Trollope

MEMORANDUM **

Petitioner-Appellant Thomas Michael Trollope appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction on two counts of child molestation and one count of attempted sexual abuse.

1. The state failed to assert procedural default as a defense to Trollope’s petition before the district court, and the district court erred when it sua sponte found procedural default and barred Trollope’s pro se claim of newly discovered evidence. See Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir.2003) (“[W]e hold the state to its waiver and thus reverse the district court’s decision that [Trollope’s claim alleging newly discovered evidence was] procedurally defaulted.”) (citation omitted).

2. Trollope failed to show that either trial counsel’s or post-trial counsel’s representation fell below an objective stan *651 dard of reasonableness, or that he suffered prejudice. See Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Accordingly, the district court properly concluded that Trollope’s claims alleging ineffective assistance of counsel did not merit an evidentiary hearing. See Totten v. Merkle, 137…