BROWN v. FILSON (2019)

MEMORANDUM **

Christopher Damal Brown, a Nevada state prisoner, appeals the district court’s denial of his petition for a writ of habeas corpus. See 28 U.S.C. § 2254. We affirm.

(1) Brown asserts that the district court erred when it accorded the usual level of deference to the denial of his ineffective assistance of counsel claims by the Nevada Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 102–05, 131 S.Ct. 770, 786–88, 178 L.Ed.2d 624 (2011). In particular, Brown argues that the Nevada Supreme Court applied the wrong test in deciding the claims ¹ and, therefore, should not be accorded the usual level of deference.² We disagree.

The Nevada Supreme Court was well aware of the correct standards. See Ennis v. State, 122 Nev. 694, 137 P.3d 1095, 1102 (2006) (en banc); Riley v. State, 110 Nev. 638, 878 P.2d 272, 277–78 (1994) (per curiam); see also Lambert v. Blodgett, 393 F.3d 943, 964–65 (9th Cir. 2004). It did not change those standards or, for that matter, increase the burden upon Brown regarding a showing of deficient performance or prejudice, under Strickland. Cf. Hardy, 849 F.3d at 818–19. To the extent that the Nevada Supreme Court chose to adopt the trial court’s determination at the state post-conviction proceedings that counsel’s representation was not deficient, that did not place an additional burden upon Brown or make the decision of the state courts improper. See Cullen v. Pinholster, 563 U.S. 170, 187–88, 131 S.Ct. 1388, 1401– 02, 179 L.Ed.2d 557 (2011); Cannedy v. Adams, 706 F.3d 1148, 1156 (9th Cir. 2013). Moreover, to the extent that the decision can be said to be ambiguous, that does not deflect us from the “more logical inference” that the correct standard was used. Mann v. Ryan, 828 F.3d 1143, 1157 (9th Cir. 2016) (en banc).

(2) Because we are not satisfied that on the other issues raised by Brown “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” we decline to issue Certificates of Appealability for those claims. Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003); see also 28 U.S.C. § 2253(c); 9th Cir. R. 22-1(e).

AFFIRMED.

FOOTNOTES

1.   See Strickland v. Washington, 466 U.S. 668, 687–96, 104 S.Ct. 2052, 2064–69, 80 L.Ed.2d 674 (1984).

2.   See Hardy v. Chappell, 849 F.3d 803, 818–19 (9th Cir. 2016).