Tyrone Payne v. Leroy Kirkegard

MEMORANDUM

Montana state prisoner Tyrone Everett Payne appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as proeedurally defaulted. We have jurisdiction under 28 U.S.C. § 2258 , and we vacate and remand.

Payne contends that Mont.Code Ann. § 46-23-507, as interpreted by the state supreme court in his appeal, is unconstitutional under the principles set forth in Lambert v. California, 355 U.S. 225 , 78 S.Ct. 240 , 2 L.Ed.2d 228 (1957). Payne concedes that he did not raise this claim in state court. The district court correctly determined that he had failed to establish cause and prejudice for his default. See Coleman v. Thompson, 501 U.S. 722, 750 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991); Edwards v. Carpenter, 529 U.S. 446, 451-52 , 120 S.Ct. 1587 , 146 L.Ed.2d 518 (2000) (claim of ineffective assistance of counsel “must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default”) (internal quotations omitted).

Payne also argues that he is actually innocent of the crime of conviction and, therefore, excused from presenting his Lambert claim first in state court under…