Kashard Brown v. Brian Williams

Opinion

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAR 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS KASHARD O. BROWN, No. 21-16668

Petitioner-Appellant, D.C. No. 2:11-cv-01058-JCM-DJA v. District of Nevada, Las Vegas BRIAN WILLIAMS, Warden; CATHERINE CORTEZ-MASTO, ORDER

Respondents-Appellees.

Before: McKEOWN and PAEZ, Circuit Judges, and SESSIONS,* District Judge.

An Amended Memorandum Disposition is being filed simultaneously with

this Order.

The panel has voted to deny the petition for rehearing and recommends

denying the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

The petition, Dkt. No. 46, is DENIED. No further petitions will be

entertained.

* The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KASHARD O. BROWN, No. 21-16668

Petitioner-Appellant, D.C. No. 2:11-cv-01058-JCM-DJA v.

BRIAN WILLIAMS, Warden; CATHERINE AMENDED MEMORANDUM* CORTEZ-MASTO,

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Argued and Submitted November 17, 2022 San Francisco, California

Before: McKEOWN and PAEZ, Circuit Judges, and SESSIONS,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. Kashard Brown seeks review of a district court judgment denying his petition

for a writ of habeas corpus. The district court certified for appeal the question of

whether Brown’s ineffective-assistance-of-counsel claim was procedurally

defaulted. Brown moves to expand the certificate of appealability to his claims that

he was denied due process by incorrect jury instructions and exclusion of lay opinion

testimony. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de

novo a district court’s denial of a habeas petition. Ford v. Peery, 999 F.3d 1214,

1224 (9th Cir. 2021). Where the state court declined to hear a federal claim because

the prisoner failed to meet a state procedural requirement, the state judgment rests

on adequate and independent state grounds that we do not review. Coleman v.

Thompson, 501 U.S. 722, 729–30 (1991). We affirm the denial of Brown’s petition.

After Brown failed to timely present his ineffective-assistance-of-counsel

claim—based on his trial counsel’s failure to inform the firearms expert about the

faulty pistol stock on Brown’s shotgun and to call that expert to testify as to the effects

of that stock—during his first state habeas proceeding, Brown presented the claim as

part of a second or successive state habeas petition. The Nevada district court found

this petition to be procedurally defaulted and the Nevada Supreme Court affirmed.

Brown has not demonstrated cause to overcome this procedural default under

Martinez v. Ryan, 566 U.S. 1 (2012), because he fails to establish that his post-

conviction counsel was ineffective under Strickland v. Washington, 466 U.S. 668

2 (1984). See Martinez, 566 U.S. at 14. Strickland requires a showing that “the

deficient performance prejudiced the defense.” 466 U.S. at 687; see also id. at 692.

Brown does not show such prejudice because he does not establish that, had he

presented his ineffective-assistance-of-trial-counsel claim to the Nevada state courts

in compliance with state procedural rules, there is a reasonable probability the courts

would have granted his first habeas petition. See id. at 694. We therefore deny

Brown’s petition on the certified issue.

We also deny Brown’s request to expand the certificate of appealability to his

due process claims. See Ninth Cir. R. 22-1(e). On both claims, the Nevada Supreme

Court concluded that the trial court erred, but the errors were harmless. Brown has

not made a “substantial showing of the denial of a constitutional right” on either

issue. 28 U.S.C. § 2253(c)(2). Given the other evidence supporting that the shooting

was not an accident, reasonable jurists could not debate whether the petition should

have come out differently on the harmless error questions. See Miller-El v. Cockrell,

537 U.S. 322, 336 (2003).

AFFIRMED.1

1 We grant Brown’s motion to expand the record (Dkt. No. 36).