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finding that a toxicology report, "standing alone without expert testimony," was insufficient to establish the level of drugs, if any, that was present
Summary of this case from Baca v. State, Department of California Highway PatrolOpinion
No. 13-17125 No. 13-17260
03-12-2015
JOHNNY RAY BROWN, Petitioner - Appellant, v. BRIAN WILLIAMS; et al., Respondents - Appellees. JOHNNY RAY BROWN, Petitioner - Appellee, v. BRIAN WILLIAMS; et al., Respondents - Appellants.
NOT FOR PUBLICATION
D.C. No. 2:10-cv-00407-PMP-GWF MEMORANDUM Appeal from the United States District Court for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Submitted March 10, 2015 San Francisco California Before: WALLACE, M. SMITH, and WATFORD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
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Petitioner Johnny Ray Brown appeals from the district court judgment denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents cross-appeal from the district court order holding Brown's petition timely based on equitable tolling. Brown challenges his Nevada convictions for battery, sexual assault, burglary, and grand larceny, arguing that he received ineffective assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. § 2253, and, reviewing the district court's decision de novo, we affirm.
We must deny Brown's petition unless the decision of the Nevada Supreme Court "(1) . . . was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
Brown has not shown that the Nevada Supreme Court unreasonably applied the standard for ineffective assistance of counsel found in Strickland v. Washington, 466 U.S. 668 (1984). Even if Brown were correct that his trial counsel provided him with ineffective assistance, Brown has not shown that the Nevada Supreme Court unreasonably determined that prejudice was lacking under the "doubly deferential" Strickland/AEDPA standard. Cullen v. Pinholster, — U.S. —, 131 S.Ct. 1388, 1410-11 (2011). Given the substantial additional evidence presented at trial that is unaffected by Brown's ineffective assistance claims—including the victim's 911 call, documentation of her physical injuries, and Brown's subsequent flight to Michigan—it was not unreasonable for the Nevada Supreme Court to conclude that Brown's evidence of prejudice fell short of proving that it was reasonably likely that the result would have been different if Brown's counsel had taken a different approach. Harrington v. Richter, 562 U.S. 86, 111-12 (2011).
Nor has Brown shown that any of the above holdings were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Regardless of whether the findings of the Nevada Supreme Court were debatable, or whether we would have reached different conclusions in the first instance, it was not unreasonable for the Nevada Supreme Court to reach the conclusions above in light of the evidence. Wood v. Allen, 558 U.S. 290, 300-01, 303 (2010).
Because we conclude that Brown failed to show prejudice under the Strickland/AEDPA standard, we need not reach the affirmative defense of equitable tolling.
AFFIRMED.