Danny Lewis v. Robert G. Borg

Danny Lee Lewis appeals the district court’s denial of his petition for writ of habeas corpus. The district court found that Lewis was in default of state procedure because he failed to raise his claim of prosecutorial misconduct on direct appeal to the California Court of Appeal. The district court then denied Lewis’ petition because he failed to demonstrate cause and prejudice under the Wainwright v. Sykes standard. See Murray v. Carrier, 477 U.S. 478, 485 , 106 S.Ct. 2639, 2644 , 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506 , 53 L.Ed.2d 594 (1977). Lewis contends on appeal that the district court erred in finding procedural default because the California Supreme Court adjudicated Lewis’ prosecuto-rial misconduct claim for habeas relief on the merits. We agree and reverse.

DISCUSSION

We have held that a federal habeas claim is not barred by the procedural default rule when the state court declines to apply the procedural bar and adjudicates the habeas claim on the merits. Tacho v. Martinez, 862 F.2d 1376, 1378 (9th Cir.1988). In this case, the California Supreme Court denied Lewis’ habeas petition without citation or comment. We have held…