Steven Murray v. Jerry Howell ( 2022 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       MAY 24 2022
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    STEVEN NELSON MURRAY,                           No.    21-15104
    Petitioner-Appellee,            D.C. No.
    2:12-cv-02212-RFB-VCF
    v.
    JERRY HOWELL, Warden; ATTORNEY                  MEMORANDUM*
    GENERAL FOR THE STATE OF
    NEVADA,
    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
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    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
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    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.
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