Ronald Foster v. M. Evans

426 F. App'x 523

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 11, 2011
• Docket: 09-16659
• Status: Unpublished

Opinion

MEMORANDUM **

California state prisoner Ronald P. Foster appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction un der 28 U.S.C. § 2253, *** and we affirm.

Foster contends that the district court erred in dismissing his petition as proeedurally defaulted. Specifically, he argues that the state court’s determination that his petition was successive does not constitute an adequate and independent state bar. This contentions fails. Foster did not meet his burden of “asserting specific factual allegations that demonstrate the inadequacy of the state procedure.” See Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir.2003).

Foster further contends that the California Court of Appeal’s decision was the last reasoned state court decision and that it constitutes an adjudication on the merits. However, the record reflects that the California Superior Court’s judgment citing In re Clark, 5 Cal.4th 750, 767, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993), was the last reasoned decision and that the California Court of Appeal’s decision was not an adjudication on the merits. See Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); see also Lambert v. Blodgett, 393 F.3d 943, 966-67, 969 (9th Cir.2004) (for purpose of § 2254, a dismissal on procedural grounds is not an adjudication on the merits).

AFFIRMED.

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

*** We certify for appeal, on our own motion, the issue of whether the district court erred in dismissing Foster's petition as procedurally defaulted. See 9th Cir. R. 22-1 (e); see also Hiivalav. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).