Cooper v. Neven

• Decision Date: 01 April 2011
• Docket Number: No. 08–16973.,08–16973.
• Citation: 641 F.3d 322
• Parties: Ricky Dennis COOPER, Petitioner–Appellant,v.Dwight NEVEN, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

641 F.3d 322

11 Cal. Daily Op. Serv. 3948

2011 Daily Journal D.A.R. 4772

Ricky Dennis COOPER, Petitioner–Appellant,

v.Dwight NEVEN, Respondent–Appellee.

No. 08–16973.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 2010.Filed April 1, 2011.

Franny A. Forsman, John C. Lambrose, and Danice Arbor Johnson, Las Vegas, NV, for the petitioner-appellant.Catherine Cortez Masto, Robert E. Wieland, and Alicia L. Lerud, Reno, NV, for the respondent-appellee.Appeal from the United States District Court for the District of Nevada, James C. Mahan, District Judge, Presiding. D.C. No. 3:97–CV–00222–JCM–RAM.Before: PROCTER HUG, JR., D.W. NELSON, and M. MARGARET McKEOWN, Circuit Judges.

OPINION

D.W. NELSON, Senior Circuit Judge:

Ricky Dennis Cooper appeals the district court's dismissal of his petition for a writ of habeas corpus with prejudice. He argues that the district court erred in concluding that Grounds 3A, 4, 7A(3), 8(3), 8(5), 9, and 10 were procedurally defaulted. He further argues that the district court erred in concluding that the Nevada Supreme Court's dismissal of his claims under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), barred federal review. Rather, he contends that the Nevada Supreme Court's decision did not rest on independent state grounds, and that therefore those claims are available for review in federal court. We affirm in part, reverse in part, and remand to the district court for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Cooper was convicted of attempted robbery with the use of a deadly weapon, attempted murder with the use of a deadly weapon, battery with the use of a deadly weapon, and first degree murder with the use of a deadly weapon. He is serving two consecutive life sentences without possibility of parole.

On December 8, 1986, Cooper filed his first state petition for post-conviction relief, which he amended on May 22, 1987. The state district court denied his petition on November 2, 1987, and on September 21, 1988, the Nevada Supreme Court dismissed his appeal.

On July 12, 1990, Cooper filed his second state petition. The district court dismissed it on November 2, 1990, and the Nevada Supreme Court dismissed the appeal on June 27, 1991.

On November 16, 1993, Cooper filed his first federal habeas petition, which was dismissed without prejudice on February 21, 1995. He filed an amended petition on May 21, 1995, which was again dismissed without prejudice on February 29, 1996.

On January 6, 1997, Cooper filed an original petition for habeas corpus with the Nevada Supreme Court. It was denied because it had not first been filed in the state district court.

On April 23, 1997, Cooper filed another federal habeas petition, which he amended for a second time on February 17, 1998. Accepting the magistrate judge's recommendation, the district judge dismissed the petition without prejudice as unexhausted on February 23, 1999.

On August 21, 1997, Cooper filed his third state habeas petition. The State opposed the petition as untimely and successive. The state district court denied the petition, Cooper appealed, and the Nevada Supreme Court found that it was untimely and successive. However, the Nevada Supreme Court remanded for an evidentiary hearing on the question of Cooper's Brady claims, which it held may provide cause to excuse the procedural default if true. The state district court conducted an evidentiary hearing and denied his petition. Cooper appealed. On March 2, 2006, the Nevada Supreme Court affirmed the denial of his petition. The Court found that Cooper had demonstrated cause for not raising the Brady violation and witness recantation claims earlier, but that he had failed to demonstrate prejudice. On April 18, 2006, the Nevada Supreme Court denied his petition for rehearing and motion for limited remand.

On May 12, 2006, Cooper filed a motion to reopen his federal habeas petition, which was granted on September 27, 2006. His amended petition was filed November 9, 2006. Respondents filed a motion to dismiss on April 6, 2007. The district court granted that motion on August 11, 2008, finding Cooper's petition procedurally barred. After the district court initially denied Cooper a Certificate of Appealability (“COA”), we granted a COA on November 3, 2009. This appeal followed.

II. STANDARD OF REVIEW

We review the district court's decision to deny a 28 U.S.C. § 2254 habeas petition de novo and its findings of fact for clear error. McClure v. Thompson, 323 F.3d 1233, 1240 (9th Cir.2003). “Mixed questions of law and fact involving constitutional issues are reviewed de novo.” Collier v. Bayer, 408 F.3d 1279, 1281 (9th Cir.2005). We review de novo a district court's conclusion that a claim is procedurally defaulted. Pirtle v. Morgan, 313 F.3d 1160, 1168 (9th Cir.2002).

The question of whether a habeas petitioner has procedurally defaulted on certain claims is governed by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (“AEDPA”). AEDPA mandates that habeas petitioners exhaust their claims in state court before raising them in federal court. 28 U.S.C. § 2254(b)(1)(A). Exhaustion requires the petitioner to “fairly present” his claims to the highest court of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). In order to fairly present a claim, the petitioner must clearly state the federal basis and federal nature of the claim, along with relevant facts. Anderson v. Harless, 459 U.S. 4, 6–7, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Picard, 404 U.S. at 275–76, 92 S.Ct. 509; Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.1999). Petitioners are not required to exhaust their claims repeatedly before proceeding to federal court. Boerckel, 526 U.S. at 844, 119 S.Ct. 1728. If Petitioner properly argued his claims through “one complete round of the State's established appellate review process” during an earlier petition, id. at 845, 119 S.Ct. 1728, they are exhausted and can be considered in federal habeas proceedings.

In addition to the exhaustion requirement, a federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine. Exhaustion and procedural bar are closely related, but distinct, doctrines. See Boerckel, 526 U.S. at 851–56, 119 S.Ct. 1728 (Stevens, J., dissenting) (discussing relationship and distinction between doctrines of exhaustion and procedural default, cited with approval by the majority, see id. at 848, 119 S.Ct. 1728). First, if the state court denied the claim on state procedural grounds, it will be deemed procedurally defaulted unless the petitioner can show cause and prejudice. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir.2001); Coleman v. Thompson, 501 U.S. 722, 729–30, 746–47, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Second, if a claim is unexhausted but state procedural rules would now bar consideration of the claim, it is technically exhausted but will be deemed procedurally defaulted unless the petitioner can show cause and prejudice. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir.2002). State procedural rules must be both independent and adequate in order to bar federal habeas review. See Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); Valerio v. Crawford, 306 F.3d 742, 773–74 (9th Cir.2002) (en banc).

If a petitioner has procedurally defaulted on a claim, a federal court may nonetheless consider the claim if he shows: (1) good cause for his failure to exhaust the claim; and (2) prejudice from the purported constitutional violation; or (3) demonstrates that not hearing the claim would result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Sawyer v. Whitley, 505 U.S. 333, 339–40, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). An objective factor outside of a petitioner's control (e.g., ineffective assistance of counsel or a basis for the claim that was previously unavailable) could constitute cause. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The petitioner can meet the prejudice prong if he demonstrates “that the errors ... worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir.1989) (citing United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). A petitioner can demonstrate a fundamental miscarriage of justice by “establish[ing] that under the probative evidence he has a colorable claim of factual innocence.” Sawyer, 505 U.S. at 339, 112 S.Ct. 2514 (quotation marks omitted).

III. EXHAUSTION

Respondents first argue that the district court should have considered whether Cooper's claims were unexhausted before considering whether the claims were procedurally barred. They contend that some of Cooper's claims were not procedurally barred, but rather unexhausted.

Respondents misstate the relationship between exhaustion and procedural default. Contrary to respondents' assertion, claims can be procedurally defaulted even if they are not exhausted. Indeed, one prong of procedural default encompasses claims that were not presented in state court, and would now be barred by state procedural rules from being presented at all. See, e.g., Beaty, 303 F.3d at 987. Thus, the district court's finding of procedural bar incorporates claims that were denied by the state courts on procedural grounds as well as any unexhausted claims that would be considered untimely if Cooper attempted to exhaust them now. The latter kind of claim is technically...