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Nevada Supreme Court: Prisoner’s Claim He Is Now Actually Innocent of Death Penalty Sufficient to Overcome Proce-dural Bars to Habeas Relief

by Douglas Ankney

The Supreme Court of Nevada held that Samuel Howard’s claim that he is now actually innocent of the death penalty was sufficient to overcome procedural bars to habeas relief.

In 1983, Howard was convicted of robbery and murder with the use of a deadly weapon. The jury found as an aggravating circumstance that Howard had been previously convicted in 1979 in New York for a felony offense that involved the use or threat of violence to another person. Based on that aggravating circumstance, the jury sentenced Howard to death.

But in 2018, a New York court vacated the 1979 conviction and dismissed the indictment. Shortly thereafter, Howard filed a petition for a writ of habeas corpus claiming his death sentence constituted cruel and unusual punishment because the prior violent felony conviction was invalid due to the vacatur and dismissal of the New York offense. The district court denied the petition as procedurally barred and barred by statutory laches. Howard appealed.

The Nevada Supreme Court observed that because Howard filed his petition over one year after the remittitur issued on his direct appeal and because he filed it more than 25 years after the effective date of NRS 34.726, the petition was untimely. Further, the petition was successive because Howard had previously litigated five postconviction habeas petitions. See NRS 34.810(1)(b)(2); NRS 34.810(2).

However, the Court stated that Howard could overcome those procedural bars by demonstrating he was actually innocent (the “actual innocence gateway”). See Lisle v. State, 351 P.3d 725 (Nev. 2015) (“Where a petition is procedurally barred and the petitioner cannot demonstrate good cause, the district court may nevertheless reach the merits of any constitutional claims if the petitioner demonstrates that failure to consider those constitutional claims would result in a fundamental miscarriage of justice. A fundamental miscarriage of justice requires a colorable showing that the petitioner is actually innocent of the crime or is ineligible for the death penalty.”).

The Court explained that where a petitioner claims he is actually innocent of the death penalty, the “focus [is] on the objective factors that make a defendant eligible for the death penalty, that is, the objective factors that narrow the class of defendants for whom death may be imposed. Those objective factors include the statutory aggravating circumstances.” Lisle.

In Howard’s case, NRS 200.033 (2) provides that first degree murder is aggravated if “[t]he murder was committed by a person who was previously convicted of another murder or of a felony involving the use or threat of violence to the person of another.” In proving that aggravating circumstance at the penalty phase, the State relied exclusively on the New York conviction. However, since that conviction had been vacated and dismissed by a New York court, there was no conviction to satisfy NRS 200.033(2), according to the Court.

The Court rejected the State’s argument that the facts it presented at the penalty hearing demonstrated Howard committed the New York crime. Even if those facts showed Howard did commit the crime, NRS 200.033(2) requires a conviction of a qualifying crime, the Court pointed out. Evidence that the crime was committed is not the same as conviction of the crime. See Johnson v. Mississippi, 486 U.S. 578 (1988).

Thus, the Court concluded that Howard demonstrated he was actually innocent of the death penalty, i.e., without any aggravating circumstance, he was ineligible for the death penalty. Lisle. Having satisfied the actual innocence gateway, Howard established a fundamental miscarriage of justice to overcome the procedural bars to his untimely and successive petition. Therefore, the Court ruled that the district court erred in dismissing the petition as procedurally barred.

The State also argued that since Howard did not exercise reasonable diligence in filing his petition, it was barred by laches, i.e., the lapse in time prejudiced the State’s ability to retry Howard. The State had argued—and the district court had agreed—that Howard did not timely pursue his vacatur of the New York conviction.

NRS 34.800 (1)(a) requires only that Howard show “that the petition is based upon grounds of which [he] could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the State occurred.” The vacatur of the New York conviction was Howard’s grounds, and he filed his petition shortly after the vacatur. The Court was not persuaded Howard needed to show reasonable diligence in obtaining relief in New York to satisfy NRS 34.800 (1)(a). Even so, the reason the New York conviction was vacated was due to unreasonable delay by the New York prosecutor’s office. Based upon the above reasoning, the Court concluded Howard satisfied his burden to prove his Eighth Amendment claim. Accordingly, the Court reversed and remanded for a new penalty hearing. See: Howard v. State, 495 P.3d 88 (Nev. 2021). 

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Related legal cases

Howard v. State

Lisle v. State

Johnson v. Mississippi



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