Kelly Koerner v. George A. Grigas

Opinion by Judge D.W. NELSON; Dissent by Judge BEEZER.

OPINION

Petitioner Kelly Koerner (“Koerner”), a Nevada prisoner serving a sentence of life imprisonment without the possibility of parole, appeals the district court’s dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254 . On appeal, Koer-ner' has pursued only his claim that he was denied a direct appeal from his original conviction. The district court dismissed this claim as procedurally defaulted because it found that the Nevada Supreme Court had relied on an independent and adequate state procedural ground in denying the claim. Finding that our analysis is controlled by a recent en banc decision of this Court, we reverse, holding that the Nevada Supreme Court did not rely on an independent and adequate state ground and that Koerner’s denial of direct appeal claim is therefore not procedurally defaulted.

FACTUAL AND PROCEDURAL BACKGROUND

Kelly Koerner is guilty of a brutal murder. He does not now claim innocence, and has not done so since pleading guilty. He does, however, raise questions about the fairness of the process by which he came to be imprisoned for the rest of his life, and the possible…

dissenting:

Today’s opinion concludes that it was error to look to the circumstances surrounding an ambiguous state court order in determining whether the petitioner’s ineffective assistance of trial counsel claim was procedurally defaulted. Today’s decision ignores the clear teachings of the Supreme Court in Coleman v. Thompson, 501 U.S. 722 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991) and Ylst v. Nunnemaker, 501 U.S. 797 , 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991). I respectfully dissent.

I

Kelly Koerner is currently serving a life without parole sentence in Nevada for the murder of his former wife. After Koerner pleaded guilty to first-degree murder, he elected not to appeal his conviction. Koer-ner then initiated a number of collateral challenges to his conviction in the Nevada state courts.

In his third round of state collateral challenges (“Third Petition”), Koerner raised a claim for the first time that he was denied the constitutional right to effective assistance of trial counsel because his trial counsel failed to- file a direct appeal. The Nevada district court denied this claim and five others on the ground that Koerner’s petition was a successive petition under…

328 F.3d 1039 Kelly KOERNER, Petitioner-Appellant, v. George A. GRIGAS, Respondent-Appellee. No. 01-15345. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 7, 2002. Filed April 28, 2003. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Kelly Koerner, Petitioner-Appellant, Carson City, NV, appearing pro se. David K. Neidert, Deputy Attorney General, Carson City, NV, for Respondent-Appellee. Appeal from the United States District Court for the District of Nevada; Edward C. Reed, District Judge, Presiding. D.C. No. CV-97-00207-ECR/VPC. Before D.W. NELSON, BEEZER and McLANE WARDLAW, Circuit Judges. Opinion by Judge D.W. NELSON; Dissent by Judge BEEZER. OPINION D.W. NELSON, Senior Circuit Judge. 1 Petitioner Kelly Koerner ("Koerner"), a Nevada prisoner serving a sentence of life imprisonment without the possibility of parole, appeals the district court's dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254 . On appeal, Koerner has pursued only his claim that he was denied a direct appeal from his original conviction. The district court dismissed this claim as procedurally defaulted because it found that the Nevada Supreme Court…