Mike Du Trieu v. Robert Fox

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 25, 2019
• Docket: 17-55265
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MIKE DU TRIEU, No. 17-55265

Petitioner-Appellant, D.C. No. 2:12-cv-03365-VBF-AJW v.

ROBERT W. FOX, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Valerie Baker Fairbank, District Judge, Presiding

Argued and Submitted March 6, 2019 Pasadena, California

Before: FERNANDEZ and M. SMITH, Circuit Judges, and CHRISTENSEN,** Chief District Judge.

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.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dana L. Christensen, Chief United States District Judge for the District of Montana, sitting by designation. “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 (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

(Cal. 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.

2 17-55265 AFFIRMED.

3 17-55265