A Ninth Circuit panel dismissed Nevada's appeal from an order vacating Lamar Brown's felony conviction, saying the state could not unwind a later misdemeanor plea deal it had already secured.
What happened
The Ninth Circuit on Thursday dismissed Nevada's appeal from a federal habeas order vacating Lamar Brown's felony conviction, holding that the state made its own appeal moot by negotiating a new misdemeanor plea and sentence after the district court ruling.
The published panel said Brown's intervening misdemeanor conviction for the same lifetime-supervision violation left the appellate court unable to give Nevada any practical relief. Because the state voluntarily entered a new plea agreement that Brown can enforce, the panel wrote that it "cannot afford the State any relief" by reversing the order that had wiped out the earlier felony conviction.
Brown pleaded guilty in 2015 to felony violation of lifetime supervision and received a 5-to-20-year prison sentence. After his state appeals and habeas petitions were denied, he filed a federal habeas petition arguing in relevant part that his lawyer was ineffective for advising him to plead guilty to a felony violation and for not advising him to withdraw the plea before sentencing.
The district court granted Brown a conditional writ in June 2024 and ordered the felony conviction vacated. Nevada's attorney general noticed an appeal the next month, but the Ninth Circuit said the local prosecutor later appeared in state court, did not tell the judge about the appeal, and negotiated a misdemeanor plea that led to Brown being sentenced to time served on Oct. 24, 2024.
Judge Gabriel P. Sanchez, writing for Judges N. Randy Smith and Jacqueline H. Nguyen, rejected Nevada's contention that it could vacate the misdemeanor judgment, unwind the plea and reinstate the felony judgment if it won the appeal. The panel said the state cited no case supporting that supposed authority and pointed to Ninth Circuit precedent recognizing a criminal defendant's due process right to enforce a plea agreement.
The court also distinguished prior cases in which state habeas appeals were not moot because reversal could spare the state from a new trial. Here, the panel said there was no upcoming trial and no remaining burden that a reversal would lift, because the case had already reached a new conviction and sentence. The appeal was dismissed as moot.