Angel Alvarez v. Robert K. Wong

FILED

NOT FOR PUBLICATION APR 05 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

ANGEL JESUS ALVAREZ, No. 09-15547

Petitioner - Appellant, D.C. No. 5:06-cv-05027-JF

v.

MEMORANDUM *

ROBERT K. WONG,

Respondent - Appellee.

Appeal from the United States District Court for the Northern District of California Jeremy D. Fogel, District Judge, Presiding

Argued and Submitted March 14, 2011 San Francisco, California

Before: WALLACE, NOONAN, and CLIFTON, Circuit Judges.

Angel Jesus Alvarez appeals the district court's dismissal of his petition for

writ of habeas corpus as untimely. We affirm.

Absent showings of 'cause' and 'prejudice,' not established by Alvarez

here, federal habeas relief is unavailable when 'a state court [has] declined to

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. address a prisonerùs federal claims because the prisoner had failed to meet a state

procedural requirement,' and 'the state…

MEMORANDUM *

Angel Jesus Alvarez appeals the district court’s dismissal of his petition for writ of habeas corpus as untimely. We affirm.

Absent showings of “cause” and “prejudice,” not established by Alvarez here, federal habeas relief is unavailable when “a state court [has] declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement,” and “the state judgment rests on independent and adequate state procedural grounds.” Coleman v. Thompson, 501 U.S. 722, 729-730 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). The Supreme Court recently held that denial of habeas relief by the California Supreme Court on the ground that the application for relief was filed untimely was an independent and adequate state procedural ground requiring denial of a subsequent habeas petition in federal court, overturning this court’s precedent to the contrary. Walker v. Martin, — U.S.-, 131 S.Ct. 1120 , 179 L.Ed.2d 62 (2011). The California Supreme Court denied Alvarez’s petition with a citation to In re Clark, 5 Cal.4th 750 , 21 Cal.Rptr.2d 509 , 855 P.2d 729 (1993). The *653 citation to Clark signals the court’s conclusion that the petition was…

concurring:

I concur in the memorandum disposition except for the last paragraph which is unnecessary for our decision. Walker v. Martin decides the appeal. — U.S.-, 131 S.Ct. 1120 , 179 L.Ed.2d 62 (2011).

I write separately to express my disappointment that neither counsel cited Walker by a Federal Rule of Appellate Procedure Rule 280(j) letter and one attorney was unaware of its existence. We rely on counsel to provide pertinent authority so that we can make correct decisions. I had found Walker myself and am perplexed that Alvarez’s counsel missed it. I am also perplexed that counsel for the State of California failed to provide Walker to us. At oral argument, counsel stated she was aware of Walker but chose not to file a 280(j) letter. Nevertheless, she was prepared to and did argue that Walker was controlling precedent. By failing to provide Walker in a 280(j) letter, the State’s counsel deprived Alvarez’s counsel of the chance to respond, and thereby deprived us of possibly helpful oral argument.