Zammit v. Schriro

Ninth Circuit

Zammit v. Schriro

184 F. App'x 652

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 15, 2006

DocketNo. 05-15021

StatusPublished

This text of 184 F. App'x 652 (Zammit v. Schriro) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Zammit v. Schriro, 184 F. App'x 652 (9th Cir. 2006).

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Opinion

MEMORANDUM

**

Rio Zammit appeals the district court’s denial in part and dismissal in part of his petition for a writ of habeas corpus. We certified two issues for appeal, and affirm as to each.

We review the district court’s dismissal of a petition for writ of habeas corpus due to procedural default de novo. Morrison v. Mahoney, 399 F.3d 1042, 1045 (9th Cir. 2005). We see no error, as the Arizona Court of Appeals applied a procedural bar to consideration of Zammit’s claim that his sentence was excessive and in violation of the Eighth Amendment because he preserved no such issue in the Arizona trial court. See State v. Calabrese, 157 Ariz. 189, 755 P.2d 1177 (1988). As the district court found, Zammit made no showing of cause and prejudice. Nor is his case an extraordinary one where the fundamental miscarriage of justice exception applies. See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

Arizona’s waiver rule is well established and there is no indication that it is not consistently applied. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir.2003) (establishing burden-shifting process); see, e.g., State v. Navarro, 201 Ariz. 292, 298 n. 6, 34 P.3d 971 (2001) (noting that Eighth [653]*653Amendment claim is waived if not raised before trial court); State v. Bolton, 182 Ariz. 290, 297, 896 P.2d 830 (1995) (holding that constitutional issues are waived if not raised in the trial court). It is thus an independent and adequate state ground, Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir.1996), which precludes habeas review by a federal court, Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Zammit’s Blakely¹ argument is uncertified and we decline to consider it as it raises no debatable issue.

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 9th Cir. R. 36-3.

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MEMORANDUM

**

Rio Zammit appeals the district court’s denial in part and dismissal in part of his petition for a writ of habeas corpus. We certified two issues for appeal, and affirm as to each.

We review the district court’s dismissal of a petition for writ of habeas corpus due to procedural default de novo. Morrison v. Mahoney, 399 F.3d 1042, 1045 (9th Cir. 2005). We see no error, as the Arizona Court of Appeals applied a procedural bar to consideration of Zammit’s claim that his sentence was excessive and in violation of the Eighth Amendment because he preserved no such issue in the Arizona trial court. See State v. Calabrese, 157 Ariz. 189, 755 P.2d 1177 (1988). As the district court found, Zammit made no showing of cause and prejudice. Nor is his case an extraordinary one where the fundamental miscarriage of justice exception applies. See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

Arizona’s waiver rule is well established and there is no indication that it is not consistently applied. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir.2003) (establishing burden-shifting process); see, e.g., State v. Navarro, 201 Ariz. 292, 298 n. 6, 34 P.3d 971 (2001) (noting that Eighth [653]*653Amendment claim is waived if not raised before trial court); State v. Bolton, 182 Ariz. 290, 297, 896 P.2d 830 (1995) (holding that constitutional issues are waived if not raised in the trial court). It is thus an independent and adequate state ground, Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir.1996), which precludes habeas review by a federal court, Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Zammit’s Blakely¹ argument is uncertified and we decline to consider it as it raises no debatable issue.

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 9th Cir. R. 36-3.

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