Kevin Lenear Camp v. DWIGHT NEVEN, Warden and ATTORNEY GENERAL OF THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN LENEAR CAMP,
Petitioner - Appellant,
v.
DWIGHT NEVEN, Warden and
ATTORNEY GENERAL OF THE STATE
OF NEVADA,
Respondents - Appellees.
No. 13-15862
D.C. No. 2:09-cv-01117-MMD-
NJK
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda Du, District Judge, Presiding
Argued and Submitted January 12, 2015
San Francisco California
Before: NOONAN and CLIFTON, Circuit Judges, and RAKOFF, Senior District
Judge.**
FILED
MAR 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.

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Kevin Lenear Camp, a Nevada state prisoner, appeals the district court’s
denial of his writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C.
§ 2253(a), and we affirm in part and reverse and remand in part.
We review de novo the district court’s denial of a habeas petition. Cavitt v.
Cullen, 728 F.3d 1000, 1004 (9th Cir. 2013). Because Camp filed his federal
habeas petition after 1996, we review the state court’s ruling under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Henry v. Ryan,
720 F.3d 1073, 1078 (9th Cir. 2013). Under AEDPA, if a claim was “adjudicated
on the merits in State court proceedings,” the court may grant habeas relief only if
the state court’s decision was “contrary to, or involved an unreasonable application
of” clearly established Supreme Court precedent, or “was based on an
unreasonable determination of the facts.” 28 U.S.C. § 2254(d).
1. Due Process Claims
Camp argues that the trial court violated his due process rights by (1)
denying his pretrial motions for continuances; (2) denying his request for
additional time to call a sur-rebuttal expert; and (3) allowing the State to call a
rebuttal expert without giving him prior notice. The Nevada Supreme Court
rejected these claims on Camp’s direct appeal.
a. Pre-trial motions for continuances
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“[B]road discretion must be granted trial courts on matters of continuances;
only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a
justifiable request for delay’” would violate constitutional guarantees. Morris v.
Slappy, 461 U.S. 1, 11-12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589
(1964)).
At the time that Camp made his motions to continue, he had had two years to
prepare his defense, including expert testimony. The Nevada Supreme Court’s
conclusion that the trial court did not abuse its discretion in denying his pre-trial
motions was not unreasonable.
b. Sur-rebuttal continuance
After Camp’s case in chief, the State called Dr. Clark as a rebuttal expert
without previously informing Camp that she would be called; Camp requested a
continuance to find and prepare a sur-rebuttal expert. The trial court granted him a
24-hour continuance and agreed to pay the expert fee. Camp was unable to find a
sur-rebuttal expert in that limited time, but he indicated that he would be able to
recall his prior expert, Dr. Griest, if given another day. The trial court denied
Camp’s request for more time.
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The Nevada Supreme Court concluded that the trial court did not abuse its
discretion in denying a further continuance because Camp failed to show that he
had any new evidence to present on surrebuttal.
Camp argues that the Nevada courts violated the Supreme Court’s precedent
in Ake v. Oklahoma, 470 U.S. 68, 76 (1985). But Ake involved an indigent
defendant who was prevented from presenting any expert psychiatric testimony in
his defense. Id. at 83. Here Camp presented expert medical testimony from Dr.
Griest and was given time, albeit limited, and funds to present a sur-rebuttal expert.
Therefore, Camp has not shown that the Nevada Supreme Court violated clearly
established Supreme Court precedent in upholding the trial court’s limited sur-
rebuttal continuance.
c. The State’s presentation of surprise expert rebuttal testimony
Under Nevada law at the time of Camp’s prosecution, Camp was required to
provide the State with the name of any expert witnesses that he intended to present
in his case in chief as well as a statement on the subject matter and substance of the
expert testimony and copies of any reports prepared by the expert. See NEV. REV.
S TAT . § 174.234(2) (1999). He complied with this requirement and presented the
State with Dr. Griest’s report prior to trial. The State also had to disclose expert
testimony for its case in chief, but the State was not required to disclose Dr. Clark
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or her expert rebuttal testimony prior to trial because the statute applied only to the
State’s case in chief. See id.
We conclude that the statute imposed a non-reciprocal disclosure obligation
on Camp and thus violated the Supreme Court’s clearly established precedent in
Wardius v. Oregon, 412 U.S. 470 (1973). In Wardius, the Supreme Court
concluded that a criminal defendant’s due process rights were violated by a rule
that required the defendant to disclose details of an alibi defense when the State
was not required to disclose rebuttal witnesses. Id. The Supreme Court held “that
the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi
rules unless reciprocal discovery rights are given to criminal defendants.” Id. at
472.
The Court went on to “hold that in the absence of a strong showing of state
interests to the contrary, discovery must be a two-way street. The State may not
insist that trials be run as a ‘search for truth’ so far as defense witnesses are
concerned, while maintaining ‘poker game’ secrecy for its own witnesses.” Id. at
475. In this case, the State makes no showing of any state interest in the non-
reciprocal discovery, let alone one strong enough to justify the non-reciprocal
disclosure obligation on the defendant.
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In Wardius, the Supreme Court established the clear principle that “[i]t is
fundamentally unfair to require a defendant to divulge the details of his own case
while at the same time subjecting him to the hazard of surprise concerning
refutation of the very pieces of evidence which he disclosed to the State.” Id. at
476. Here, Camp was required to disclose the details of his defense, and then the
State used those details to prepare Dr. Clark to refute Camp’s expert testimony.
The State consulted with Dr. Clark for several weeks before trial, and her
testimony could have been presented during the State’s case in chief. Instead, the
State took strategic advantage of the statute and surprised Camp with Dr. Clark’s
rebuttal testimony, depriving Camp of a meaningful opportunity to critique Dr.
Clark’s testimony.
We conclude that allowing the State to present unnoticed expert rebuttal
testimony when Camp was required to disclose his own expert testimony on the
same issues was a violation of the Supreme Court’s precedent in Wardius, and that
the state courts were unreasonable in denying Camp relief on this ground.
A due process violation merits grant of Camp’s habeas petition only if the
error was not harmless, that is, if it had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,
638 (1993). The Supreme Court made clear that the non-reciprocal disclosure
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obligation overturned in Wardius was “fundamentally unfair.” Wardius, 412 U.S.
at 476. “Errors that undermine confidence in the fundamental fairness of the state
adjudication certainly justify the issuance of the federal writ.” Williams v. Taylor,
529 U.S. 362, 375 (2000) (Opinion of Stevens, J.).
The conflicting expert medical testimony was central to the outcome in this
case. The State was permitted a “fundamentally unfair” advantage when it was
allowed to present an unnoticed expert rebuttal witness. Camp is entitled to a new
trial. Therefore, we reverse the district court’s denial of Camp’s habeas petition
and remand with instructions to grant a writ requiring the State to release Camp
from custody unless it initiates new trial proceedings within a reasonable period of
time to be determined by the district court.
2. Brady Claims
Under Brady v. Maryland, “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.” 373 U.S. 83, 87 (1963). “Evidence is deemed prejudicial, or
material, only if it undermines confidence in the outcome of the trial.” Benn v.
Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002).
a. Child Protective Services (CPS) records
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We conclude that the Nevada Supreme Court applied Brady reasonably
because Camp was not prejudiced by the State’s untimely disclosure of the CPS
records containing evidence of Lain’s drug use. The jury found Camp guilty even
after his counsel cross-examined Lain to show Lamar and Lain’s involvement with
CPS and evidence of Lain’s drug use.
b. Medical records containing electrocardiogram (EKG) strips
We conclude that the Nevada Supreme Court’s denial of Camp’s claim that
the State failed to disclose Lamar’s complete medical records containing the EKG
strips was based on an unreasonable determination of the facts to which no
deference is owed. See § 2254(d)(2); Hurles v. Ryan, 752 F.3d 768, 790 (9th Cir.
2014). The Nevada Supreme Court denied Camp’s Brady claim based on the
doctrine of the law of the case. However, Camp could not have argued that the
State failed to disclose the EKG strips on direct appeal because the EKG strips
were not discovered until post-conviction proceeding. The Nevada Supreme Court
was put on notice that the EKG strips were likely material but it did not address
this issue.
We conclude that Camp is entitled to an evidentiary hearing to determine
whether the EKG strips could provide a better estimate of the time of Lamar’s
injury. See Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir. 2010). First, Camp has
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not “failed to develop the factual basis of [the] claim in State court proceedings,”
as § 2254(e)(2) requires, because his diligence led to the discovery of the EKG
strips in the prosecutor’s file. See Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th
Cir. 2005); Jaramillo v. Stewart, 340 F.3d 877, 882 (9th Cir. 2003). Second, under
Townsend v. Sain, an evidentiary hearing is justified where, as in this case, “there
is a substantial allegation of newly discovered evidence” and “the material facts
were not adequately developed at the state-court hearing.” 372 U.S. 293, 313
(1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1
(1992). Finally, Camp has alleged facts which, if true, would present a colorable
claim for relief. See Stanley, 598 F.3d at 624 (9th Cir. 2010). Camp alleges that a
pediatric cardiologist could use the EKG strips to determine whether Lamar had
any electrical impulse in his heart at the time when emergency medical technicians
arrived or if he was in asystole, and that this fact could move the time of injury
farther back in time, possibly when Lamar was in Lain’s custody. Therefore, the
EKG strips could help create a reasonable probability that the jury might have
found that Lain, and not Camp, inflicted the injury on Lamar that led to his death.
Accordingly, Camp would be entitled to an evidentiary hearing on the EKG
strips if we did not otherwise grant relief on his due process claim.
3. Ineffective Assistance of Counsel Claims
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Camp raises multiple claims of ineffective assistance of trial counsel (IAC).
To prevail on an IAC claim, a petitioner must show (1) that his counsel’s
performance was deficient and (2) that he was prejudiced by that deficient
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Nevada
Supreme Court rejected Camp’s IAC claims, concluding that Camp failed to show
deficient performance, sufficient prejudice, or both.
When evaluating Strickland claims under AEDPA, this court’s review is
“doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). “The
question,” therefore, “is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Harrington v. Richter, 131 S. Ct. 770,
788 (2011). Even where this court believes the state court decision was “wrong,”
that result must be upheld if “fairminded jurists could disagree on [its]
correctness.” Id. at 786.
We conclude that the Nevada Supreme Court’s rejection of Camp’s IAC
claims was not unreasonable.
4. Batson Claim
We conclude that the Nevada Supreme Court’s conclusion that the Batson
claim lacks merit was not unreasonable because Camp has not established
purposeful discrimination. See Batson v. Kentucky, 476 U.S. 79, 96-98 (1986);
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Cook v. LaMarque, 593 F.3d 810, 814 (9th Cir. 2010). Camp’s claim that the state
court erred by failing to conduct a comparative juror analysis is waived because he
did not present it to the Nevada Supreme Court.
5. Nevada’s First Degree Murder by Child Abuse Statute
We conclude that Nevada’s definition of first degree murder by child abuse
is not unconstitutionally vague. Nevada’s murder statute requires a finding of
malice, which provides the criminal intent element of the crime, and at the time of
Lamar’s death Nevada law enumerated murder by child abuse as first-degree
murder. See NEV. REV. S TAT . § 200.010(1) (1989) (amended 2005); §
200.030(1)(a) (1995) (amended 1999). The jury’s finding of malice made Lamar’s
death murder.
6. Jury Instruction
Camp argues that a jury instruction on implied malice created an
unconstitutional mandatory presumption that relieved the State of its burden to
prove every element of the charged crime. Camp did not raise this claim on his
direct appeal; the Nevada Supreme Court denied the claim on procedural grounds.
“As a rule, a state prisoner’s habeas claims may not be entertained by a
federal court when (1) a state court [has] declined to address [those] claims
because the prisoner had failed to meet a state procedural requirement, and (2) the
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state judgment rests on independent and adequate state procedural grounds.”
Maples v. Thomas, 132 S. Ct. 912, 922 (2012) (alterations in original) (internal
quotation marks omitted). This bar may be lifted “if the prisoner can demonstrate
cause for the [procedural] default [in state court] and actual prejudice as a result of
the alleged violation of federal law.” Id. (alterations in original) (internal quotation
marks omitted)
In his briefing, Camp does not address the Nevada Supreme Court’s
conclusion on procedural default and fails to show cause and actual prejudice.
7. Confrontation Clause Claim
We conclude that the Nevada Supreme Court reasonably denied this claim
because the trial court imposed reasonable restrictions on cross examination. See
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The restrictions did not
deprive Camp of his right to confrontation, particularly where Camp’s counsel
cross-examined Lain at length about her drug use and prostitution career and
stressed these points in closing argument to undermine Lain’s trustworthiness and
credibility.
8. Cumulative Error
Camp also brings a claim under the cumulative error doctrine. See Parle v.
Runnels, 505 F.3d 922, 927 (9th Cir. 2007). We conclude that Camp has not
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established that “the combined effect of multiple trial court errors” violated his due
process rights by “render[ing] the resulting criminal trial fundamentally unfair.”
Id.
We AFFIRM in part and REVERSE and REMAND in part for further
proceedings consistent with this memorandum.
Each party shall bear its own costs.
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