FILED
NOT FOR PUBLICATION FEB 03 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KEVIN BARTHOLOMEW, No. 10-15142
Petitioner - Appellant, D.C. No. 2:09-cv-01397-GEB-GGH
v.
MEMORANDUM *
J. W. HAVILAND,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted January 17, 2012
San Francisco, California
Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.
Kevin Bartholomew appeals from the district court’s dismissal of his
petition for a writ of habeas corpus. The district court dismissed the petition as
procedurally defaulted because the state court’s dismissal rested on an adequate
and independent California state law ground. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Generally, a federal court will not consider on habeas review a claim that the
state court resolved on adequate and independent state procedural grounds. See
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255,
262 (1989). The state procedural rule must be well-established and consistently
applied. See Ford v. Georgia, 498 U.S. 411, 423-24 (1991). Here, because the
California Supreme Court summarily affirmed the California Court of Appeal’s
ruling, this court looks to the California Court of Appeal’s reasoning to determine
whether the claims are procedurally barred. See Ylst v. Nunnemaker, 501 U.S. 797,
803 (1991).
The California Court of Appeal did not reach the merits of Bartholomew’s
due process claim because he had failed to exhaust his administrative remedies
through the prison appeals process, and the court cited to California state cases as
the basis for its decision. This exhaustion of administrative remedies requirement
is well-established and consistently applied in California law, thus meeting the
requirements for an adequate state ground. See, e.g., Abelleira v. Dist. Court of
Appeal, 17 Cal. 2d 280, 292-93 (1941). Because the rule does not involve any
federal analysis, it is an independent state ground. See Carter v. Giurbino, 385
F.3d 1194, 1197-98 (9th Cir. 2004). Therefore, Bartholomew’s claim is
procedurally defaulted. Any arguments that Bartholomew did, in fact, exhaust his
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administrative remedies, or that California did not properly apply its own
procedures, are not appropriate for this court’s consideration. See Poland v.
Stewart, 169 F.3d 573, 584 (9th Cir. 1999).
A federal court may consider a procedurally-defaulted claim on habeas
review if the petitioner demonstrates either “cause for the default and actual
prejudice as a result of the alleged violation of federal law, or . . . that failure to
consider the claims will result in a fundamental miscarriage of justice.” Coleman,
501 U.S. at 750; see also Harris, 489 U.S. at 262. Bartholomew does not argue
and cannot demonstrate that failure to consider his claims will result in a
fundamental miscarriage of justice.
Nor can Bartholomew establish actual prejudice resulting from any alleged
violation of federal law. To succeed, Bartholomew must demonstrate errors that
“‘worked to his actual and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.’” Correll v. Stewart, 137 F.3d 1404, 1415 (9th
Cir. 1998) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Nothing
Bartholomew has alleged, if proven true, would rise to the level of actual prejudice.
Even if Bartholomew could prove he did not receive the “written statement
of the factfinders as to the evidence relied upon and the reasons for the disciplinary
action taken,” required by Wolff v. McDonnell, 418 U.S. 539, 563 (1974), and
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therefore did not bring a timely appeal of the credit forfeiture decision, his
arguments do not suggest such an appeal would have been successful. Similarly,
even if Bartholomew could prove he did not have the ability “to call witnesses and
present documentary evidence in his defense,” as is also required by Wolff, id. at
566, he has not indicated that any potential witnesses would have led to a different
outcome, either in the disciplinary hearing or any subsequent proceedings. Finally,
according to the Supreme Court, “[w]e think that the Constitution should not be
read to impose the [confrontation] procedure at the present time and that adequate
bases for decision in prison disciplinary cases can be arrived at without
cross-examination.” Id. at 558. In any event, Bartholomew does not demonstrate
how his failure to cross-examine the reporting employee prejudiced him.
Because the cause and prejudice exception allowing federal court review of
a procedurally-defaulted habeas claim requires the presence of both elements, and
Bartholomew did not allege actual prejudice, we do not reach the issue of cause.
AFFIRMED.
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