McPherson
McPherson v. Harrison
Opinion
Lead Opinion
MEMORANDUM **
Petitioner Von Laderas McPherson appeals the district court’s denial of his petition for writ of habeas corpus. We certified McPherson’s two ineffective assistance of counsel claims. We review the district court’s denial of a habeas petition de novo. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.2004). We affirm.
Respondent contends that because the California Supreme Court denied McPherson’s second state habeas petition on procedural grounds pursuant to In re Clark, 5 Cal.4th 750 , 21 Cal.Rptr.2d 509 , 855 P.2d 729 (1993), we may not properly review his claims. We agree with the district court that Respondent did not carry his initial burden to prove that the Clark bar is an adequate state procedural ground which precludes federal habeas review. See Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir.2003) (“[BJecause it is the [Respondent] who seeks dismissal based on the procedural bar, it is the [Respondent] who must bear the burden of demonstrating that the bar is applicable — in this case that the state procedural rule has been regularly and consistently applied in habeas actions.”). Therefore, we review McPherson’s claims on the merits.