Bernard

MEMORANDUM *

In this appeal, we hold that federal habeas petitioner Richard Bernard (“Bernard”) is procedurally barred from claiming alleged constitutional error for the first time on collateral review.

Because the parties are familiar with the facts of this case, we recount them here only as needed to explain our decision. It is undisputed that Bernard failed to raise the Doyle issue at his trial or at any point during his direct appeal. See Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976). “If a criminal defendant could have raised a claim of error on direct appeal but nonetheless failed to do so, he must demonstrate both cause excusing his procedural default and actual prejudice resulting from the claim of error.” United States v. Johnson, 988 F.2d 941, 945 (9th Cir.1993) (citing United States v. Frady, 456 U.S. 152, 167-68 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982)).

Bernard stumbles at the first of the two hurdles — he.fails to demonstrate cause for failing to object to the alleged Doyle error at trial or on direct appeal. “So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established…