Bargas

Opinion by Judge SNEED; Dissent by Judge TASHIMA.

Willie Bargas (“petitioner”) appeals from the decision of the United States District Court for the District of Nevada, the Honorable David Warner Hagen, Presiding, which denied his petition for a writ of habeas corpus. Petitioner asserts two claims in this petition: (1) that his trial counsel was ineffective; and (2) that his guilty plea was not knowing and voluntary. The district court held that petitioner procedurally defaulted his ineffective assistance of counsel claim and denied on the merits his claim that his guilty plea was not knowing and voluntary.

We have jurisdiction pursuant to 28 U.S.C. § 2253 and affirm the decision of the district court in its entirety.

I.

Petitioner pleaded guilty to sexual assault in March of 1983. At his arraignment, the trial court judge read the sexual assault statute to petitioner, the attorney for the state read the elements of the offense in open court and petitioner acknowledged that his counsel advised him of the nature of the charge against him. The attorney for the state, however, neglected to mention the mens rea element of the statute. During the plea hearing, the trial court read…

dissenting in part:

I concur in all of the majority opinion, except Part II and the judgment. Because I do not agree, however, that petitioner’s ineffective assistance of counsel claim is procedurally defaulted, I respectfully dissent from the majority’s treatment of that claim. Specifically, I disagree with the majority’s conclusion that the Nevada procedural rule relied on by the Nevada state court constitutes an adequate ground for its decision.

Under the procedural default doctrine, “[w]hen a state prisoner has defaulted on a claim by violating a state procedural rule which would constitute adequate and independent grounds to bar direct review in the U.S. Supreme Court, he may not raise the claim in federal habeas,” Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir.1994), “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). The procedural default doctrine is thus a specific application of the independent and adequate…