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TRIEU v. FOX (2019)

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United States Court of Appeals, Ninth Circuit.

Mike Du TRIEU, Petitioner-Appellant, v. Robert W. FOX, Warden, Respondent-Appellee.

No. 17-55265

Decided: March 25, 2019

Before: FERNANDEZ and M. SMITH, Circuit Judges, and CHRISTENSEN,* Chief District Judge. Tracy Dressner, Esquire, Attorney, Attorney At Law, La Crescenta, CA, for Petitioner - Appellant Xiomara Costello, Michael Katz, Deputy Attorney General, AGCA-Office of the California Attorney General, Los Angeles, CA, for Respondent - Appellee


California state prisoner Mike Du Trieu appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

“The procedural default doctrine ‘bar[s] federal habeas when a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement.’ ” Calderon v. United States District Court, 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729–30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ). The California Supreme Court denied Trieu’s unexhausted ineffective assistance of counsel claim by applying its procedural bar against successive or piecemeal litigation by citing In re Clark, 5 Cal.4th 750, 767–69, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993). Petitioner contends that the state incorrectly applied the Clark procedural rule in this case; however, we may not review the legitimacy of that decision. See Wood v. Hall, 130 F.3d 373, 379 (9th Cir. 1997) (“ ‘[a] federal court may not re-examine a state court’s interpretation and application of state law.’ ”) (quoting Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir. 1994) ). Thus, because the State properly raised this affirmative defense and Trieu did not put its adequacy at issue, the bar applies to this case. See Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003) (explaining that the petitioner bears the burden to put the procedural rule at issue “by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule.”).

Because we find Trieu’s claims procedurally defaulted, we need not reach the merits of his petition.


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