Claus

MEMORANDUM **

Appellant Ivan J. Claus petitions for habeas corpus. He claims that his counsel in his trial for attempted murder and assault with a firearm was ineffective on two grounds. First, the counsel failed to seek a jury instruction on voluntary intoxication; second, he waived objection to admission of evidence of Claus’s prior bad acts. The relevant facts are known to the parties.

The government argues that we are procedurally barred from hearing Claus’s claims. The claims were contained in Claus’s second petition for habeas relief in the state court system. The California Supreme Court ultimately rejected them as untimely, citing In re Clark, 5 Cal.4th 750 , 21 Cal.Rptr.2d 509 , 855 P.2d 729 (1993). The government maintains that this is necessarily an adequate and independent state ground.

Claus urges that in citing to Clark without citing In re Robbins, 18 Cal.4th 770, 811 , 77 Cal.Rptr.2d 153 , 959 P.2d 311 (1998), to establish that Clark was being invoked as an adequate and independent state ground, the California Supreme Court issued an ambiguous ruling that failed to preempt federal habeas review. Harris v. Reed, 489 U.S. 255, 263 , 109 S.Ct. 1038 , 103 L.Ed.2d…