9th Circuit dismisses Nevada's appeal as moot after the state itself negotiated a new misdemeanor…

Record source: CourtListener

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LAMAR BROWN, No. 24-4725 D.C. No. Petitioner - Appellee, 2:22-cv-00564- RFB-BNW v. RONALD OLIVER; ATTORNEY GENERAL OF THE STATE OF OPINION NEVADA, Respondents - Appellants. Appeal from the United States District Court for the District of Nevada Richard F. Boulware, II, District Judge, Presiding Argued and Submitted February 10, 2026 San Francisco, California July 16, 2026 Before: N. Randy Smith, Jacqueline H. Nguyen, and Gabriel P. Sanchez, Circuit Judges. Opinion by Judge Sanchez 2 BROWN V. OLIVER SUMMARY * Habeas Corpus The panel dismissed as moot the State of Nevada’s appeal from the district court’s order vacating Lamar Brown’s state felony conviction. After the district court’s order, the State proceeded to negotiate and secure a new plea deal pursuant to which Brown has now been reconvicted for a misdemeanor conviction for the same offense and has been sentenced for that misdemeanor conviction by the state court. Because the State voluntarily entered a new legally binding plea agreement with Brown regarding his lifetime supervision violation which Brown has a due process right to enforce, this Court cannot afford the State any relief by reversing the district court’s order regarding his initial conviction. The panel therefore dismissed the State’s appeal as moot. COUNSEL Kimberly Sandberg (argued), Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellee. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  BROWN V. OLIVER 3 Jeffrey M. Conner (argued), Chief Deputy Solicitor General; Brooke D. Georguson, Deputy Attorney General; Aaron D. Ford, Nevada Attorney General; Office of the Nevada Attorney General, Carson City, Nevada; for Respondents- Appellants. OPINION SANCHEZ, Circuit Judge: The State of Nevada seeks to appeal the district court’s habeas order vacating Brown’s state felony conviction. The problem is, after the federal district court’s order, the State proceeded to negotiate and secure a new plea deal with Brown. Pursuant to that deal, Brown has now been reconvicted for a misdemeanor conviction for the same offense and has been sentenced for that misdemeanor conviction by the state court. Brown’s intervening misdemeanor conviction and sentence means that this appeal of the district court’s vacatur of Brown’s felony conviction can provide no effective relief to the State. Accordingly, we dismiss the State’s appeal as moot. I. On December 1, 2015, Lamar Brown pleaded guilty to a felony violation of lifetime supervision, for charges of “failing to participate in counseling as deemed necessary by Nevada Division of Parole and Probation and/or by failing to report to Nevada Division of Parole and Probation as directed and/or by changing his address without first obtaining permission from his supervising officer.” For this 4 BROWN V. OLIVER conviction, Brown was sentenced to the maximum sentence of 5 to 20 years imprisonment. After exhausting his appeals and state habeas petitions in state court where Brown’s claims were denied on their merits, Brown filed the 28 U.S.C. § 2254 habeas petition in federal district court that is the subject of this appeal. Brown asserted in relevant part that he received ineffective assistance of counsel when his attorney advised him to plead guilty to a felony violation of lifetime supervision and for not advising him to withdraw his plea prior to sentencing. On June 26, 2024, the district court granted Brown’s petition for a conditional writ of habeas corpus based on his ineffective assistance of counsel claims. The district court ordered that Brown’s felony conviction be vacated and noted at the close of its order that “[w]ithin 30 days of the later of (1) the conclusion of any proceedings seeking appellate or certiorari review of this court’s judgment, if affirmed, or (2) the expiration for seeking such appeal or review, the state court must hold a status conference to consider the next steps, if any . . .” regarding Brown’s alleged lifetime supervision violation. On July 23, 2024, the Nevada attorney general’s office filed a notice of appeal from the district court’s order. On August 15, 2024, the local prosecutor and Brown’s appointed public defender (both different than the counsel on the federal habeas case) met with the state court judge for a status conference. At that meeting, the local prosecutor did not notify the state court judge that the State had filed an appeal from the district court’s order. The state court remanded the case to the state Justice Court for the prosecutor to “go forward with the charges as [he] see[s] fit.” The local prosecutor negotiated and secured a new plea  BROWN V. OLIVER 5 agreement with Brown for a misdemeanor conviction for his violation of lifetime supervision. For this conviction, Brown was sentenced to time served on October 24, 2024. II. “[A]n appeal should [ ] be dismissed as moot when, by virtue of an intervening event, a court of appeals cannot grant ‘any effectual relief what[so]ever’ in favor of the appellant.” Calderon v. Moore, 518 U.S. 149, 150 (1996) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). “The party asserting mootness bears the burden of establishing that there is no effective relief that the court can provide.” Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006). Brown argues that the State’s appeal should be dismissed as moot because this Court can provide no effective relief given that the State negotiated and entered a new plea agreement in which Brown pleaded guilty to a misdemeanor lifetime supervision conviction and was sentenced to time served. Brown asserts that, even if we reverse the district court’s habeas order vacating his felony lifetime supervision conviction, the State cannot undo the misdemeanor plea agreement or resulting judgment entered after that order. We agree that the State cannot undo these intervening events. The State argues that it could vacate Brown’s current misdemeanor judgment and “unwind[ ] the [misdemeanor] guilty plea” prior to reinstating Brown’s felony judgment and resuming Brown’s custody under that judgment. The State does not cite a single case to support its supposed power to unwind Brown’s misdemeanor plea agreement, 6 BROWN V. OLIVER conviction, and sentence. 1 Indeed, not only is there no clear basis under Nevada law for the State’s proposed “unwinding,” the State cannot unilaterally unwind Brown’s misdemeanor plea agreement under the federal constitution based on the circumstances presented here. We have long held that a criminal defendant’s “due process rights conferred by the federal constitution allow [him] to enforce the terms of the plea agreement.” Brown v. Poole, 337 F.3d 1155, 1159 (9th Cir. 2003); see also, e.g., Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (“Under Santobello v. New York, 404 U.S. 257, 261–62 (1971), a criminal defendant has a due process right to enforce the terms of his plea agreement.”). Given that, here, the State “has already received the benefit of the bargain” fro

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