Robert M. Latham v. Frank Prewitt

74 F.3d 1246 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Robert M. LATHAM, Petitioner-Appellant, v. Frank PREWITT, Respondent-Appellee. No. 95-35057. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 14, 1995. Decided Jan. 19, 1996. Before: BOOCHEVER, FERNANDEZ, and KLEINFELD, Circuit Judges. 1 MEMORANDUM * 2 We review de novo the decision to grant or deny a petition for writ of habeas corpus. McKenna v. McDaniel, 65 F.3d 1483, 1490 (9th Cir.1995). 3 There is a serious question of law whether the district court correctly refused to review the merits, because of Latham's procedural default, or whether the procedural default does not preclude merits review, because the state appellate court reviewed Latham's contentions on the merits, subject to a plain error standard. Because Latham's petition would fail whether we treated it on the merits or under the more stringent cause and prejudice standard applicable to errors forfeited in state court, we…