Davis

MEMORANDUM *

Robert Byron Davis appeals from denial of his petition for habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254. This court granted Davis’s application for a Certificate of Appealability, and we have jurisdiction under 28 U.S.C. §§ 1291 and 2253.

I

Davis’s argument that the Montana Supreme Court violated his federal constitutional right to due process by fading retroactively to apply State v. Hall, 297 Mont. 111, 122 , 991 P.2d 929 (1999), is procedurally defaulted. Mont.Code Ann. § 46-16-410(3). Davis makes no argument for cause or prejudice. Coleman v. Thompson, 501 U.S. 722, 750-51 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). Accordingly, the Montana Supreme Court’s ruling is an independent state ground that we cannot review unless that ground is inadequate.

II

We are not persuaded that the independent state ground is inadequate on account of Bennett v. Mueller, 296 F.3d 752 (9th Cir.2002), amended by 322 F.3d 573 (9th Cir.2003). Of the cases applying Mont. Code Ann. § 46-16-410 (3) before State v. Raugust, 300 Mont. 54, 57-58 , 3 P.3d 115 (2000); State v. Hatten, 297 Mont. 127, *606 141, 143 , 991 P.2d 939 (1999); State v. Grimes, 295 Mont. 22, 28-29 , 982 P.2d…