Evans v. Calderon

46 F. App'x 485

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 17, 2002
• Docket: No. 01-56793; D.C. No. CV-01-00244-NMM
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Jamel Johnathan Evans appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for possession of cocaine base for sale. The district court dismissed Evans’ petition with prejudice as being procedurally defaulted. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the district court’s decision to deny a habeas petition, Wade v. Terhune, 202 F.3d 1190, 1194 (9th Cir.2000), and we vacate and remand.

The California Supreme Court denied Evans’ state habeas corpus petition, citing In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993). As was the case in Bennett v. Mueller, 296 F.3d 752 (9th Cir.2002), the record in this appeal is not sufficient for us to determine whether the Clark rule is adequate to prevent federal review of Evans’ claims. We therefore vacate and remand so the district court may reevaluate the question of whether Evans has procedurally defaulted his claims. See Bennett, 296 F.3d at 761-63; see also Coleman v. Thompson, 501 U.S. 722, 736, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (“[Fjederal habeas courts must ascertain for themselves if the petitioner is in custody pursuant to a state court judgment that rests on independent and adequate state grounds.”); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 296, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964) (holding that federal review is not precluded if procedural rule invoked by state court does not apply to the facts of the case).

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.