Rekow v. Hall

311 F. App'x 999

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 19, 2009
• Docket: No. 07-35689
• Status: Published

Opinion

MEMORANDUM

**

Petitioner Michael Ray Rekow appeals from the order of the district court denying his habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2254, and we affirm.

Rekow conceded procedural default in the district court and on appeal, yet failed to argue in favor of an exception to the procedural default doctrine, e.g., cause and prejudice, in the district court. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). We decline to consider Rekow’s cause and prejudice arguments raised for the first time on appeal. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.2001). Even assuming we were to find that Rekow generally raised cause and prejudice in the district court, the record illustrates that he never addressed the sole argument he raises on appeal—that the State of Oregon erected barriers that impeded his counsel’s efforts to comply with state procedural rules.

The district court did not err in declining to hold an evidentiary hearing on Re-kow’s underlying habeas claims.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.