FILED
NOT FOR PUBLICATION APR 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RONALD P. FOSTER, No. 09-16659
Petitioner - Appellant, D.C. No. 5:08-cv-04269-RMW
v.
MEMORANDUM *
M. EVANS, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Submitted April 5, 2011 **
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
California state prisoner Ronald P. Foster appeals pro se from the district
court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have
*
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).
jurisdiction under 28 U.S.C. § 2253,*** and we affirm.
Foster contends that the district court erred in dismissing his petition as
procedurally defaulted. Specifically, he argues that the state court’s determination
that his petition was successive does not constitute an adequate and independent
state bar. This contentions fails. Foster did not meet his burden of “asserting
specific factual allegations that demonstrate the inadequacy of the state procedure.”
See Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003).
Foster further contends that the California Court of Appeal’s decision was
the last reasoned state court decision and that it constitutes an adjudication on the
merits. However, the record reflects that the California Superior Court’s judgment
citing In re Clark, 5 Cal.4th 750, 767 (1993), was the last reasoned decision and
that the California Court of Appeal’s decision was not an adjudication on the
merits. See Ylst v. Nonnemaker, 501 U.S. 797, 804 (1991); see also Lambert v.
Blodgett, 393 F.3d 943, 966-67, 969 (9th Cir. 2004) (for purpose of § 2254, a
dismissal on procedural grounds is not an adjudication on the merits).
AFFIRMED.
***
We certify for appeal, on our own motion, the issue of whether the
district court erred in dismissing Foster’s petition as procedurally defaulted. See
9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.
1999) (per curiam).
2 09-16659