NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KASHARD O. BROWN, 

Petitioner-Appellant, 

 v. 

BRIAN WILLIAMS, Warden; CATHERINE 

CORTEZ-MASTO, 

Respondents-Appellees.

No. 21-16668 

D.C. No. 

2:11-cv-01058-JCM-DJA 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted November 17, 2022

San Francisco, California

Before: McKEOWN and PAEZ, Circuit Judges, and SESSIONS,** District Judge.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable William K. Sessions III, United States District Judge 

for the District of Vermont, sitting by designation.

FILED

DEC 16 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Kashard Brown seeks review of a district court judgment denying his petition 

for a writ of habeas corpus. The district court certified for appeal the question of 

whether Brown’s ineffective-assistance-of-counsel claim was procedurally 

defaulted. Brown moves to expand the certificate of appealability to his claims that 

he was denied due process by incorrect jury instructions and exclusion of lay opinion 

testimony. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de 

novo a district court’s denial of a habeas petition. Ford v. Peery, 999 F.3d 1214, 

1224 (9th Cir. 2021). Where the state court declined to hear a federal claim because 

the prisoner failed to meet a state procedural requirement, the state judgment rests 

on adequate and independent state grounds that we do not review. Coleman v. 

Thompson, 501 U.S. 722, 729–30 (1991). We affirm the denial of Brown’s petition.

After Brown failed to timely present his ineffective-assistance-of-counsel 

claim—based on his trial counsel’s failure to inform the firearms expert about the 

faulty pistol stock on Brown’s shotgun and to call that expert to testify as to the effects 

of that stock—during his first state habeas proceeding, Brown presented the claim as 

part of a second or successive state habeas petition. The Nevada district court found 

this petition to be procedurally defaulted and the Nevada Supreme Court affirmed. 

Brown has not demonstrated cause to overcome this procedural default under 

Martinez v. Ryan, 566 U.S. 1 (2012), because he fails to establish that his appellate 

counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). See 
3 

Martinez, 566 U.S. at 14. Strickland requires a showing that “the deficient 

performance prejudiced the defense.” 466 U.S. at 687; see also id. at 692. Brown 

does not show such prejudice because he does not establish that, had he presented 

his ineffective-assistance-of-trial-counsel claim to the Nevada state courts in 

compliance with state procedural rules, there is a reasonable probability the courts 

would have granted his first habeas petition. See id. at 694. We therefore deny 

Brown’s petition on the certified issue.

We also deny Brown’s request to expand the certificate of appealability to his 

due process claims. See Ninth Cir. R. 22-1(e). On both claims, the Nevada Supreme 

Court concluded that the trial court erred, but the errors were harmless. Brown has 

not made a “substantial showing of the denial of a constitutional right” on either 

issue. 28 U.S.C. § 2253(c)(2). Given the other evidence supporting that the shooting 

was not an accident, reasonable jurists could not debate whether the petition should 

have come out differently on the harmless error questions. See Miller-El v. Cockrell, 

537 U.S. 322, 336 (2003).

AFFIRMED.1

1 We grant Brown’s motion to expand the record (Dkt. No. 36).