Babb v. Bullock , 383 F. App'x 625 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CODY S. BABB, No. 05-35781
Petitioner - Appellant, D.C. No. CV-04-00093-RFC
v.
MEMORANDUM *
STEVE BULLOCK, Attorney General of
the State of Montana,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Montana state prisoner Cody S. Babb appeals from the district court’s
judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
under 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Babb contends that the district court erred by determining that his ineffective
assistance of counsel claims were procedurally defaulted without first requiring the
State to assert procedural default as an affirmative defense or offering Babb the
opportunity to argue that the state procedural bar was insufficient to bar federal
review. The record reflects that the district court correctly raised procedural
default sua sponte, and followed the proper procedure for summary dismissal. See
Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998).
The district court also did not err in concluding that Babb’s claims are
procedurally defaulted. Here, the district court gave Babb an opportunity to
demonstrate “a fundamental miscarriage of justice” or cause and prejudice
sufficient to excuse his procedural default, and Babb failed to do so. See Coleman
v. Thompson, 501 U.S. 722, 735 n.1 (1991); see also Carter v. Giurbino, 385 F.3d
1194, 1198 (9th Cir. 2004) (noting that the petitioner had “failed to come forward
with specific factual allegations that demonstrate the inadequacy of the state
procedure, including citation to authority demonstrating inconsistent application of
the rule”) (internal citations and quotations omitted). Babb failed to address the
adequacy of Mont. Code Ann. § 46-21-105(1)(b) - the state procedural rule cited
by the Montana Supreme Court in dismissing Babb’s second state petition. Rather,
at its core, Babb’s adequacy argument is an attack on the manner in which the
2 05-35781
Montana Supreme Court applied a different state procedural rule when it
considered and rejected Babb’s first state petition. To the extent Babb challenges
the Montana Supreme Court’s application of state law, his claim is not cognizable
in federal habeas proceedings. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990)
(“[F]ederal habeas corpus relief does not lie for errors of state law.”); see also 28
U.S.C. § 2254(a).
Babb’s contention that the district court erred by denying his request for an
evidentiary hearing lacks merit. See Anderson v. United States, 898 F.2d 751, 753
(9th Cir. 1990).
We deny Babb’s motion for judicial notice as unnecessary.
AFFIRMED.
3 05-35781