The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KASHARD O. BROWN, No. 21-16668
Petitioner-Appellant, 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