NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL HOWARD, No. 10-99003
Petitioner-Appellant, D.C. No.
2:93-cv-01209-LRH-LRL
v.
RENEE BAKER, Warden, Director of MEMORANDUM*
Nevada Department of Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted January 9, 2023
Pasadena, California
Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges.
Samuel Howard appeals from the district court’s denial of his pre-
Antiterrorism and Effective Death Penalty Act habeas petition. We have
jurisdiction under 28 U.S.C. §§ 1291, 2253, and we affirm. We decline Howard’s
request to expand the certificate of appealability (“COA”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. The district court rejected, but certified for appeal, Howard’s claim
that his lack of communication with and distrust in his attorneys from the public
defender’s office amounted to a constructive denial of counsel based on an
irreconcilable conflict. In rejecting Howard’s claim, the district court found that
the alleged conflict “was one of Howard’s own making” and that Howard’s
“refusal to cooperate with counsel was unreasonable.”1 These findings were not
clearly erroneous given the record. See Crittenden v. Chappell, 804 F.3d 998,
1006 (9th Cir. 2015).
Howard’s refusal to cooperate with counsel began before most of the facts
giving rise to the alleged distrust occurred. Howard’s counsel complied with the
court’s orders that prohibited any attorneys in the public defender’s office with
personal conflicts to be involved in the case. And the record supports that Howard
selectively chose when to cooperate with his counsel. Based on these
circumstances, the district court could reasonably conclude that Howard
manufactured the alleged conflict.
1
We also note that the Nevada Supreme Court stated that the facts did not
“objectively justify Howard’s distrust of his attorney.” Howard v. State, 729 P.2d
1341, 1342 (Nev. 1986) (per curiam). Howard argues that such statement was not
a factual finding subject to deference. See Burton v. Davis, 816 F.3d 1132, 1140 &
n.4 (9th Cir. 2016). We need not decide whether the Nevada Supreme Court’s
statement was a factual finding given the district court’s clear factual findings.
2
Because the district court reasonably found that the alleged conflict was of
Howard’s own making, Howard was not constructively denied counsel. Daniels v.
Woodford, 428 F.3d 1181, 1197–98 (9th Cir. 2005). Instead, the dispositive
question is: “Did counsel provide constitutionally adequate counsel according to
the standards established in Strickland [v. Washington, 466 U.S. 668 (1984)]?”
Michaels v. Davis, 51 F.4th 904, 939 (9th Cir. 2022). As Howard makes no
argument that his attorneys were constitutionally inadequate, we affirm the district
court’s denial of this claim.
2. The district court also rejected, but certified for appeal, Howard’s
claim that his trial counsel was ineffective for failing to object to the premeditation
instruction, which failed to define deliberation as a distinct element of first-degree
murder.2 Howard’s claim fails because, even assuming this was an error on
counsel’s part, Howard cannot show the required Strickland prejudice: “that there
is a reasonable probability that, but for [the error], the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.
2
The precise issue before the district court was whether Martinez v. Ryan, 566
U.S. 1 (2012), excused the procedural default of this trial-level ineffective
assistance claim. Instead of conducting a strict Martinez analysis, the district court
determined that the ineffective assistance claim failed on the merits under
Strickland. Because we agree, and because a successful Martinez claim requires a
showing of a reasonable probability that the ineffective assistance claim would
have succeeded under Strickland, Howard necessarily cannot satisfy Martinez. See
Runningeagle v. Ryan, 825 F.3d 970, 982–83 (9th Cir. 2016).
3
There is no reasonable probability that the result would have been different
had the court provided a separate deliberation instruction, as the record makes clear
that the jury convicted Howard under the alternative felony murder theory. See
Riley v. McDaniel, 786 F.3d 719, 726 (9th Cir. 2015) (an instructional error can be
considered harmless if the court is “reasonably certain that the jury did convict him
based on the valid felony murder theory” (cleaned up) (quoting Babb v. Lozowsky,
719 F.3d 1019, 1035 (9th Cir. 2013), overruled on other grounds by White v.
Woodall, 572 U.S. 415, 421 (2014))).
The evidence that Howard killed the victim during a robbery was
overwhelming. Indeed, it was so strong that the prosecutor focused almost
exclusively on the felony murder theory during closing. The jury also returned a
special verdict during the penalty phase that found the “murder was committed
while the defendant was engaged in the commission of any robbery.”3 Given the
record, we are reasonably certain that the jury convicted Howard under the felony
murder theory. Thus, Howard’s ineffective assistance claim fails for lack of
prejudice.
3
Although the Nevada Supreme Court held that this finding could not be used as
an aggravating circumstance supporting Howard’s death sentence, see Howard v.
State, No. 57469, 2014 WL 3784121, at *6 (Nev. July 30, 2014), it still supports
that the jury convicted him under the felony murder theory. The Nevada Supreme
Court has since vacated Howard’s death sentence. See Howard v. State, 495 P.3d
88 (Nev. 2021).
4
3. Howard seeks to expand the COA to include two uncertified issues:
(1) whether the premeditation instruction was unconstitutional; and (2) whether
Martinez excuses the procedural default of his claim that counsel was ineffective
for failing to challenge Howard’s competency to stand trial. See 9th Cir. R. 22-
1(e).
As to the first uncertified issue, the district court determined in 2008 that the
claim was procedurally barred from review. Even so, Howard contends that we
can consider the merits of the claim because the Nevada Supreme Court addressed
the merits in an intervening 2014 decision. See Howard, 2014 WL 3784121. We
disagree. Even were we to construe part of the Nevada Supreme Court’s decision
as a merits determination, the court separately determined that the claim was
barred under state procedural rules. Id. at *1–2. For that reason, we are barred
from considering the claim. See Loveland v. Hatcher, 231 F.3d 640, 643–44 (9th
Cir. 2000).
We also decline to expand the COA to include the second uncertified issue.
As the district court correctly determined, even if counsel erred by failing to
challenge Howard’s competency, Howard cannot establish the requisite Strickland
prejudice. No reasonable jurist would find that conclusion debatable given
Howard’s failure to produce any persuasive evidence that he would have been
5
found incompetent to stand trial. See Slack v. McDaniel, 529 U.S. 473, 484
(2000).
AFFIRMED.
6