FILED
NOT FOR PUBLICATION NOV 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON EVAN BROWNE, ) No. 10-17650
)
Petitioner - Appellant, ) D.C. No. 3:07-cv-00290-RCJ-RAM
)
v. ) MEMORANDUM*
)
RENEE BAKER; NEVADA )
ATTORNEY GENERAL, )
)
Respondents - Appellees. )
)
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Submitted November 4, 2013**
San Francisco, California
Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.
Jason Evan Browne appeals the district court’s denial of his petition for a
writ of habeas corpus. See 28 U.S.C. § 2254. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
(1) Browne first argues that his right to due process under the Fourteenth
Amendment to the United States Constitution was violated when the jury was
improperly instructed on the deliberation element of first degree murder. See Nev.
Rev. Stat. § 200.030(1)(a). We disagree. The Nevada Supreme Court determined
that the instruction regarding deliberation was no longer proper, but that the new
instructional requirements would not apply to defendants whose cases were final
when the new requirements were adopted. See Nika v. State, 124 Nev. 1272,
1287–88, 198 P.3d 839, 850 (2008). We ultimately agreed with the Nevada
Supreme Court’s determination. See Babb v. Lozowksy, 719 F.3d 1019, 1028–30
(9th Cir. 2013). Browne has waived1 any argument that his conviction was not
final before 2000 when the law of Nevada changed.2 In any event, we agree with
the district court that on the facts of this case any error in failing to apply the new
instructional requirements was harmless. See Fry v. Pliler, 551 U.S. 112, 116, 127
S. Ct. 2321, 2325, 168 L. Ed. 2d 16 (2007); Brecht v. Abrahamson, 507 U.S. 619,
637–38, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353 (1993). Therefore, the district
court did not err.
1
Arguments not raised in the opening brief are waived. See Brooks v. City
of San Mateo, 229 F.3d 917, 922 n.1 (9th Cir. 2000); see also Greenwood v. FAA,
28 F.3d 971, 977 (9th Cir. 1994).
2
See Byford v. State, 116 Nev. 215, 235–36, 994 P.2d 700, 713 (2000).
2
(2) Browne next asserts that his right to confrontation under the Sixth
Amendment to the United States Constitution was violated when evidence
regarding statements by his victim were admitted at his trial. However, on this
record we are unable to say that the Nevada Supreme Court unreasonably
determined3 that certain statements were not hearsay at all,4 and to the extent that
Browne’s right to confrontation was violated by admission of any of the
statements, the error was harmless.5 Again, the district court did not err.
(3) Finally, Browne asserts that the Nevada Supreme Court unreasonably
determined that his counsel were not ineffective when they failed to present
evidence of his psychological and mental infirmities to the jury at the guilt phase
of his trial. Not so. Especially when we give the double deference6 we owe in this
area, we are unable to say that it was unreasonable to hold that counsels’ tactical
3
See Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166, 1174, 155 L. Ed.
2d 144 (2003); see also Williams v. Taylor, 529 U.S. 362, 405–06, 120 S. Ct.
1495, 1519–20, 146 L. Ed. 2d 389 (2000).
4
See Tennessee v. Street, 471 U.S. 409, 413–14, 105 S. Ct. 2078, 2081–82,
85 L. Ed. 2d 425 (1985); Winzer v. Hall, 494 F.3d 1192, 1194, 1198–99 (9th Cir.
2007); Shults v. State, 96 Nev. 742, 747–48, 616 P.2d 388, 392 (1980).
5
See Brecht, 507 U.S. at 623, 637–38, 113 S. Ct. at 1713–14, 1721–22;
Babb, 719 F.3d at 1033.
6
See Cullen v. Pinholster, __ U.S. __, __, 131 S. Ct. 1388, 1403, 179 L. Ed.
557 (2011).
3
decision “fell below an objective standard of reasonableness,”7 or, for that matter,
that “there is a reasonable probability that . . . the result of the proceeding would
have been different”8 if the evidence had been presented.
AFFIRMED.
7
See Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674 (1984).
8
Id. at 694, 104 S. Ct. at 2068.
4