Ricky Cooper v. Dwight Neven
Filing
FILED OPINION (PROCTER R. HUG, DOROTHY W. NELSON and M. MARGARET MCKEOWN) AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Each party shall bear its own costs on appeal. Judge: PRH , Judge: DWN Authoring, Judge: MMM . FILED AND ENTERED JUDGMENT. [7701632]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICKY DENNIS COOPER,
Petitioner-Appellant,
v.
DWIGHT NEVEN,
Respondent-Appellee.
No. 08-16973
D.C. No.
3:97-CV-00222JCM-RAM
OPINION
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
December 10, 2010—San Francisco, California
Filed April 1, 2011
Before: Procter Hug, Jr., Dorothy W. Nelson, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge D. W. Nelson
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COUNSEL
Franny A. Forsman, John C. Lambrose, and Danice Arbor
Johnson, Las Vegas, Nevada, for the petitioner-appellant.
Catherine Cortez Masto, Robert E. Wieland, and Alicia L.
Lerud, Reno, Nevada, for the respondent-appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Rickey 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, 83 S. Ct. 1194 (1963), and
Napue v. Illinois, 79 S. Ct. 1173 (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.
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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
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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).
[1] 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 (1999);
Picard v. Connor, 404 U.S. 270, 275 (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
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facts. Anderson v. Harless, 459 U.S. 4, 6-7 (1982); Picard,
404 U.S. at 275-76; 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. 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, they
are exhausted and can be considered in federal habeas proceedings.
[2] 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 85156 (Stevens, J., dissenting) (discussing relationship and distinction between doctrines of exhaustion and procedural
default, cited with approval by the majority, see id. at 848).
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 (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 (1985); Ford
v. Georgia, 498 U.S. 411, 423 (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
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750; Sawyer v. Whitley, 505 U.S. 333, 339-40 (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 (1986); McCleskey v. Zant, 499
U.S. 467, 497 (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 (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 (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.
[3] 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 exhausted but procedurally
defaulted. Coleman, 501 U.S. at 732. For both kinds of
default, the relevant question is whether Cooper can show
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cause and prejudice to excuse the error. If he can, either form
of default would be excused. See id. at 750; Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993); Ortiz v. Stewart, 149
F.3d 923, 932 (9th Cir. 1998). Therefore, it was unnecessary
for the district court to address whether Cooper’s claims were
exhausted, as the issue was rendered moot by the district
court’s procedural default analysis.
IV.
TIMELINESS UNDER AEDPA’S STATUTE OF
LIMITATIONS
Respondents next argue that the district court erred in proceeding to its procedural bar analysis before first examining
whether any of Cooper’s claims were untimely under
AEDPA’s statute of limitations. Respondents contend that the
timeliness analysis precedes and renders unnecessary the procedural bar analysis.
[4] Respondents are incorrect. Because the court concluded Cooper had not properly raised his claims in state
court (i.e., they were procedurally defaulted based on failure
to comply with state court procedural rules), it did not need
to address whether Cooper had also failed to comply with the
federal statute of limitations. The procedural default issue was
dispositive, so the court did not need to consider alternative
reasons for dismissing the petition.
[5] However, respondents are correct that, because we
reverse and remand on three of Cooper’s claims, the district
court will have to address the State’s timeliness argument
before it may grant relief on any of those claims. See Daniels
v. United States, 532 U.S. 374, 381 (2001) (“Procedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit
access to review on the merits of a constitutional claim.”).
Because we reverse many of the district court’s procedural
default findings (as explained below), whether any of Cooper’s claims run afoul of AEDPA’s statute of limitations is a
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separate issue that must be addressed in the first instance by
the district court on remand. See Whalem/Hunt v. Early, 233
F.3d 1146, 1148 (9th Cir. 2000) (en banc) (noting that sorting
out issues related to timeliness and tolling are “highly factdependent, and [ ] the district court is in a better position to
develop the facts and assess their legal significance in the first
instance”).
V.
GROUNDS 3A AND 4
[6] The district court dismissed Cooper’s petition, including Grounds 3A and 4, as procedurally defaulted based on the
state court’s dismissal of them under state procedural rules.
Ground 3A is a Due Process, Fair Trial, and Equal Protection
claim under the Fifth and Fourteenth Amendments, based on
the prosecutor’s alleged misconduct, specifically “improper
vouching and commentary regarding the credibility of witness
Donell Wells.” Ground 4 is a separate Due Process, Fair Trial,
and Equal Protection claim under the Fifth and Fourteenth
Amendments, based on the trial court’s allegedly improper
questioning and vouching for Wells’s credibility.
[7] According to Cooper, the Nevada Supreme Court
denied Grounds 3A and 4 on the basis of the “law of the
case,” stating that it had already “considered and rejected similar claims raised by Cooper in his first post-conviction petition” and that its earlier decision could not be “avoided by
more detailed and precisely focused argument.” Cooper
argues that Grounds 3A and 4 were denied as already litigated
and therefore are properly presented for federal review. We
disagree.
As a preliminary matter, Respondents argue that this issue
is not properly before the court. However, this argument is
without merit. The Certificate of Appealability (“COA”) covers the issue of “whether the district court properly dismissed
appellant’s third amended habeas petition as procedurally
defaulted.” Cooper’s contentions with respect to Grounds 3A
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and 4 concern the question of whether the district court erred
in finding these claims defaulted. Therefore, they are properly
before this panel. See Little v. Crawford, 449 F.3d 1075, 1079
n.4 (9th Cir. 2006) (addressing an issue relevant to a certified
issue because it is “ ‘predicate to an intelligent resolution of
the question presented’ ”) (quoting Ohio v. Robinette, 519
U.S. 33, 38 (1996)).
With respect to Ground 3A, Cooper’s third state habeas
petition raised this claim for the first time.1 On July 24, 2000,
the Nevada Supreme Court “affirmed the district court’s judgment [dismissing all claims in Cooper’s third state habeas
petition] except in regard to Cooper’s claim that a witness to
the murder, Donnel Wells, had recanted his trial testimony
and alleged that he had been pressured and paid to testify.”
Although the Nevada Supreme Court recognized the possibility that Cooper could show cause and prejudice with respect
to the Brady violation, it held “as to the remaining contentions
in appellant’s petition [including Ground 3A], the district
court did not err in determining that appellant failed to demonstrate adequate cause or prejudice to excuse the procedural
defects.”
[8] The court’s “law of the case” statements to which Cooper refers occurred during the subsequent appeal only on the
narrow issue of Brady. On March 2, 2006, the Nevada
1
On September 21, 1988, the Nevada Supreme Court found there was
no improper bolstering of Wells’s testimony by the court or the prosecution, but those facts were presented as ineffective assistance of counsel
claims rather than due process claims. In his second state habeas petition,
Cooper “alleged that his right to due process was violated by the district
attorney and the district court during pretrial, trial and post-conviction proceedings.” However, the only facts supporting this due process claim were
unrelated to the improper bolstering claim—the due process claim in the
second state habeas petition related to media coverage at the time of trial.
The Nevada Supreme Court affirmed the trial court’s denial of that petition, because “no . . . explanation was offered” of the due process violations.
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Supreme Court found that Cooper failed to demonstrate prejudice from the Brady violations, despite showing cause. In
finding no prejudice, the state court rejected Cooper’s claim
that Wells’s recantation was inherently prejudicial because
the prosecution and court improperly bolstered his testimony.
In so holding, the state court referenced its September 21,
1988 decision, which held there was no improper bolstering
(the factual bases for Grounds 3A and 4) and declined to
revisit that opinion or find increased risk of prejudice due to
the alleged bolstering because the state court had already
rejected those bolstering claims on the merits.
[9] We therefore disagree with Cooper’s contention that
the Nevada Supreme Court denied Grounds 3A and 4 on the
basis of the “law of the case,” stating that it had already “considered and rejected similar claims raised by Cooper.” Cooper
refers to the March 2, 2006 Nevada Supreme Court decision
—a decision reviewing a limited remand to the state district
court for an evidentiary hearing on whether the Brady violation (recanted testimony) was excused from procedural
default by a showing of cause and prejudice. The limited
remand for an evidentiary hearing with respect to prejudice
from the Brady violation shaped a limited final decision by
the state supreme court, holding only that there was no prejudice from the Brady violation and not itself denying Grounds
3A and 4. Cooper argued that the misconduct underlying
Grounds 3A and 4 heightened the prejudice from the Brady
violation—in finding no prejudice, the Nevada Supreme
Court merely noted it had already rejected those claims of
misconduct and thus declined to find the risk of prejudice was
heightened. Rather than deciding the question of whether
Ground 3A should be dismissed (and on what basis), the
Nevada Supreme Court merely referenced its prior rulings
with respect to alleged improper bolstering to support its final
decision that there was no prejudice from any Brady violation.
Its earlier decision on July 24, 2000, is thus the relevant one
for purposes of procedural default on Ground 3A and, in that
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decision, it held that Cooper had “failed to demonstrate adequate cause or prejudice to excuse the procedural defects.”
[10] With respect to Ground 4, Cooper never exhausted
this claim in state court in the first place. Unlike Ground 3A,
which Cooper raised in his third state habeas petition, Cooper
never alleged Ground 4 of the federal petition, that the court
violated his due process rights through improper bolstering.
Thus, the district court did not err in finding this claim procedurally defaulted. See Coleman, 501 U.S. at 732 (unexhausted
claims that would be untimely if the petitioner attempted to
exhaust them now are procedurally defaulted)).
[11] We therefore affirm the district court’s finding that
Grounds 3A and 4 were procedurally defaulted.
VI.
GROUNDS 7A(3), 8(5), and 8(3)
[12] Cooper argues that the district court erred in finding
Grounds 7A(3), 8(5), and 8(3) of his habeas petition procedurally defaulted (because they were re-presented in his 2006
petition) rather than exhausted (because they were presented
in his first petition). Ground 7A(3) is an IAC claim based on
trial counsel’s failure to object to alleged prosecutorial misconduct. Ground 8(5) is an IAC claim based on appellate
counsel’s failure to raise the trial court’s alleged improper
bolstering of Wells’s testimony. Ground 8(3) is an IAC claim
based on appellate counsel’s failure to raise the prosecutor’s
alleged misconduct in vouching for Wells’s credibility.
[13] Petitioners are not required to exhaust their claims
repeatedly before proceeding to federal court. Boerckel, 526
U.S. at 844. If a petitioner properly argued his claims through
“one complete round of the State’s established appellate
review process” during an earlier petition, id. at 845, they are
exhausted and can be considered in federal habeas proceedings. Cooper argues that the Nevada Supreme Court affirmed
the trial court’s denial of these claims on the merits during his
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first round of post-conviction review. Therefore, according to
Cooper, these claims are not procedurally barred. We agree.
Ground 7A(3), failure to object to alleged prosecutorial
misconduct, was properly exhausted in Cooper’s first state
post-conviction proceeding. This claim was raised in the first
amended petition and discussed in Cooper’s brief to the
Nevada Supreme Court. The Nevada Supreme Court
addressed the claim and denied it on the merits. Similarly,
Ground 8(5), appellate counsel’s failure to raise the trial
court’s allegedly improper bolstering of Wells’s testimony,
was properly exhausted at the same time. Cooper raised it in
his first state petition, discussed it in his appellate brief, and
the Nevada Supreme Court denied it on the merits. The
Nevada Supreme Court later confirmed that it had addressed
the trial court’s allegedly improper conduct on the merits.
Ground 8(3), appellate counsel’s failure to raise the prosecutor’s misconduct in vouching for Wells’s credibility, presents a slightly different issue. Cooper raised this claim in his
appellate brief during his first state post-conviction proceeding and the Nevada Supreme Court denied it on the merits.
Furthermore, the Nevada Supreme Court later confirmed that
it had addressed the question of prosecutorial misconduct on
the merits. Unlike Grounds 7A(3) and 8(5) discussed above,
Cooper did not raise Ground 8(3) until his appellate brief in
state court. However, we have previously held that if the highest state court considers the merits of the claim, then exhaustion is satisfied. See Greene v. Lambert, 288 F.3d 1081, 1086
(9th Cir. 2002) (holding that petitioner exhausted claim when
it was “actually considered at least once on the merits by the
highest state court”) (citing Castille v. Peoples, 489 U.S. 346,
350 (1989)). Thus, because the Nevada Supreme Court “adjudicated the claim on the merits, then the claim may proceed.”
Id. at 1086.
[14] Because each of these grounds was denied on the
merits in the Nevada Supreme Court, we reverse the district
court’s dismissal of these claims as procedurally defaulted.
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VII.
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GROUNDS 9 AND 10
[15] Next, Cooper alleges that the district court erred in
finding Grounds 9 and 10 procedurally defaulted. Ground 9
is an alleged Fifth and Fourteenth Amendment due process
violation stemming from the state trial court’s failure to conduct an in camera inspection of the prosecutor’s trial file during the post-conviction evidentiary hearing. Ground 10 is an
alleged Fifth and Fourteenth Amendment due process violation arising from the State’s destruction or loss of the prosecutor’s trial notes.
Both of these grounds stem from activities arising out of
the state trial court’s consideration of his last state habeas
petition. Cooper argues that they were denied on the merits
(rather than on procedural default grounds) by the Nevada
Supreme Court on appeal from the denial of that last petition,
and that they are therefore available for federal review.
[16] We affirm the district court’s dismissal of Grounds 9
and 10. Regardless of the procedural default status of these
claims, they are not cognizable for federal habeas review. See
Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (“[A]
petition alleging errors in the state post-conviction review
process is not addressable through habeas corpus proceedings.”).
VIII.
BRADY AND NAPUE RELATED CLAIMS
[17] Finally, Cooper argues that the district court erred in
dismissing his Brady and Napue claims as procedurally
defaulted. Cooper does not dispute that he defaulted on these
claims; rather, he argues that the state procedural rules under
which the Nevada courts denied his claims were not independent of federal law. We agree.
[18] The Nevada state courts found Cooper’s last state
petition barred by two state procedural rules: Nevada Revised
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Statutes §§ 34.726(1) and 34.810(2). Both of those rules contain a cause-and-prejudice exception. §§ 34.726(1), 34.810(3).
Cooper argues that the Nevada Supreme Court’s cause and
prejudice analysis was not independent of federal law because
it was based on the merits of his federal Brady claim.2
When a federal constitutional claim is antecedent to a state
court procedural determination, it does not preclude federal
review. See Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir.
2003). In Bennett, we noted the longstanding rule that
“[f]ederal habeas review is not barred if the state decision
fairly appears to rest primarily on federal law, or to be interwoven with the federal law.” Id. (quotations omitted); see
also La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001)
(“For a state procedural rule to be “ ‘independent,’ ” the state
law basis for the decision must not be interwoven with federal
law.” (citing Michigan v. Long, 463 U.S. 1032, 1040-41
(1983))).
Although respondents point out that both rules have been
held to be independent and adequate in previous Ninth Circuit
cases, respondents ignore the case-by-case inquiry required
for us to conclude that a state court decision is based on independent grounds. See Vang v. Nevada, 329 F.3d 1069, 1075
(9th Cir. 2003) (holding that Nev. Rev. Stat. § 34.810 was
independent where the court did not “consider the merits of
a constitutional claim when deciding whether or not to apply
the bar”); Bargas v. Burns, 179 F.3d 1207, 1213-15 (9th Cir.
1999) (finding procedural default based on an independent
rule where the petitioner could have raised his claim on a previous appeal); Moran v. McDaniel, 80 F.3d 1261, 1268-70
(9th Cir. 1996) (holding a Nevada state rule independent
where the court only discussed the merits of the claim
“strictly for the purpose of demonstrating that [Moran] cannot
overcome his procedural defaults by a showing of cause and
2
Cooper does not make an argument as to the adequacy of the state procedural rules. Therefore, we do not address it here.
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prejudice”); see also LaCrosse, 244 F.3d at 705-06 (explaining that California Supreme Court’s denial of petition based
on untimeliness would not bar federal review unless its “determin[ation] that [petitioner’s] allegation of constitutional
error did not meet the criteria for the error of constitutional
magnitude exception” was based solely on state constitutional
law).
[19] In this case, the Nevada Supreme Court explicitly
relied on its federal Brady analysis as controlling the outcome
of its state procedural default analysis. It stated, “The second
and third Brady components parallel the good cause and prejudice necessary to overcome the procedural bars; therefore,
proving that the State withheld evidence generally establishes
cause, and proving that the withheld evidence was material
establishes prejudice.” Unlike other cases, where discussion
of the merits of a claim occurs simply to determine whether
the claim could have been raised earlier, here the claim is
itself the justification for the default. As the Nevada Supreme
Court explained, in the context of Brady claims, the merits of
the claim dovetail exactly with the cause-and-prejudice analysis. Thus, its decision did not rest on an independent and adequate state ground and does not bar federal habeas review.
See Ake, 470 U.S. at 74-75 (finding Oklahoma waiver rule not
independent because there was an exception for “fundamental
trial error,” which in this case rested on “the determination of
whether federal constitutional error has been committed”).
[20] Therefore, we reverse the district court’s finding of
procedural default with respect to Cooper’s Brady and Napue
related claims, and remand to the district court for further proceedings.
IX.
CONCLUSION
We affirm the district court’s dismissal of Cooper’s petition
with respect to Grounds 3A, 4, 9, and 10, reverse its dismissal
with respect to Grounds 7A(3), 8(3), and 8(5), reverse its dis-
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missal with respect to the Brady and Napue claims, and
remand to the district court for further proceedings consistent
with this opinion.
Each party shall bear its own costs.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
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