STEVEN MURRAY V. JERRY HOWELL, No. 21-15104 (9th Cir. 2022)
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The court issued a subsequent related opinion or order on July 8, 2022.
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED MAY 24 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT STEVEN NELSON MURRAY, Petitioner-Appellee, No. U.S. COURT OF APPEALS 21-15104 D.C. No. 2:12-cv-02212-RFB-VCF v. JERRY HOWELL, Warden; ATTORNEY GENERAL FOR THE STATE OF NEVADA, MEMORANDUM* Respondents-Appellants. Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding Argued and Submitted February 17, 2022 San Francisco, California Before: GOULD and RAWLINSON, Circuit Judges, and ZIPPS,** District Judge. The State of Nevada appeals the district court’s order granting Petitioner Steven Murray habeas corpus relief under 28 U.S.C. § 2254 on grounds one and three of his amended petition. We have jurisdiction under 28 U.S.C. §§ 1291 and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer G. Zipps, United States District Judge for the District of Arizona, sitting by designation. 2253, and we reverse. The parties agree that Petitioner’s ground one claim of involuntary jury waiver was procedurally defaulted. The issue presented in this appeal is whether Petitioner’s ineffective assistance of counsel claims in ground two (trial counsel) and ground three (appellate counsel) provide cause to excuse the default. We conclude that they do not. Petitioner’s claim of ineffective assistance of appellate counsel cannot serve as cause to overcome the default of ground one because Petitioner failed to fairly present his ineffective assistance claim to the Nevada state courts for review, and it is procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (“[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted”). In his state petition for writ of habeas corpus, Petitioner asserted that appellate counsel was ineffective for failing to raise instances of ineffective assistance of trial counsel, including trial counsel’s acquiescence to an “illegal stipulation.” Petitioner failed to raise the claim that he now presents in his amended federal habeas petition—that appellate counsel was ineffective based on counsel’s failure to raise a substantive due process challenge to the jury waiver stipulation. See Moorman v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005) (ruling that a petitioner who initially presented an ineffective assistance claim could not later add unrelated alleged instances of 2 counsel’s ineffectiveness to the claim); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (en banc) (declining to entertain various permutations of a petitioner’s ineffectiveness claim when the state Supreme Court ruled that his failure to appeal those claims was grounds for procedural default). Petitioner filed a supplemental petition for writ of habeas corpus in state court to exhaust his ineffective assistance of appellate counsel claim as it related to substantive due process. However, the state district court denied his supplemental petition as untimely and successive, and the Nevada Supreme Court affirmed, concluding that Petitioner failed to demonstrate cause and prejudice to overcome the default. On this record, we conclude that the district court erred in holding that Petitioner raised his ineffective assistance of appellate counsel substantive due process claim in his “first state habeas action,” and in concluding that the Nevada Supreme Court ruled on the merits of the claim without discussion or analysis. The Nevada Supreme Court failed to discuss or analyze this claim when addressing Petitioner’s post-conviction appeal because the claim was not presented to the Nevada courts. Moreover, Petitioner fails to demonstrate the cause and prejudice required to overcome the procedural default of the claim. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (“[When] a state prisoner has defaulted his federal claims in state court … federal habeas review of the claims is barred unless 3 the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law”). We also reject Petitioner’s argument that his ineffective assistance of trial counsel claim (ground two) can overcome the default of his ground one substantive due process claim. The Nevada Supreme Court dismissed the ineffective assistance claim on its merits. Accordingly, our review is doubly deferential, Harrington v. Richter, 562 U.S. 86, 105 (2011), and “relief may be granted only if the state-court decision unreasonably applied the more general standard for ineffective-assistance-of-counsel claims established by Strickland [v. Washington, 466 U.S. 668 (1984)],” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Here, Petitioner fails to argue, let alone demonstrate, that the Nevada Supreme Court unreasonably applied Strickland to his ineffective assistance of trial counsel claim. REVERSED and REMANDED. 4
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