Bodden v. Dreesen

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 17 2026 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAREN BODDEN, No. 25-109 D.C. No.

Petitioner - Appellant, 2:14-cv-01968-RFB-NJK v.

MEMORANDUM*

FRANK DREESEN; ATTORNEY GENERAL OF THE STATE OF NEVADA,

Respondents - Appellees.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware, II, District Judge, Presiding

Submitted August 13, 2026** Reno, Nevada

Before: BADE, FORREST, and VANDYKE, Circuit Judges.

Petitioner Karen Bodden appeals from the district court’s denial of her habeas corpus petition. A panel of this court granted a certificate of appealability (“COA”) with respect to one issue: “whether the district court properly determined that

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

[Bodden’s] claim that trial counsel was ineffective for failing to present a forensic biologist was procedurally defaulted, including whether [Bodden] demonstrated cause and prejudice to excuse the default under Martinez v. Ryan, 566 U.S. 1 (2012).” Dkt. 4.1. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.1 1. Under Martinez, if Bodden’s state habeas counsel was ineffective for failing to bring her procedurally defaulted claim, she can establish cause to excuse the default. 556 U.S. at 9. Bodden’s claims that trial counsel was ineffective for failing to present a forensic biologist and that post-conviction counsel was ineffective for failing to raise that ineffective-assistance claim are heavily dependent on the declaration of Dr. Elizabeth Johnson. This declaration is new evidence that was never presented to the Nevada state courts during Bodden’s state post- conviction proceedings. In McLaughlin v. Oliver, a panel of this court squarely held that, when “determining whether the Martinez exception applies to a trial- ineffective-assistance claim that was procedurally defaulted in state post-conviction proceedings,” a federal habeas court may not consider new “evidence on the merits of a . . . prisoner’s defaulted claim unless the exceptions in [28 U.S.C.] § 2254(e)(2) are satisfied.” 95 F.4th 1239, 1248–49 (quoting Shinn v. Ramirez, 596 U.S. 366,

1 Bodden conceded that her claim was procedurally defaulted. The only question before us, then, is whether she can overcome procedural default under Martinez.

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389 (2022)). Bodden does not dispute that she cannot meet the requirements of § 2254(e)(2). Nor does Bodden dispute that, without this new evidence, she cannot show ineffective assistance of state post-conviction counsel to overcome procedural default or establish the merits of her underlying ineffective-assistance-of-trial- counsel claim. We conclude that, under McLaughlin, we cannot consider Bodden’s new evidence and that without that evidence, her claim fails. Cf. McLaughlin, 95 F.4th at 1251 (affirming the dismissal of a habeas petition after petitioner’s counsel admitted the underlying claim could not succeed without the consideration of new evidence).

2. Bodden invokes—for the first time in her reply brief—the “actual innocence” exception set forth in House v. Bell, 547 U.S. 518, 536 (2006), and Schlup v. Delo, 513 U.S. 298 (1995), as an alternative basis for excusing her procedural default. Bodden did not raise the actual innocence argument in her opening brief. E.g., Balser v. Dep’t of Just., Off. of U.S. Tr., 327 F.3d 903, 911 (9th Cir. 2003) (“Issues not raised in the opening brief usually are deemed waived.”) Nor did she raise actual innocence as a basis for overcoming procedural default before the district court. Cf. Robinson v. Kramer, 588 F.3d 1212, 1217 (9th Cir. 2009) (declining to address a claim not raised to the district court). And while Bodden raised actual innocence in her application for a COA before this court, see Dkt. 3.1 at 5–34, this court did not grant a COA on that issue, see Dkt. 4.1. We therefore

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decline to consider Bodden’s actual innocence argument. See Catlin v. Broomfield, 124 F.4th 702, 720–21 (9th Cir. 2024) (explaining that a COA is a jurisdictional prerequisite to this court’s review). We also decline to consider Bodden’s remaining claims because they are beyond the scope of the COA. Cf. id. at 721.

AFFIRMED.