FILED
NOT FOR PUBLICATION
OCT 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER ADAM DOLLAR, No. 15-16921
Petitioner-Appellant, D.C. No.
2:13-cv-01952-JCM-GWF
v.
HAROLD WICKHAM; ATTORNEY MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted September 15, 2017
San Francisco, California
Before: SCHROEDER and FRIEDLAND, Circuit Judges, and WHALEY,**
District Judge.
Christopher Dollar, a Nevada state prisoner, appeals the dismissal of his
habeas petition challenging the sentence he received after pleading guilty to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
charges of robbery and conspiracy to commit robbery. Dollar claims ineffective
assistance of counsel at sentencing because his counsel failed to obtain available
evidence about his mental disabilities that might have resulted in a lower sentence.
The district court dismissed his petition as unexhausted.
The dismissal was in error. “An unexhausted claim will be procedurally
defaulted, if state procedural rules would now bar the petitioner from bringing the
claim in state court.” Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) (en
banc). When the federal district court dismissed Dollar’s petition, it was clear that
Nevada’s procedural rules would bar his new claim, and a state district court had
already recognized as much. In Nevada, a prisoner may overcome such hurdles
only if he or she can show cause and prejudice. See Nev. Rev. Stat. § 34.726(1);
id. § 34.810(3). Nevada does not treat limited mental capacity or incarceration as
cause, see, e.g., Phelps v. Dir., Nev. Dep’t of Prisons, 764 P.2d 1303, 1306 (Nev.
1988), superseded by statute on other grounds as stated in State v. Haberstroh, 69
P.3d 676, 681 (Nev. 2003), and has expressly declined to adopt a state-law analog
to Martinez v. Ryan, 566 U.S. 1 (2012), meaning that inadequate assistance of
counsel during initial-review collateral proceedings1 also does not constitute cause
under state law, see Brown v. McDaniel, 331 P.3d 867, 872 (Nev. 2014) (en banc)).
1
The term “initial-review collateral proceedings” means “collateral proceedings
which provide the first occasion to raise a claim of ineffective assistance at trial.”
Martinez, 566 U.S. at 8.
2
The Nevada Supreme Court reaffirmed these principles when it held, after Dollar’s
federal petition was dismissed, that his new claim was procedurally barred under
state law.2
The federal district court should have treated the petition as procedurally
defaulted and then decided whether, under federal law, Dollar could demonstrate
cause and prejudice to overcome the default. We therefore reverse and remand
with instructions to decide that question in light of Martinez.
REVERSED and REMANDED.
2
As requested by both parties, the court takes judicial notice of that decision. See
Fed. R. Evid. 201(b).
3