                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 10 2017

                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CHRISTOPHER ADAM DOLLAR,                         No.   15-16921

              Petitioner-Appellant,              D.C. No.
                                                 2:13-cv-01952-JCM-GWF
 v.

HAROLD WICKHAM; ATTORNEY                         MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,

              Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                    Argued and Submitted September 15, 2017
                            San Francisco, California

Before: SCHROEDER and FRIEDLAND, Circuit Judges, and WHALEY,**
District Judge.

      Christopher Dollar, a Nevada state prisoner, appeals the dismissal of his

habeas petition challenging the sentence he received after pleading guilty to


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **     The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
charges of robbery and conspiracy to commit robbery. Dollar claims ineffective

assistance of counsel at sentencing because his counsel failed to obtain available

evidence about his mental disabilities that might have resulted in a lower sentence.

The district court dismissed his petition as unexhausted.

      The dismissal was in error. “An unexhausted claim will be procedurally

defaulted, if state procedural rules would now bar the petitioner from bringing the

claim in state court.” Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) (en

banc). When the federal district court dismissed Dollar’s petition, it was clear that

Nevada’s procedural rules would bar his new claim, and a state district court had

already recognized as much. In Nevada, a prisoner may overcome such hurdles

only if he or she can show cause and prejudice. See Nev. Rev. Stat. § 34.726(1);

id. § 34.810(3). Nevada does not treat limited mental capacity or incarceration as

cause, see, e.g., Phelps v. Dir., Nev. Dep’t of Prisons, 764 P.2d 1303, 1306 (Nev.

1988), superseded by statute on other grounds as stated in State v. Haberstroh, 69

P.3d 676, 681 (Nev. 2003), and has expressly declined to adopt a state-law analog

to Martinez v. Ryan, 566 U.S. 1 (2012), meaning that inadequate assistance of

counsel during initial-review collateral proceedings1 also does not constitute cause

under state law, see Brown v. McDaniel, 331 P.3d 867, 872 (Nev. 2014) (en banc)).

1
 The term “initial-review collateral proceedings” means “collateral proceedings
which provide the first occasion to raise a claim of ineffective assistance at trial.”
Martinez, 566 U.S. at 8.
                                            2
The Nevada Supreme Court reaffirmed these principles when it held, after Dollar’s

federal petition was dismissed, that his new claim was procedurally barred under

state law.2

       The federal district court should have treated the petition as procedurally

defaulted and then decided whether, under federal law, Dollar could demonstrate

cause and prejudice to overcome the default. We therefore reverse and remand

with instructions to decide that question in light of Martinez.

       REVERSED and REMANDED.




2
  As requested by both parties, the court takes judicial notice of that decision. See
Fed. R. Evid. 201(b).
                                           3
