 assistance of counsel: 23 24 Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards 25 created by Strickland and § 2254(d) are both “highly deferential,” id. at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 26 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so, Knowles, 556 U.S. at 123. The Strickland standard is a 27 general one, so the range of reasonable applications is substantial. 556 U.S. at 124. Federal habeas courts must guard against the danger of 28 equating unreasonableness under Strickland with unreasonableness

under § 2254(d). When § 2254(d) applies, the question is whether there is 1 any reasonable argument that counsel satisfied Stricklana’s deferential 9 standard. Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance of 3 counsel must apply a ‘strong presumption’ that counsel’s representation was within the 4 ‘wide range’ of reasonable professional assistance.” /d. at 104 (quoting Strickland, 466 5 U.S. at 689). “The question is whether an attorney’s representation amounted to 6 incompetence under prevailing professional norms, not whether it deviated from best 7 practices or most common custom.” /d. (internal quotations and citations omitted). 8 Ground 3 9 Howard asserts that appellate counsel was ineffective in challenging the denial of his 10 motion to continue trial (ECF No. 10, pp. 13-15). At a status hearing on Wednesday, 11 July 8, 2015, Howard complained that he had asked the investigator specifically to take 12 photos of the area in the vicinity of Gagne’s house and the intersection where he was 13 arrested at night. Exh. 35, pp. 3-11. The investigator was present and informed the 14 court that the area in question was very dark at night, and he did not have the proper 15 equipment to take night photos. The State informed the court that it would not oppose 16 Howard calling the investigator as a witness to explain the difficulty and that the trial 17 could still proceed on Monday (July 13). Howard then had the following exchange with 18 the court: 19 20 COURT: You don't trust what, sir? m4 DEFENDANT: The investigator. | really don't trust him no more, you know. He told me Sunday he had the footage and everything then they 22 come and show me today he don't have it. Now he telling me, you know, my camera couldn't get it and all that. Well, all of that is throwing me off so 23 what | asking of the Court right now is for a continuance so | can hire attorneys so that we can go get the footage so we could get a real 24 investigator to go out there and get the footage so | can have it for my 25 defense. | really believe my defense need this because | believe the jury need to see that by the condition in which that - - were that night. 26 COURT: So now you're telling me you have the money to hire private 27 counsel. 28

DEFENDANT: | got to try and do something, you know what I'm 1 saying. | got to try and do something, Your Honor. You know, at this 2 moment | don't but | got to try and do something. | got to try to either tap into relatives or try to do something because | see right now that I’m put in 3 a predicament. 4 Exh. 35, p. 10. 5 The State opposed any continuance and reaffirmed that it had no objection to the 6 _ investigator testifying. The court denied the continuance: 7 I'm not inclined to give you a continuance. This case has a long, tortured history. This Court has bent over backward to accommodate you 8 with respect to representation, now non-representation, stand-by counsel. 9 This case is going to trial on Monday. 10 Id. at 11. 11 Howard called the investigator to testify at trial. Exh. 40, pp. 145-152. The 42 investigator testified that he was ultimately able to video the cul-de-sac area where 13 Gagne lived at night by using the headlights of two vehicles. He testified that there were «M0 streetlights and visibility was low. 15 Appellate counsel argued that the trial court’s denial of Howard’s motion for a 16 continuance violated his due process and fair trial rights (ECF No. 10, pp. 17-18). 17 Affirming the denial of Howard’s state postconviction petition, the Nevada Court of 18 Appeals held, in a cursory fashion, that he could not demonstrate prejudice with respect 19 to his claims regarding a continuance and a mistrial: 20 Howard claimed counsel was ineffective for failing to support two of his direct-appeal arguments with relevant case authority . . . Assuming, 21 without deciding, that counsel was deficient, Howard failed to support his 29 bare claims with specific factual allegations that, if true and not belied by the record, would have demonstrated he was prejudiced by any deficient 23 performance. We therefore conclude the district court did not err by denying Howard's petition without first conducting an evidentiary hearing. 24 See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984). 25 Exh. 91, pp. 2-3. 26 This claim is meritless. The court notes that the jury was shown photos of the 27 + area and the nighttime video. Gagne also specifically testified that there were no 28 streetlights, and it was very dark at night. Howard has not shown that the Nevada Court

1 of Appeals’ decision on federal ground 3 was contrary to or involved an unreasonable 2 application of Strickland or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). The 4 _ court denies habeas relief on ground 3. 5 Ground 1 6 Howard claims that his appellate counsel was ineffective for failing to challenge 7 anunduly suggestive “show-up” identification on appeal (ECF No. 10, pp. 3-6). 8 Appellate counsel must “examine the record with a view to selecting the most 9 promising issues for review.” Jones v. Barnes, 463 U.S. 745, 752 (1983). Although “it is 10 _ still possible to bring a Strickland claim based on counsel's failure to raise a particular 11. claim, .. . it is difficult to demonstrate that counsel was incompetent.” Smith v. Robbins, 12 5280U.S. 259, 288 (2000). Appellate counsel cannot be found to be ineffective for failure 13. to raise an issue that lacks merit. Miller v. Keeney, 882 F.2d 1428, 1434 (9" Cir. 1989). 14 “In most cases, an unpreserved trial error will not be a plainly stronger ground for 15 appeal than preserved errors. Thus, in most instances in which the trial court did not 16 _ rule on the alleged trial error (because it was not preserved), the prisoner could not 17 make out a substantial claim of ineffective assistance of appellate counsel . . .” Davila v. 18 Davis, 137 S. Ct. 2058, 2067 (2017) (Internal citations omitted). 19 With a “show-up” identification, courts generally inquire whether, under the 20 totality of the circumstances, “the confrontation conducted in the case was so 21 unnecessarily suggestive and conducive to irreparable mistaken identification that [the 22 defendant] was denied due process of law.” Stovall v. Denno, 388 U.S. 293, 301-02 23 (1967) abrogated on other grounds by Griffith v. Kentucky, 479 U.S. 314 (1987). Even if 24 the show-up was unnecessarily suggestive, the question is whether the identification is 25 nevertheless reliable. Manson v. Braithwaite, 432 U.S. 98, 114 (1977). In assessing the 26 ___— prejudicial effect from a suggestive procedure, the court considers factors including (1) 27 the witness’ opportunity to view the suspect at the time of the offense, (2) the witness’ 28 degree of attention, (3) the accuracy of the witness’ prior description, (4) the witness’

1 level of certainty at the show-up, and (5) the time between the crime and the show-up. 2 Neil v. Biggers, 409 U.S. 188, 199-200 (1972). 3 As discussed above, Gagne testified that he called 911 while pursuing the Jeep 4 and continued to follow it until the police pulled it over. Exh. 38. He stated that he 5 rushed home to ensure there were no other intruders and that his family was safe. 6 Police officers then transported him back to where they had apprehended Howard. 7 Gagne confirmed that that was the man that he had seen in his garage and that he had 8 watched run to the Jeep and drive off. He stated that he recognized Howard based on 9 his clothing and the car. 10 Howard did not object to or move to suppress or limit Gagne’s identification 11. testimony. He did not object to or move to suppress the testimony by two police officers 12 that Gagne identified Howard as the perpetrator at the show-up. See exh. 38, pp. 178- 13. 179; exh. 40, pp. 27-29. Howard thus failed to preserve the issue for appeal. 14 The Nevada Court of Appeals disagreed that appellate counsel was ineffective in 15 _ its order affirming the denial of his state habeas petition: 16 Howard claimed counsel was ineffective for failing . . . to challenge an allegedly suggestive show-up identification. Assuming, without 17 deciding, that counsel was deficient, Howard failed to support his bare 18 claims with specific factual allegations that, if true and not belied by the record, would have demonstrated he was prejudiced by any deficient 19 performance. We therefore conclude the district court did not err by denying Howard's petition without first conducting an evidentiary hearing. 20 See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984). 21 Exh. 91, pp. 2-3. 22 Even assuming, arguendo, that the show-up was unduly suggestive, there is no evidence that the identification was unreliable. Howard has failed to demonstrate that 24 the Nevada Court of Appeals’ decision on federal ground 1 was contrary to or involved 25 an unreasonable application of Strickland or was based on an unreasonable 26 determination of the facts in light of the evidence presented in the state court 27 proceeding. 28 U.S.C. § 2254(d). The court denies federal habeas relief on ground 1. 28

1 Ground 2 2 Howard argues that his appellate counsel was ineffective in handling the claim on 3 appeal that the state district court erred in denying his motion for mistrial (ECF No. 10, 4 _ pp. 8-11). He sought a mistrial because the State had a red file on counsel table during 5 trial that contained Howard’s criminal history. 6 The Supreme Court has reiterated repeatedly that trial judges may declare a 7 mistrial “whenever, in their opinion, taking all the circumstances into consideration, there 8 is amanifest necessity” for doing so. Renico v. Lett, 559 U.S. 766, 773-74 (2010). The 9 decision to declare a mistrial is left to the “sound discretion” of the judge, but “the power 10 ought to be used with the greatest caution, under urgent circumstances, and for very 11. plain and obvious causes.” /d; see also Illinois v. Somerville, 410 U.S. 458, 462 (1973); 12 Goriv. United States, 367 U.S. 364, 368 (1961). 13 Toward the end of trial, before closing arguments, Howard pointed out to the 14 court that the State had a red file on counsel table in view of the jury. Exh. 40, pp. 131- 15 132. The file was marked “R-O-P,” and the “O” was partially obscured by a sticker. The 16 State explained that a red file can signify several different things including repeat 17 offenders and murders. The State offered to move the file out of view. They also argued 18 that the jury would have no way of knowing the significance of the file color and would 19 thus not be able to draw any inference from it whatsoever. Howard moved for a mistrial. 20 + Thecourt had the State put the file away so that it was not visible to the jury. The court 21 ‘said it was unpersuaded that a mistrial was warranted and denied the motion. 22 Howard’s appellate counsel challenged the denial on appeal. Exh. 63, pp. 16-17. 23 As with the claim regarding the motion for continuance, the Nevada Court of Appeals 24 held, with little analysis, that Howard could not demonstrate prejudice: 25 Howard claimed counsel was ineffective for failing to support two of 26 his direct-appeal arguments with relevant case authority . . . Assuming, without deciding, that counsel was deficient, Howard failed to support his 27 bare claims with specific factual allegations that, if true and not belied by the record, would have demonstrated he was prejudiced by any deficient 28 performance. We therefore conclude the district court did not err by

denying Howard's petition without first conducting an evidentiary hearing. 1 See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984). 2 Exh. 91, pp. 2-3. 3 While the state appellate court only briefly addressed this claim, it cannot be said 4 that its decision on federal ground 2 was contrary to or involved an unreasonable 5 application of Strickland or was based on an unreasonable determination of the facts in 6 light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). 7 — Howard presented no evidence that the jury had any idea of the significance of the color 8 of the folder. He has shown no plain and obvious cause for a mistrial. Renico, 559 U.S. 9 at 773-74. Federal habeas relief is denied as to ground 2. 10 The petition, therefore, is denied in its entirety. 11 IV. Certificate of Appealability 12 This is a final order adverse to the petitioner. As such, Rule 11 of the Rules 13 Governing Section 2254 Cases requires this court to issue or deny a certificate of 14 appealability (COA). Accordingly, the court has sua sponte evaluated the claims within 15 the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. 16 Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). 17 Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has 18 made a substantial showing of the denial of a constitutional right." With respect to 19 claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists 20 would find the district court's assessment of the constitutional claims debatable or 21 wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 22 U.S. 880, 893 &n.4 (1983)). For procedural rulings, a COA will issue only if reasonable 23 jurists could debate (1) whether the petition states a valid claim of the denial of a 24 constitutional right and (2) whether the court's procedural ruling was correct. /d. 25 Having reviewed its determinations and rulings in adjudicating Howard’s petition, the 26 court finds that none of those rulings meets the Slack standard. The court therefore 27 declines to issue a certificate of appealability for its resolution of Howard's petition. 28

1 V. Conclusion 2 IT IS THEREFORE ORDERED that the petition (ECF No. 10) is DENIED. 3 IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 4 IT IS FURTHER ORDERED the Clerk of the Court is directed to substitute Calvin 5 Johnson for respondent Brian Williams. 6 IT IS FURTHER ORDERED that the Clerk enter judgment accordingly and close this 7 ~~ case. 8 9 10 DATED: 21 March 2022.

12 GLORIA M. NAVARRO 13 UN/YTED STATES DISTRICT JUDGE

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