Mike Du Trieu v. ROBERT W. FOX, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIKE DU TRIEU,
Petitioner-Appellant,
v.
ROBERT W. FOX, Warden,
Respondent-Appellee.
No. 17-55265
D.C. No.
2:12-cv-03365-VBF-AJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Argued and Submitted March 6, 2019
Pasadena, California
Before: FERNANDEZ and M. SMITH, Circuit Judges, and CHRISTENSEN,**
Chief District Judge.
California state prisoner Mike Du Trieu appeals the district court’s denial of
his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253, and we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.
FILED
MAR 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-55265
“The procedural default doctrine ‘bar[s] federal habeas when a state court
declined to address a prisoner’s federal claims because the prisoner had failed to
meet a state procedural requirement.’” Calderon v. United States District Court,
96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722,
729–30 (1991)). The California Supreme Court denied Trieu’s unexhausted
ineffective assistance of counsel claim by applying its procedural bar against
successive or piecemeal litigation by citing In re Clark, 5 Cal. 4th 750, 767–69
(Cal. 1993). Petitioner contends that the state incorrectly applied the Clark
procedural rule in this case; however, we may not review the legitimacy of that
decision. See Wood v. Hall, 130 F.3d 373, 379 (9th Cir. 1997) (“‘[a] federal court
may not re-examine a state court’s interpretation and application of state law.’”)
(quoting Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir. 1994)). Thus, because
the State properly raised this affirmative defense and Trieu did not put its adequacy
at issue, the bar applies to this case. See Bennett v. Mueller, 322 F.3d 573, 586
(9th Cir. 2003) (explaining that the petitioner bears the burden to put the
procedural rule at issue “by asserting specific factual allegations that demonstrate
the inadequacy of the state procedure, including citation to authority demonstrating
inconsistent application of the rule.”).
Because we find Trieu’s claims procedurally defaulted, we need not reach
the merits of his petition.

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3 17-55265
AFFIRMED.

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