Summary
holding that the failure to obtain a certificate of probable cause under California Penal Code § 1237.5 is an independent and adequate state procedural bar
Summary of this case from Navarro v. MossOpinion
No. 06-55956.
Argued and Submitted January 11, 2008.
Filed January 23, 2008.
Gretchen Fusilier, Esq., Carlsbad, CA, for Petitioner-Appellant.
Kevin R. Vienna, Esq., AGCA-Office of the California Attorney General, San Diego, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Central District of California, Cormac J. Carney, District Judge, Presiding. D.C. No. CV-4M-09563-CJC.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Petitioner George Berry Strong appeals from the district court's dismissal of a petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm. Because the facts are familiar to the parties, we do not recite them here.
Strong's certified claim based on the voluntariness of his plea is procedurally barred. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (The federal court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."). On direct appeal, the California Court of Appeal denied his claim because he failed to comply with California Penal Code § 1237.5, an independent and adequate state procedural ground. See People v. Mendez, 19 Cal.4th 1084, 81 Cal.Rptr.2d 301, 969 P.2d 146 (1999). Strong has not shown cause and prejudice to overcome this bar. Poland v. Stewart, 169 F.3d 573, 587 (9th Cir. 1999)
We also deny the motion to expand the Certificate of Appealability (COA) to include a claim for ineffective assistance of counsel. See 9th Cir. R. 22-1 (e) (construing the inclusion of an uncertified issue in the opening brief as a motion to expand the COA). Strong has not made a "substantial showing of the denial of a constitutional right," as required for a COA. 28 U.S.C. § 2253(c)(2); Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000).