NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 15 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FABIAN FUENTES ROSAS, No. 17-16839

Petitioner-Appellant, D.C. No. 3:05-cv-00490-RCJ-VPC v.

TIMOTHY FILSON; ATTORNEY MEMORANDUM*

GENERAL FOR THE STATE OF

NEVADA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Submitted November 12, 2019** San Francisco, California

Before: BEA and LEE, Circuit Judges, and PIERSOL,*** District Judge.

Petitioner Fabian Fuentes Rosas appeals the district court’s denial of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota, sitting by designation. Grounds One and Two of his petition for writ of habeas corpus. Reviewing de

novo, Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc), we affirm.

Rosas exhausted Grounds One and Two of the operative petition—each of

which rely on Nevada’s alleged failure to abide by the terms of a written polygraph

agreement (“the Agreement”)—when he presented the claims to the Nevada

Supreme Court in his second petition for writ of habeas corpus. Under the doctrine

of procedural default, however, federal courts will not review the merits of claims

that a state court declined to hear due to the petitioner’s failure to abide by

adequate and independent state procedural rules. Williams v. Filson, 908 F.3d 546,

577 (9th Cir. 2018); Martinez v. Ryan, 566 U.S. 1, 9 (2012). The Nevada Supreme

Court here held, among other things, that (1) Rosas’s second state habeas petition

relying on the Agreement was procedurally barred by Nevada Revised Statute

(“NRS”) § 34.726(1) because it was filed more than one year after resolution of

Rosas’s direct appeal; and (2) Rosas did not demonstrate good cause to avoid NRS

§ 34.726(1)’s timeliness requirement because Rosas waited years after finding the

Agreement to file his second state habeas petition. As we have held before, NRS

§ 34.726 is an adequate and independent state law ground for procedural default in

non-capital cases, such as Rosas’s. See Moran v. McDaniel, 80 F.3d 1261, 1268–

70 (9th Cir. 1996). As a result, Rosas had the burden to assert specific factual

allegations that demonstrate the inadequacy of NRS § 34.726 with case citations

2 demonstrating its inconsistent application. Williams, 908 F.3d at 577. Rosas failed

to carry that burden, and thus the doctrine of procedural default applies.

After correctly holding that the doctrine of procedural default applies, the

district court did not err in holding that Rosas failed to show cause to overcome the

procedural default of Grounds One and Two of the operative petition. The district

attorney’s failure to recall there being a written agreement did not render Rosas

incapable of relying on the Agreement because he too signed the Agreement and

could have disputed the district attorney’s memory. See McCleskey v. Zant, 499

U.S. 467, 497 (1991) (explaining that cause “requires a showing of some external

impediment preventing counsel from constructing or raising the claim”) (quoting

Murray v. Carrier, 477 U.S. 478, 492 (1986)). More important, the Agreement

was in the possession of Rosas’s attorney of record, in the county public defender’s

office, and Rosas does not explain why his counsel’s failure to locate the

Agreement was the fault of the State. Nor does Rosas explain why a reasonable

investigation would not have located the Agreement. See id. at 498.

AFFIRMED.

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