JOHN FARNUM V. ROBERT LEGRAND, ET AL, No. 21-15529 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED OCT 26 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JOHN MICHAEL FARNUM, Petitioner-Appellant, No. U.S. COURT OF APPEALS 21-15529 D.C. No. 2:13-cv-01304-APG-BNW v. ROBERT LEGRAND, Warden; MEMORANDUM* ATTORNEY GENERAL FOR THE STATE OF NEVADA, Respondents-Appellees. Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding Argued and Submitted October 17, 2022 San Francisco, California Before: CLIFTON, NGUYEN, and OWENS, Circuit Judges. Petitioner John Farnum appeals from the district court’s order denying his petition for a writ of habeas corpus. As the parties are familiar with the facts, we do not recount them here. “We review the district court’s denial of a habeas petition de novo.” Jones v. Harrington, 829 F.3d 1128, 1135 (9th Cir. 2016)). * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Additionally, this habeas petition is “subject to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which forecloses federal habeas relief for ‘any claim that was adjudicated on the merits in State court’ unless the state court’s decision was (1) ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States’; or (2) ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’” Carter v. Davis, 946 F.3d 489, 501 (9th Cir. 2019) (quoting 28 U.S.C. § 2254(d)). This appeal involves two certified issues: (1) whether Petitioner’s trial counsel was ineffective for failing to call defense witnesses to discredit the primary victim, A.R., and her mother, Monica; and (2) whether Petitioner’s trial counsel was ineffective for failing to request a pretrial hearing under Miller v. State, 779 P.2d 87 (Nev. 1989), to challenge A.R.’s prior allegations of sexual abuse. 1 We affirm as to the first and vacate and remand as to the second. 1. As to the first certified issue, Petitioner’s trial counsel was not ineffective for failing to call additional witnesses to testify about Monica’s history of falsely accusing men of molesting A.R., Monica’s character, or A.R.’s 1 We ordered supplemental briefing on this issue. Dkt. No. 33. Petitioner’s motion to file supplemental excerpts of record in support of his supplemental briefing (Dkt. No. 40) is granted. 2 character.2 The Nevada Supreme Court determined that counsel did not perform deficiently by failing to call witnesses who “were not credible,” whose “testimony would not have been admissible,” or who “would have focused the jury’s attention on the more sensational elements of the case that counsel was attempting to avoid.” It also determined “that counsel made an informed, deliberate decision to focus on the lack of evidence and inconsistencies . . . rather than distract the jury.” This decision was not “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). To the extent that the Nevada Supreme Court’s decision does not apply to all the witnesses at issue in this appeal, Petitioner cannot show ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Petitioner has not demonstrated that specific instances of Monica’s false allegations or A.R.’s inappropriate behavior would be admissible under Nevada evidence law. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (holding that “the failure to take a futile action,” including an attempt to offer inadmissible evidence, “can never be deficient performance.”). Petitioner also has not shown “a reasonable probability that . . . the result of the proceeding would have been 2 We consider potential testimony about A.R.’s alleged prior false allegations of sexual assault within the second certified issue, because counsel could not have offered such testimony without first availing himself of the procedure in Miller, 779 P.2d at 90. 3 different,” Strickland, 466 U.S. at 694, if Monica’s credibility had been attacked more thoroughly. Quite the contrary, Petitioner’s convictions rested on the testimony and credibility of A.R., not Monica. 2. As for the second certified issue—whether counsel was ineffective for failing to request a Miller hearing to challenge alleged prior false allegations by the primary victim, A.R.—we do not address the merits, as the district court has not ruled on this issue. See, e.g., Friedman v. AARP, Inc., 855 F.3d 1047, 1057 (9th Cir. 2017) (“Our general rule is that we do not consider an issue not passed upon below.”). We therefore vacate the district court’s denial of the habeas petition and remand for the district court to evaluate this claim in the first instance. In addition to (or instead of) addressing the merits, the district court should consider whether this claim is within the scope of Petitioner’s Second Amended Habeas Petition, see, e.g., Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994); whether it was waived, see, e.g., Bracken v. Okura, 869 F.3d 771, 776 n.3 (9th Cir. 2017), whether Petitioner has exhausted this claim in state court, see, e.g., Gulbrandson v. Ryan, 738 F.3d 976, 992-93 (9th Cir. 2013); and whether the claim is procedurally barred (including whether the government waived a procedural bar defense and whether any exceptions to procedural bar apply), see, e.g., Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002). AFFIRMED IN PART, VACATED AND REMANDED IN PART. 4
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