Johnico
Johnico v. Chrones
Opinion
Lead Opinion
MEMORANDUM ***
Mr. Johnico contends that there was insufficient evidence under Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), to prove his two prior robbery convictions, and that appellate counsel rendered ineffective assistance by failing to raise that claim. As a threshold matter, we reject the government’s argument that Mr. Johnico has procedurally defaulted on his sufficiency of the evidence claim. The government waived that argument when it failed to assert it before the district court. Francis v. Rison, 894 F.2d 353, 355 (9th Cir.1990) (holding that when the state failed to argue that procedural default should bar a review on the merits of the habeas claims, it waived its procedural default argument in this Court).
However, while Mr. Johnico attempted to couch his argument in terms of the Due Process Clause before the district court, it is clear that his argument was, and remains, one of state law error. It is well-settled that alleged errors of state law are not the proper basis for habeas relief. Estelle v. McGuire, 502 U.S. 62, 67 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991); Smith v. Idaho, 392 F.3d 350, 357 (9th Cir.2004).