Pickett v. Hatcher

80 F. App'x 604

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 7, 2003
• Docket: No. 03-15104; D.C. No. CV-01-00179-LRH/RJJ
• Status: Published

Opinion

MEMORANDUM

**

Petitioner Cary Pickett appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition on procedural default grounds. We have jurisdiction under 28 U.S.C. § 2253, and review the dismissal of his petition de novo. Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir.1996).

Pickett’s claims were procedurally defaulted based on his failure to file a timely post-conviction petition in state court. The Nevada statute of limitations constituted an independent and adequate state ground precluding habeas review. See Id. at 1269-70; Nev.Rev.Stat. 34.726. Because Pickett did not file his petition “within 1 year after entry of the judgment of conviction,” it was untimely. Nev.Rev.Stat. 34.726. Additionally, he has not shown that he had sufficient cause and prejudice to overcome the default. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Thus, we affirm the district court’s dismissal of his habeas petition.

AFFIRMED

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