Heidelbach v. Stewart

44 F. App'x 251

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 2002
• Docket: No. 01-16750; D.C. No. CV-00-01170-MHM
• Status: Published

Opinion

MEMORANDUM

**

Rick Martin Heidelbach appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition challenging his Arizona conviction and sentence for aggravated assault. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the district court’s dismissal of a habeas corpus petition on procedural grounds, see La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir.2001), and we affirm.

This court granted a certificate of ap-pealability (“COA”) on the sole issue of whether certain of Heidelbach’s claims which were never presented to the Arizona state court are procedurally defaulted.¹ Heidelbach fails to demonstrate cause for his default and actual prejudice, or that failure to consider the claims will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Although Heidelbach also claims to be actually innocent of a felony, his petition does not meet the requirements of Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

Accordingly, we conclude that the district court properly ruled that Heidel-bach’s claims are procedurally defaulted. Id. We decline to consider other issues raised by Heidelbach that are outside the scope of the COA. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999).

AFFIRMED.

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.

1 . We note that Smith v. Stewart, 241 F.3d 1191 (9th Cir.2001), the opinion specifically mentioned in the COA, was vacated by Stewart v. Smith, -U.S. -, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002), and the Supreme Court opinion makes clear that Smith is distinguishable from this case.