Opinion
Argued and Submitted December 6, 2002.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Oregon, Helen J. Frye, District Judge, Presiding.
Before B. FLETCHER, KLEINFELD and McKEOWN, Circuit Judges.
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.
As the district court correctly held, Casavan's claim that he was denied due process when his sentence was amended is procedurally barred. Although both the Oregon Court of Appeals and Supreme Court denied his state petition without opinion, in its relevant briefing the State did not argue the merits, but only asserted state procedural bars to Casavan's claim. Because the State briefed procedural issues but not the merits, we may infer the state court decided the case for the State on the state procedural issues in its summary affirmance. Because Casavan's claim is procedurally defaulted, we need not reach the merits.
See Coleman v. Thompson, 501 U.S. 722, 740, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (holding that state court summary dismissal of appeal "fairly appears" to have relied on state procedural ground when government's sole ground for motion to dismiss was that appeal was untimely); Siripongs v. Calderon, 35 F.3d 1308, 1317 (9th Cir.1994) (describing state court opinion in Coleman: "the state had rested its argument solely upon a single procedural bar and the state court had obviously accepted its argument.").
AFFIRMED.