Van v. Stewart

48 F. App'x 656

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 10, 2002
• Docket: No. 01-16927; D.C. No. CV-98-01373-RGS
• Status: Published

Opinion

MEMORANDUM

**

Donal Robert Van, an Arizona state prisoner, appeals pro se the denial of his 28 U.S.C. § 2254 petition challenging his sentence imposed after a conviction for four counts of burglary, four counts of theft, and two counts of trafficking in stolen property. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the denial of a section 2254 petition, Dows v. Wood, 211 F.3d 480, 484 (9th Cir.2000), and we affirm.

The district court granted a certificate of appealability (“COA”) on the question whether the trial court properly instructed the jury to consider evidence as it related to each count separately.¹

The Arizona Court of Appeals held that Van’s contention was proeedurally barred, pursuant to Arizona Rule of Criminal Procedure 32.2(a)(3). Because Arizona Rule of Criminal Procedure 32.2(a)(3) is an independent and adequate procedural bar, Stewart v. Smith, — U.S.-, 122 S.Ct. 2578, 2581-82, 153 L.Ed.2d 762 (2002) (per curiam); Poland v. Stewart, 169 F.3d 573, 585 (9th Cir.1999) (as amended), and Van has failed to make the required showing of actual cause and prejudice, or miscarriage of justice, to excuse his procedural default, we are precluded from reviewing his contention. See Vansickel v. White, 166 F.3d 953, 957-58 (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 provided by Ninth Circuit Rule 36-3.

1 . We decline to address any issues not raised in the COA, having denied Van’s request to broaden the COA. See Hiivala v. Wood, 195 F.3d, 1098, 1103 (9th Cir.1999) (per curiam).