Arnett v. Pugh

MEMORANDUM ^**

Alaska state prisoner Marcus Gene Ar-nett appeals pro se the district court’s order dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291, 2253. We review de novo a district court’s decision to dismiss a habeas corpus petition for procedural default on state law grounds. Cockett v. Ray, 333 F.3d 938, 941 (9th Cir.2003). We affirm in part, vacate in part, and remand with instructions.

This court granted a certificate of appealability on the issue of: “Whether the district court erred by dismissing appellant’s petition as procedurally barred, including the question whether the bar at issue has been consistently applied.” See 28 U.S.C. § 2253(c); Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam).

The district court properly denied several of Arnett’s claims because he failed to exhaust the claims in state court. See Powell v. Lambert, 357 F.3d 871, 874 (9th Cir.2004). Arnett’s remaining claims were denied by the district court because they were procedurally barred by Alaska Stat. § 12.72.020(a)(6). However, the district court did not consider whether Alaska Stat. § 12.72.020(a)(6) has been inconsistently applied, as Arnett now contends. On this record, it is unclear whether the Government has satisfied its burden of proving that Alaska Stat. § 12.72.020(a)(6) or its predecessor Alaska Criminal Rule 35.1(h) have been consistently applied. See Bennett v. Mueller, 322 F.3d 573, 583-86 (9th Cir.2003).

The district court’s order is therefore AFFIRMED as to the unexhausted claims, VACATED as to the remaining procedurally barred claims, and REMANDED for consideration of whether the Alaska procedural bar at issue has been consistently applied.

** 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.