Steven Murray v. Jerry Howell ( 2022 )

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
STEVEN NELSON MURRAY, No. 21-15104
Petitioner-Appellee, D.C. No.
2:12-cv-02212-RFB-VCF
v. District of Nevada,
Las Vegas
JERRY HOWELL, Warden; ATTORNEY
GENERAL FOR THE STATE OF ORDER
NEVADA,
Respondents-Appellants.
Before: GOULD and RAWLINSON, Circuit Judges, and ZIPPS,* District Judge.
The memorandum disposition in the above-captioned matter filed on May
24, 2022, is amended as follows:
The paragraph on Page 4, lines 3-12, currently reads:
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.
*
The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
That language is deleted and is replaced with the following language:
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. Even under de novo review, our analysis of counsel’s
performance is deferential, for “the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.” Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016) (internal quotation
marks and citation omitted). Applying these standards, we agree with the Nevada
court’s conclusion that trial counsel’s decision to enter into the agreed stipulation
did not fall below an objective standard of reasonableness. The stipulation
prevented the jury from learning about Petitioner’s prior DUI convictions, which
would have been devastating to Petitioner at trial. Petitioner was personally
canvassed about the stipulation and stated that he understood it and had discussed
it with his attorneys. The stipulation was entered into as a result of Petitioner’s
counsel’s efforts to sever the charges for trial. Although the stipulation had the
effect of waiving Petitioner’s right to jury trial on one charge, under the
circumstances, the waiver could be sound trial strategy. See id. at 770 (rejecting
claim of ineffective assistance of counsel on de novo review because, even though
courts have recognized that defense counsel’s failure to object to exclusion of
public during jury selection constitutes ineffective assistance of counsel, those
court decisions “do not foreclose the possibility that in specific instances, counsel’s
choice not to object to closure of trial proceedings might be sound trial strategy.”).
The panel has unanimously voted to deny the petition for panel rehearing.
Judges Gould and Rawlinson have voted to deny the petition for rehearing en banc,
and Judge Zipps has so recommended. 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 for panel rehearing
and the petition for rehearing en banc are denied.
//
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No future petitions for rehearing or rehearing en banc will be entertained.
IT IS SO ORDERED.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 8 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 AMENDED 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. Even under de novo review, our analysis of counsel’s
performance is deferential, for “the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.” Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016) (internal quotation
marks and citation omitted). Applying these standards, we agree with the Nevada
court’s conclusion that trial counsel’s decision to enter into the agreed stipulation
did not fall below an objective standard of reasonableness. The stipulation
prevented the jury from learning about Petitioner’s prior DUI convictions, which
would have been devastating to Petitioner at trial. Petitioner was personally
canvassed about the stipulation and stated that he understood it and had discussed
it with his attorneys. The stipulation was entered into as a result of Petitioner’s
counsel’s efforts to sever the charges for trial. Although the stipulation had the
effect of waiving Petitioner’s right to jury trial on one charge, under the
circumstances, the waiver could be sound trial strategy. See id. at 770 (rejecting
claim of ineffective assistance of counsel on de novo review because, even though
courts have recognized that defense counsel’s failure to object to exclusion of
4
public during jury selection constitutes ineffective assistance of counsel, those
court decisions “do not foreclose the possibility that in specific instances, counsel’s
choice not to object to closure of trial proceedings might be sound trial strategy.”).
REVERSED and REMANDED.
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