Scott

MEMORANDUM **

Petitioner Bobby J. Scott (“Scott”) appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We granted Scott’s request for a certificate of appealability as to the issue “whether the district court erred in denying [Scott’s] § 2254 petition as procedurally defaulted, including the question of whether the procedural default doctrine was waived when the government did not raise the issue.” We have jurisdiction under 28 U.S.C. § 2253 and affirm.

We conclude that the government did not waive the procedural default defense by not raising the issue in its motion to dismiss, despite the magistrate judge’s construal of the government’s motion to dismiss as an answer. See Morrison v. Mahoney, 399 F.3d 1042, 1046-47 (9th Cir. 2005). Further, the district court did not err in raising the procedural default issue sua sponte. See Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir.1998); see also Windham v. Merkle, 163 F.3d 1092, 1100-01 (9th Cir.1998).

We next consider whether the district court erred in denying Scott’s habeas petition as procedurally defaulted. “For the procedural default rule to apply, ..., the application of the state procedural…