Opinion
No. 08-17044.
Argued and Submitted April 12, 2011.
Filed April 21, 2011.
Timothy Edward Warriner, Attorney at Law, Sacramento, CA, for Petitioner-Appellant.
Brian R. Means, Deputy Attorney General, United States Department of Justice, Brian G. Smiley, Supervising Deputy Attorney General, Office of the California Attorney General, Sacramento, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of California, Arthur L. Alarcon, Senior Circuit Judge, Presiding. D.C. No. 2:06-cv-00824-ALA-GGH.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Petitioner Juan Carlos Ayala-Sanchez (Sanchez) challenges the district court's dismissal of his federal habeas petition for failure to exhaust state remedies. Citing In re Wessley W., 125 Cal.App.3d 240, 181 Cal.Rptr. 401 (1981), as modified, In re Swain, 34 Cal.2d 300, 209 P.2d 793 (1949), and People v. Duvall, 9 Cal.4th 464, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995), the California Supreme Court denied Sanchez's state habeas petition as procedurally deficient. After independently reviewing Sanchez's state petition, we conclude that the petition was procedurally deficient under California law, as Sanchez failed to allege his claims with the requisite particularity, failed to attach reasonably available documents, and failed to adequately allege that he was in custody. See In re Swain, 34 Cal.2d at 304, 209 P.2d 793; Duvall, 9 Cal.4th at 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252; In re Wessley W., 125 Cal. App.3d 240, 181 Cal.Rptr. at 403-04.
Because Sanchez's state habeas petition was procedurally deficient, the district court properly dismissed Sanchez's federal habeas petition for failure to exhaust state remedies. See Harris v. Superior Ct, 500 F.2d 1124, 1128 (9th Cir. 1974) (en banc) ("If the denial of the habeas corpus petition includes a citation of an authority which indicates that the petition was procedurally deficient . . . then the available state remedies have not been exhausted . . .") (citations omitted); see also Gaston v. Palmer, 417 F.3d 1030, 1039 (9th Cir. 2005), modified on other grounds, 447 F.3d 1165 (9th Cir. 2006) ("In light of its citations to Swain and Duvall, we read the California Supreme Court's denial of [the petitioner's] . . . habeas application as, in effect, the grant of a demurrer, i.e., a holding that [the petitioner] had not pled facts with sufficient particularity.").
Sanchez concedes that his claim for ineffective assistance of counsel was properly dismissed.
Dismissal of Sanchez's petition is not precluded by Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Coleman applies to procedural default rather than procedural deficiency. See id. at 731-32, 111 S.Ct. 2546.