NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN OLIVER SNOW, No. 15-99012
Petitioner-Appellant, D.C. No. 2:03-cv-00292-MMD-CWH
v.
MEMORANDUM*
RENEE BAKER, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted July 8, 2020
San Francisco, California
Before: McKEOWN, MURGUIA, and WATFORD, Circuit Judges.
John Oliver Snow, who was convicted of conspiracy to commit murder and
first degree murder with use of a deadly weapon and sentenced to death on the
murder count in Nevada state court, appeals from the district court’s denial of his
petition for writ of habeas corpus. The parties are familiar with the facts and the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
procedural history, so we do not repeat them here. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253(a), and we affirm in part, reverse in part, reserve
judgment on the uncertified claims, and remand to the district court for further
proceedings.
We review de novo the district court’s conclusions as to procedural default.
Rodney v. Filson, 916 F.3d 1254, 1258 (9th Cir. 2019). The district court correctly
concluded that Snow procedurally defaulted his Claims 1 (Brady1 and Napue2) and
2 (Massiah3) because the Nevada Supreme Court made clear that it rested its
decision denying relief on an independent state ground.
We also agree with the district court that Snow has not shown cause that
would excuse the default as to Claim 1 because Snow did not explain how he was
prevented from bringing that claim in a timely manner. See Henry v. Ryan, 720
F.3d 1073, 1083 (9th Cir. 2013) (the state’s suppression of the evidence did not
establish cause because the petitioner “suspected, … alleged and had evidentiary
support for his claim more than a decade before commencing federal habeas
proceedings”).
However, the district court erred in its analysis of cause with respect to
Claim 2. The state did not disclose the critical piece of evidence in support of
1
Brady v. Maryland, 373 U.S. 83 (1963).
2
Napue v. Illinois, 360 U.S. 264 (1959).
3
Massiah v. United States, 377 U.S. 201 (1964).
2
Claim 2—the visitation logs reflecting Detective Miller’s multiple visits with
Richard Morelli—until January 12, 2007, ten months before Snow filed his first
amended federal petition. Accordingly, Snow successfully demonstrated cause for
the procedural default of Claim 2. See id.; see also Strickler v. Greene, 527 U.S.
263, 289 (1999).
Because of its ruling on cause, the district court did not evaluate whether
Snow showed prejudice to overcome the procedural default of Claim 2. Morelli’s
testimony, which occupied roughly half of the state’s evidentiary presentation at
the penalty hearing, went to the heart of why a life-without-parole sentence would
not be a deterrent to illegal behavior—Morelli testified that Snow wanted to kill a
state witness to prevent her from testifying or to exact revenge for exposing the
conspiracy. The prosecution offered Morelli a substantial benefit—a five-year
sentence reduction by virtue of his probation not being revoked. Defense counsel
treated Morelli’s testimony as so damaging that he went to the extraordinary
measure of calling himself as a witness and also addressed the testimony
extensively during the closing argument. Snow demonstrated prejudice to
overcome the procedural default of Claim 2. We reverse dismissal of Claim 2 and
remand for consideration of the merits. We note that our dismissal of Claim 1 does
not preclude the district court from referencing common evidence underlying both
Claims 1 and 2 for purposes of further proceedings. Contrary to the district court’s
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finding, Claim 2 is not untimely under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). As discussed above, Snow obtained critical
evidence in support of the claim within the one-year AEDPA deadline.
The Nevada Supreme Court determined that Snow’s claims for ineffective
assistance of counsel (Claims 10 and 16) are also procedurally defaulted. Snow
seeks relief under Martinez v. Ryan, 566 U.S. 1 (2012). The Supreme Court’s
decision in Davila v. Davis, __U.S. __, 137 S. Ct. 2058, 2056–66 (2017),
forecloses Snow’s claim with respect to appellate counsel (Claim 16). However,
as Snow argued and the state’s counsel acknowledged at oral argument, Martinez
relief is not foreclosed with respect to section 34.726 of the Nevada Revised
Statutes, Nevada’s statute of limitations bar. See Williams v. Filson, 908 F.3d 546,
580 (9th Cir. 2018) (remanding to the district court to determine whether
petitioner’s procedural default under section 34.726 is excused under Martinez).
Further, “the question of cause is … ‘a question of federal law,’’’ not state law.
Bradford v. Davis, 923 F.3d 599, 610 n.2 (9th Cir. 2019) (quoting Murray v.
Carrier, 477 U.S. 478, 489 (1986)). We reverse dismissal of Claims 10A, 10C,
10E, 10H, and 10K (in part) and remand for consideration under Martinez.
With the exception of Claim 2 as discussed above, we affirm the district
court’s statute of limitations rulings for the reasons set out by the district court.
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Because Snow did not rebut the presumption that the Nevada Supreme Court
adjudicated his claim of juror bias on the merits, AEDPA deference applies to this
claim. See Bell v. Uribe, 748 F.3d 857, 863–64 (9th Cir. 2014). The trial court
evaluated the answers of the jurors at issue, and the Nevada Supreme Court
determined that any claimed ambiguity was insufficient to overcome the
presumption of correctness owed to the trial court’s findings. The Nevada
Supreme Court’s rejection of the claim was neither contrary to nor an unreasonable
application of federal law, and it was also not based on an unreasonable
determination of the facts in light of the evidence before the trial court.
With respect to the proffered admission of testimony from Terry Hardaway
and David Springfield, the state court’s ruling regarding the inapplicability of
section 51.069 of the Nevada Revised Statutes is not subject to federal habeas
review. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). Further, the
statements were not sufficiently reliable to fall within the narrow constitutional
exception under Chambers v. Mississippi, 410 U.S. 284 (1973). Finally, following
an evidentiary hearing, the state court reasonably determined that counsel made a
strategic decision with respect to this testimony. This claim fails under AEDPA.
We do not reach the uncertified issues at this juncture and reserve judgment
on those issues. The panel shall retain jurisdiction of this case.
AFFIRMED in part and REVERSED in part.
5