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Howard v. Braun

United States District Court, D. North Dakota

January 22, 2016

LeRon Howard, Petitioner,
Colby Braun, Warden, NDSP, Respondent.



Before the court is a Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner, LeRon Howard (“Howard”) and respondent’s Motion to Dismiss. Both parties consented to proceed before a magistrate judge.[1] For the reasons set forth below, Howard’s petition is denied and respondent’s motion is granted.[2]


A. Trial

On May 2, 2011 a criminal Complaint was filed in the District Court for Stutsman County, North Dakota, charging Howard and co-defendant Janelle Alexandra Cave (“Cave”) with Murder, a class AA felony and Criminal Conspiracy, a class AA felony. (Ex. 2). A criminal Information was subsequently filed on July 7, 2011. (Ex. 3). On January 27, 2012, the State moved to sever the trials of Howard and Cave. (Ex. 7). On January 30, 2012, the state trial court granted the State’s motion to sever the trials. (Ex. 8). On March 23, 2012, the state trial court ordered a multi-county jury panel pursuant to N.D.C.C. § 27-09.1-05.1. (Ex. 11). The order required a panel of 80 jurors, including 60 from Stutsman County and 20 from Barnes County. (Ex. 11). Howard filed a motion for change of venue on April 9, 2012, and an amended motion for change of venue on April 13, 2012. (Exs. 12 and 13). The state trial court denied Howard’s motion for change of venue on May 2, 2012. (Ex. 15).

On August 23, 2012, the jury found Howard guilty of Murder, a class AA felony and Criminal Conspiracy, a class AA felony. (Exs. 19 and 20). Howard moved for a new trial and/or dismissal of count two, Criminal Conspiracy, on August 31, 2012. (Ex. 21). On September 13, 2012, the state trial court denied Howard’s motion for a new trial. (Ex. 23). On November 14, 2012, Howard was sentenced to life without parole. (Ex. 26).

B. Direct appeal

Howard appealed his conviction to the North Dakota Supreme Court on December 5, 2012. (Ex. 27). Howard argued that: (1) the trial court erred in using a multi-county jury panel; (2) the trial court erred in denying his motion for change of venue; and (3) there was insufficient evidence to sustain his convictions for murder and criminal conspiracy. Id. On October 22, 2013, the North Dakota Supreme Court rejected his claims and affirmed his convictions. State v. Howard, 2013 ND 184, 838 N.W.2d 416 (“Howard I”).

C. State postconviction proceedings

Howard next filed an application for postconviction relief with the state trial court on January 15, 2014. (Ex. 32). Howard claimed: (1) the jury was unconstitutionally selected and impaneled because of the biases of several of the jurors; (2) counsel was ineffective in several respects; and (3) there was prosecutorial misconduct. Id. The State filed an answer to Howard’s application for postconviction relief and also moved for summary disposition. (Exs. 33 and 34). On February 24, 2014, Howard filed a second application for postconviction relief that included the same general claims alleged in the first application. (Ex. 35). The State submitted an answer and moved for summary dismissal of Howard’s second application for postconviction relief. (Exs. 36 and 37). Howard was then appointed counsel, who filed a supplement to Howard’s application for postconviction relief on April 24, 2014, that included additional discussion with respect to the points already raised and a new claim of insufficiency of the evidence. (Ex. 38). The State again moved for summary disposition. (Ex. 39). On June 10, 2014, the state postconviction court dismissed the application for postconviction relief without holding a hearing. (Ex. 40).

Howard appealed the order dismissing his postconviction application. (Ex. 41). On April 28, 2015, the North Dakota Supreme Court affirmed the state postconviction court’s dismissal of the postconviction application. Howard v. State, 2015 ND 102, 863 N.W.2d 203 (“Howard II”).

D. Federal habeas petition

Howard next filed his § 2254 petition with this court. (Doc. No. 2). Howard’s petition raises four different grounds for relief. In his first ground, he alleges that there was insufficient evidence to allow a guilty verdict on the criminal conspiracy charge. In his second ground, he alleges that his trial counsel was ineffective for multiple reasons. In his third ground, he alleges that the state trial court erred in empaneling a multi-county jury panel and denying his amended motion for change of venue. In his fourth and final ground, he alleges prosecutorial misconduct. (Id.).

E. Evidence supporting Howard’s conviction

The following factual summary, taken verbatim from the decision of the North Dakota Supreme Court on direct appeal, is set forth below because it provides context in evaluating Howard’s claims.

[¶ 2] In April 2011, the body of Abdi Ali Ahmed was discovered down a muddy embankment along the side of a rural gravel road in Stutsman County, near Jamestown. At trial, Sheriff's Deputy Falk testified, after examining the body at the crime scene, he noticed two apparent stab wounds, one in the victim's abdomen and the other in the victim's rib area. Deputy Falk testified there were also abrasions on the victim's chest and lacerations on the forearms and wrists. State Forensic Examiner Dr. William Massello, who conducted the autopsy, testified he determined Ahmed's cause of death was from a blunt head injury and a stab wound to the abdomen.
[¶ 3] On the night of April 29, 2011, Ahmed was seen socializing with Howard at a bar in Jamestown and later at a house party. In the early morning hours of April 30, Howard and Ahmed left the house party together along with Janelle Cave. Cave drove Howard and Ahmed to her trailer. Soon after arriving, Howard and Ahmed were involved in a physical altercation that took place outside the trailer. Cave and Howard's testimony concerning the fight conflicts substantially.
[¶ 4] Howard testified he observed Ahmed and Cave arguing and “it looked like [Ahmed] was fixing to make an attempt to put his hands on her ... so my first reaction was to hit him, and I hit him.” At trial, Howard admitted he struck Ahmed twice in the head. Ahmed fell to the ground and Howard “kicked him a couple times” while Ahmed was down. Howard testified, “I kicked [Ahmed], and then it seemed like he kicked me back, so ... I grabbed him by his legs and I drug him from one side of the street to the other side of the street.” After striking Ahmed in the head and dragging him across the pavement, Howard was uncertain whether Ahmed was conscious. He testified Ahmed was mumbling, and he could not understand what he said. Howard then testified he said the following to Ahmed, “ ‘I'm sorry. I'm going to fix this. I'm going to get you some weed, ’ ... and then it seemed like he had a lot of trouble getting up, so I helped him up.” Howard put Ahmed in the backseat of Cave's car.
[¶ 5] Cave testified she did not have an argument with Ahmed. She testified Howard and Ahmed walked out of the trailer together while she was inside. Shortly thereafter, she went outside and discovered Ahmed laying on the ground “all the way across the street.” Cave testified she checked Ahmed's pulse and felt his heartbeat. She tried to wake Ahmed up by nudging him. Cave was uncertain how long Ahmed had been unconscious. Cave testified Howard dragged Ahmed across the street and placed him on the floorboards in the backseat of her car.
[¶ 6] Howard and Cave both testified that Cave drove the three of them to Delmonty Jones's residence to smoke marijuana. It is unclear whether Ahmed was conscious during the drive to Jones's house. The State alleges that prior to leaving for Jones's residence, someone retrieved Cave's decorative sword from her trailer and placed it in the car. Cave testified she did not take the sword out of her house or see Howard do likewise. Howard also testified he did not put the sword in the car or see Cave put the sword in the car.
[¶ 7] Howard and Cave both testified that, after reaching Jones's house, they left Ahmed in the car while they smoked marijuana inside the residence. Howard testified the following dialogue transpired: “ ‘Old boy [Ahmed] out in the car probably want to smoke, ’ but [Cave] was like, ‘Oh, he's not-he ain't even responding. Like, he's not moving or anything.’ ” Cave testified Howard told Jones “there was a body in the car.” Jones testified Howard brought a sword wrapped in a blanket into the house. Jones then testified Howard told him “I want to put-put a body in your well.” Cave testified Howard and Jones joked about what to do with the body and Jones laughed and said, “just put him in the field.” Howard and Cave left approximately ten to twenty minutes later and headed back toward Cave's trailer. Howard took the sword with him. Cave was driving. It is unclear whether Ahmed was conscious in the backseat.
[¶ 8] At some point the car was stopped, Ahmed was thrown out of the car, stabbed, and left in the gravel road. Howard and Cave each testified they were present when Ahmed was stabbed, but they each place the blame on the other party. Cave testified she pulled over and put her car in park because the dome light came on. She exited the vehicle because Howard got out and she went around the car and stood near the passenger side taillight. Cave testified Howard pulled Ahmed out of the backseat of the car. Cave testified she saw the tip of the knife and saw Howard kick and stab Ahmed. She testified it appeared Ahmed was kneeling when Howard stabbed him. Cave testified she and Howard got back in the car and she drove to the James River. Cave testified she threw the sword in the river. The sword was discovered on the riverbank in early 2012 by a fisherman.
[¶ 9] Howard's testimony conflicts substantially. Howard testified that, on the trip back to Cave's trailer, Cave hit the brakes and said, “I don't want [Ahmed] in the car.” In response, Howard grabbed Ahmed from the backseat and threw him out of the car. Howard testified before he was all the way out of the car, “[Cave] was already coming around the car, and I didn't think anything of it, and I was like, ‘You've got to get out, ’ and [Ahmed] was mumbling still. So I let him go, and then that's when she proceeded to just hit him with the knife out of nowhere....” Howard testified Cave swung the sword at Ahmed and then stabbed him twice. Howard testified he jumped back in the car out of shock, looked in the rearview mirror and last saw Ahmed standing in the middle of the road while he and Cave drove away. Howard testified Cave put the sword in a towel and put it on the side of the driver's door with her. He testified he did not see the sword again until trial.

Howard I, 2013 ND 184, ¶¶ 2-9.


A. Scope of Review

Under 28 U.S.C. § 2254, a federal court may review state-court criminal proceedings to determine whether a person is being held in custody in violation of the United States Constitution or other federal law. However, where the state court has adjudicated the federal claim on the merits, this court’s review is limited by 28 U.S.C. § 2254(d) to a determination of whether the state court’s decision is (1) directly contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or (2) based on an unreasonable determination of the facts based on the evidence presented in the state-court proceeding. See 28 U.S.C. § 2254(d); see generally Harrington v. Richter, 562 U.S. 86, 97-100 (2011) (“Richter”); Williams v. Taylor, 529 U.S. 362, 399-413 (2000).

This highly deferential standard of review is often referred to as “AEDPA deference” because it was enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). E.g., Pederson v. Fabian, 491 F.3d 816, 824-25 (8th Cir. 2007); see generally Renico v. Lett, 559 U.S. 766 & 773 & n.1 (2010). The reasons for the limited review are ones of federalism and comity that arise as a consequence of the state courts having primary responsibility for ensuring compliance with federal law in state criminal proceedings. See, e.g., Richter, 562 U.S. at 103.

B. The exhaustion requirements

The exhaustion doctrine codified at 28 U.S.C. § 2254(b)-(c) precludes granting habeas relief for claims that have not been properly exhausted in the state courts. E.g., Rhines v. Weber, 544 U.S. 269, 274 (2005); Dixon v. Dormire, 263 F.3d 774, 777 (8th Cir. 2001). Proper exhaustion has two components. First, the claim must be “fairly presented, ” which requires that the petitioner present both the factual and legal premises for the claim, with the latter being satisfied if there is a reference to the particular federal constitutional right or a citation to a state or federal case that raises the constitutional issue. Dansby v. Norris, 682 F.3d 711, 722-23 (8th Cir. 2012), vacated on other grounds, Dansby v. Hobbs, No. 12-8582, 2013 WL 506561 (U.S. June 3, 2013); Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007). Second, the petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addition, there are three other aspects of the exhaustion doctrine that are important. The first is that the exhaustion doctrine is satisfied if there are no state-court remedies available and exhaustion would be futile, such as when the claim has been procedurally defaulted at the state-court level. E.g., Armstrong v. Iowa, 418 F.3d 924, 926-27 (8th Cir. 2005). The second is that Rose v. Lundy, 455 U.S. 509 (1982), prohibits a petitioner from proceeding with a “mixed petition” of exhausted and unexhausted claims. See also Rhines v. Weber, 544 U.S. at 273-74. The third is that § 2254(b)(2) authorizes the court to deny a claim on the merits notwithstanding a failure to exhaust. E.g., Gringas v. Weber, 543 F.3d 1001, 1003 (8th Cir. 2008).

C. Procedural default

A federal district court is precluded from substantively considering a habeas claim that has been procedurally defaulted at the state level on independent and adequate state grounds. E.g., Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). State procedural grounds are independent and adequate if they are firmly established, readily ascertainable, and regularly followed. Barnett v. Roper, 541 F.3d 804, 808 (8th Cir. 2008); Franklin v. Luebbers, 494 F.3d 744, 750 (8th Cir. 2007). They must also further a legitimate state interest and not be applied in an exorbitant manner. Barnett, 541 F.3d at 808.

The rule barring procedurally-defaulted claims is nearly absolute. Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007). The only exceptions are the rare instances when a prisoner is able to meet the strict cause and prejudice or actual innocence standards. E.g., Dretke v. Haley, 541 U.S. 386, 392-93 (2004); Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012).

D. State defenses of res judicata and misuse of process

Under N.D.C.C. § 29-32.1-12, res judicata and misuse of process are affirmative defenses in state proceedings for postconviction relief. Res judicata is defined in subsection (1) to be a claim that was fully and finally determined in a prior proceeding. Misuse of process is defined in subsection (2)(a) to include any “claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to a judgment of conviction and sentence or in a previous postconviction proceeding[.]” These procedural defenses are regularly enforced by the North Dakota courts. E.g., Tweed v. State, 2011 ND 228, ¶ 12, 807 N.W.2d 599; Steen v. State, 2007 ND 123, ¶ ¶ 13-17, 736 N.W.2d 457; Laib v. State, 2005 ND 187, ¶¶ 6-7, 705 N.W.2d 845.


A. Ground One: Sufficiency of the evidence

1. Howard’s claim of insufficiency of the evidence

Howard contends that there was insufficient evidence to sustain his conviction for criminal conspiracy because of the lack of evidence of an agreement between Howard and Cave to attack or cause Ahmed harm, implicitly or explicitly. (Doc. No. 2, p.5).[3] Howard argues that the “only item that can be proved as a result of act [sic] after the road incident are those of facilitation by concealment of a non-planned crime, a less severe charge.” Id.

2. State court proceedings

Howard first raised this claim in his motion for a new trial. (Ex. 21). The trial court rejected it, stating:

During trial, the evidence was very clear and consistent up to the point that Cave, Howard, and the victim arrived at the trailer home in Western Park Village early in the morning of April 30th. After that, the stories of Cave and Howard diverge. Cave has given so many versions of the events, either under oath or under questioning by law enforcement, that she has little credibility on any of the pertinent points of contention. At t rial [sic] s he [sic] either gave vague testimony or claimed to be absent or unable to recall when questioned about anything of substance. Howard’s testimony was generally credible and cleared up many loose ends left dangling after the close of the State’s case. Nevertheless, not all of his testimony was credible.
His claim that he was unaware of the presence of the sword in the vehicle is not credible and is directly contradicted by the testimony of Delmonte Jones, who said Howard brought a sword into his home wrapped in a blanket. While Jones has some credibility issues of his own, he obviously did see the sword in his house, or he would not have been able to report it and describe it to law enforcement personnel, who were unaware of its existence until he made his report.
Howard admitted hitting the victim outside of the trailer home, admitted dragging him across the street and loading him into the car, and admitted he was along when they drove the obviously incapacitated victim more than 10 miles out of town to a relatively remote area. He denied Cave’s claim that he ...

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