Enno

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT NOV 13 2009

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BARRETTE LUKE ENNO, No. 07-35192

Petitioner - Appellant, D.C. No. CV-04-00596-BLW

v.

MEMORANDUM *

RANDY BLADES; et al.,

Respondents - Appellees.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding

Argued and Submitted July 6, 2009 Portland, Oregon

Before: PREGERSON, RYMER, and TASHIMA, Circuit Judges.

Barrette Luke Enno appeals dismissal of his 28 U.S.C. § 2254 petition. We

certified three issues, and conclude that a Certificate of Appealability (COA) was

improvidently granted as to one and that the others fail. Accordingly, we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. I

Enno withdrew Claim Two, which concerned “death qualifying” guilt-phase

jurors, in district court, and sought no COA as to it. In these circumstances we

believe our COA should not have issued and we vacate it. See Phelps v.…

MEMORANDUM *

Barrette Luke Enno appeals dismissal of his 28 U.S.C. § 2254 petition. We certified three issues, and conclude that a Certificate of Appealability (COA) was improvidently granted as to one and that the others fail. Accordingly, we affirm.

I

Enno withdrew Claim Two, which concerned “death qualifying” guilt-phase jurors, in district court, and sought no COA as to it. In these circumstances we believe our COA should not have issued and we vacate it. See Phelps v. Alameda, 366 F.3d 722, 728 (9th Cir.2004). In any event, Enno would not be entitled to relief even were the issue preserved. The Idaho Supreme Court’s decision was neither contrary to, nor an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented. See Buchanan v. Kentucky, 483 U.S. 402, 414-20 , 107 S.Ct. 2906 , 97 L.Ed.2d 336 (1987); Lockhart v. McCree, 476 U.S. 162, 165, 173-78, 183-84 , 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986); Wainwright v. Witt, 469 U.S. 412, 419-25 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985).

II

Enno lumps together the two parts of his ineffective assistance of counsel claim — one having to do with…

concurring in the judgment:

I concur in the judgment affirming the dismissal of Enno’s habeas petition by the district court, and I concur in most of the reasoning of the majority. I write separately briefly to express my differing analysis on only two points.

First, in Part I, I would not vacate our COA as improvidently issued, but would reach the merits, as to which I agree with the majority’s alternative analysis in Part I. Although it is true that Enno attempted to withdraw his “death qualified jury” claims, the district court held that “because Petitioner is unrepresented, the Court shall review the propriety of dismissal of these claims.” It then reviewed those claims and denied them on the merits. Because the district court reached the merits, we should do the same without questioning the propriety of issuing a COA on this issue. Moreover, it seems inconsistent to hold as to this claim that Enno waived it, i.e., that the district court was required to accept the withdrawal of the claim even though the district court expressly declined to accept that waiver, and then to hold in Part II that the state trial court was not required to accept the parties’ stipulation. If a…