KASHARD BROWN V. BRIAN WILLIAMS, ET AL, No. 21-16668 (9th Cir. 2022)
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The court issued a subsequent related opinion or order on March 27, 2023.
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 16 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT KASHARD O. BROWN, Petitioner-Appellant, No. U.S. COURT OF APPEALS 21-16668 D.C. No. 2:11-cv-01058-JCM-DJA v. BRIAN WILLIAMS, Warden; CATHERINE MEMORANDUM* CORTEZ-MASTO, Respondents-Appellees. 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 appellate counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). See 2 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). 3
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